Diary

IRS Never Bothered to Look For Lerner Emails; Also Claims No "Agency Bad Faith"

During the ongoing court case between Judicial Watch and the IRS, the IRS recently filed a “Defendant’s Opposition to the Plaintiff’s Motion Seeking Recovery”, protesting the continued FOIA requests regarding Lerner’s tapes.

Some remarkable information emerged. In the document, the IRS wrote that they have not searched IRS servers because “the servers would not result in the recovery of any information.”

The IRS further claimed no search was performed on the back-up tapes, because there was “no reason to believe that the tapes are a potential source of recovering” any lost emails.

What’s more, the IRS stated no there had not been a search on the government-wide back-up system because they had “no reason to believe such a system … even exists.” (contrary to earlier statements), and that the IRS didn’t submit “declarations about any of the foregoing items because it had no reason to believe that they were sources from which to recover information lost as a result of Lerner’s hard drive failure.”

So what did the IRS do? The IRS described how it collected information from IRS employees likely to be involved, “loaded that information onto an electronic server, processed it, and searched it”, creating what it calls “the Congressional database” for the purposes of the investigation. It is from there, and only there, that the IRS “is reviewing all documents in the Congressional database to determine whether they are responsive to Judical Watch’s FOIA requests”. Not email servers. Not back-up tapes. Not back-up systems.

So the IRS made a separate database, created from information it selected to go into the database, and searches that — hoping that database and search is satisfactory enough for the courts.

The IRS also protested Judicial Watch’s Motion Seeking Recovery on these grounds:

I. Judicial Watch is not Entitled to Discovery
II. Judicial Watch’s Motion is Premature
III. Judicial Watch’s Request for Discover is Inappropriately Broad and Vague|

The IRS specifically argued in its document that “the discovery is the rare exception in FOIA cases and should only be allowed under extraordinary circumstances, such as agency bad faith or conflicting declarations. No extraordinary circumstances are present here, and Judicial Watch cannot manufacture extraordinary circumstances through hearsay, innuendo, and bald assertions.”

In case anyone was wondering whether or not extraordinary circumstances, agency bad faith, or conflicting declarations applies, here’s a quick summary timeline produced by IJReview.

August 2013 – Congress issues the first subpoena for Lois Lerner’s emails from 1/1/2009 through 8/2/2013

September 2013 – Lerner resigns from the IRS.

October 2013 – House Oversight Committee issues second subpoena for the emails.

February 2014 – President Obama asserts to Bill O’Reilly that there was “not even a smidgen of corruption” at the IRS.

March 2014 – The IRS states the the emails from Lerner’s computers were removed, put in storage, but that they “are in fact searching” for them.

June 2014 – The IRS states that it has lost emails of other employees, all of which had been subpoenaed as well.

July 2014 – The IRS admits that it was told that the drives were likely able to be repaired, but opted to destroy them instead.

September 2014 – The IRS states that emails from more than 20 employees, all of which were were subpoenaed, were lost due to drive crashes.

November 2014 – The IRS admits that it never looked for the emails in the first place.

This court case will continue to drag on and on, hoping that enough time will pass that Americans will forget or lose interest in this scandal. Kudos to Judicial Watch for continuing to insist on information and integrity.