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Judicial Watch • Citing IRS Wrongdoing, Judicial Watch Asks Federal Court to Permit Discovery to Find ‘Missing’ Emails in IRS Abuse Scandal

Citing IRS Wrongdoing, Judicial Watch Asks Federal Court to Permit Discovery to Find ‘Missing’ Emails in IRS Abuse Scandal

Citing IRS Wrongdoing, Judicial Watch Asks Federal Court to Permit Discovery to Find ‘Missing’ Emails in IRS Abuse Scandal

SEPTEMBER 17, 2014

(Washington, DC) – Judicial Watch announced today that it has filed a Motion for Limited Discovery in its Freedom of Information (FOIA) lawsuit against the Internal Revenue Service (IRS) in order to force the agency to comply with federal court orders to produce information about how “lost and/or destroyed” IRS records relating to the targeting of conservative groups may be retrieved. The motion was filed on September 17, 2014, in the U.S. District Court for the District of Columbia, and requests a hearing for oral argument.  The matter is before U.S. District Court Judge Emmet Sullivan (Judicial Watch v. IRS (No. 1:13-cv-1559)).

Judicial Watch notes that this litigation “presents a rare case in which revelations about crashed hard drives and missing emails, conflicting public reports about backup systems, and material omissions to the Court raise serious questions about the agency’s compliance with FOIA.  Limited discovery is needed to answer these questions.”

In the new filing, Judicial Watch details how, during a July 10, 2014 status conference, “the Court ordered the IRS to provide sworn declarations from agency officials describing what happened to the laptop on which Ms. Lerner’s emails had been stored, how the missing emails may be retrieved from other sources, and what efforts, if any, the IRS had undertaken to obtain the missing emails from those sources.”

The IRS has filed a total of seven declarations omitting information required by the Court’s orders requiring the IRS to detail how “the missing emails could be retrieved from other sources and produced to Judicial Watch.”

The brief details an extraordinary series of events about the “missing” email issue:

In an August 22, 2014 telephone conference, IRS attorneys informed Judicial Watch about the existence of an electronic data backup system that stores all government records in the case of a catastrophic event.  The agency’s attorneys also asserted that the Treasury Inspector General for Tax Administration (“TIGTA”) is looking into whether some of these backup tapes may include the missing emails, but that the IRS would not search these tapes because doing so would allegedly be too onerous.  When Judicial Watch requested that the IRS supplement its declarations to include this material information, the IRS refused.

At least three different backup systems exist that may contain the missing emails, but “the IRS did not identify any of these systems” in its sworn declarations to the Court.

The following is a summary of the piecemeal and often contradictory information made public by the IRS to date, but which the IRS has failed to disclose to Judge Sullivan:

  • On June 20, 2014, IRS Commissioner John Koskinen testified under oath that the IRS confirmed that backup tapes from 2011 no longer exist because they had been recycled pursuant to the agency’s six-month retention cycle.    
  • On July 4, 2014, almost one week before the status conference held in this Court, IRS Legislative Affairs Director Oursler learned that backup tapes from the six-month retention cycle from 2011 indeed exist.
  • On July 17, 2014, IRS Deputy Associate Chief Counsel Thomas Kane testified under oath during a transcribed interview before Congress that certain backup recovery tapes from the six-month retention schedule may still exist.
  • On August 22, 2014, IRS attorneys admitted to Judicial Watch that a government-wide backup system exists in the event of a catastrophic event.  The IRS attorneys also disclosed that TIGTA was looking at several of these backup tapes.
  • On September 5, 2014, House Government Affairs Subcommittee Chairman Jim Jordan reported that 760 exchange server drives from the IRS have been located and may contain at least some of the missing records.

Judicial Watch says this information raises serious questions:

“The existence of these additional storage systems for IRS records and the IRS’s failure to disclose these systems to the Court is deeply troubling.  They raise serious questions about the IRS’s candor in responding to the Court’s orders and its good faith in processing Judicial Watch’s FOIA requests.  Even more troubling is that the IRS appears to have knowingly omitted this crucial information from its declarations, two of which were submitted by IRS Counsel Thomas Kane, who had knowledge of at least some backup tapes as early as July 17, 2014.”

Judicial Watch is also seeking information about missing documents from as many as eight additional IRS officials involved in targeting Tea Party and conservative groups.  Judicial Watch argues that the IRS’s unwillingness to provide this and other crucial information: “information that the IRS was ordered to disclose to this Court, under oath, more than two months ago – demonstrates that the only way the information is ever likely to be provided is if discovery is allowed and Judicial Watch is permitted to cross-examine agency witnesses…”

In May 2013, Judicial Watch submitted four separate FOIA requests for IRS communications concerning the IRS scandal.  After the IRS failed to provide the information, Judicial Watch filed a FOIA lawsuit on October 9, 2013. The IRS began producing, under court order, documents to Judicial Watch in February but did not inform the Court or Judicial Watch of Lerner’s or other’s “missing” emails.

On July 10, 2014, Judge Sullivan granted a Judicial Watch request for a status hearing to discuss allegedly missing emails from Lerner and other IRS officials.  The hearing resulted in Judge Sullivan issuing two orders (dated July 10 and August 14).  The IRS was ordered to detail under oath how some of the emails of former agency official Lois Lerner became missing and/or destroyed, where they might be located, and what steps were being taken to retrieve them.

In addition to helping uncover the issue of “missing” IRS documents, this Judicial Watch lawsuit resulted in a number of new disclosures about the IRS scandal that brought new attention to the issue from Congress and some in the media.

At a July 23 House Oversight subcommittee hearing on the “missing” emails, Rep. Jordan credited Judicial Watch in exposing the truth about the IRS missing email cover-up when questioning IRS Commissioner John Koskinen. “My theory is this, Mr. Koskinen,” Jordon said, “you guys weren’t ever going tell us until we caught you. And we caught you because Judicial Watch did a FOIA request.”

“The Obama IRS has ignored Judge Sullivan’s orders to provide full information about the ‘missing’ Lois Lerner emails,” said Judicial Watch President Tom Fitton. “To put it plainly, we’re asking the Court to allow Judicial Watch attorneys to put IRS and other administration officials under oath about the IRS’s missing email cover-up.  At this point, our lawsuit is the surest way for the public to get all the information to which it is entitled about Obama IRS abuse scandal.”


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