- The Washington Times - Sunday, July 20, 2014

The Lois G. Lerner emails released this month revealed a potentially huge loophole in federal open-records practices when an IRS tech staffer acknowledged that the agency doesn’t regularly store — and never checks — instant message chats as official government records.

Analysts say there is no question that the Internal Revenue Service and all other federal agencies should be storing chats and even cellphone text messages that may constitute official government documents, but a check by The Washington Times suggests that hardly any agency is doing so.

Of 17 agencies surveyed by The Times, just two said they had policies requiring instant messages to be stored as official, searchable records.

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One agency said it doesn’t allow use of text or chat, six agencies said they didn’t have specific policies or were working on language to cover modern technology, and another eight agencies did not provide any answers about their policies despite multiple requests.

“We are disappointed, though not surprised, to hear that federal agencies don’t have policies in place to protect this type of information from being destroyed,” said Emily Grannis, a legal fellow at the Reporters Committee for Freedom of the Press.

“Texts, instant messages, voice mails and other quick, informal types of communications have long been considered public records under state and federal freedom of information laws, and have become so ubiquitous that often those are the only records we have of how decisions are made,” Ms. Grannis said. “The government should take extra care to ensure those records are preserved instead of casually allowing them to disappear.”

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Open-records laws require federal departments and agencies to store key documents that show official decision-making. The practice preserves the records for contemporaneous and future research on how the government works. The laws were drawn up when all records were put on paper, but have been updated to include electronic communications.

Agencies appear to have adopted rules for handling email, but even that technology is being supplanted. Government officials are scrambling to keep up.

The National Archives and Records Administration, which is responsible for preserving federal records, recommends that documents that aren’t stored automatically, such as text messages, be forwarded, pasted into emails or otherwise memorialized.

The same rules apply to phone conversations and voice mail messages, though it’s unclear how many government employees are taking and storing notes of those communications, either.

The issue of whether instant messages and texts from mobile devices are being stored has been percolating for years among those charged with thinking about government transparency and open-records requests.

Last week, however, a release of emails showed that Ms. Lerner asked whether instant-message chats were stored. The former IRS employee at the center of the tea party targeting scandal raised the question in the middle of what appeared to be a discussion about how to hide information from Congress.

A tech staffer replied that each person could change settings to determine whether conversations on the IRS chat system, the Office Communications Server, were stored automatically, though the default was not to store chats. He also said the document search tool didn’t include chats that were stored, so those messages wouldn’t come up in open-records requests.

“I was cautioning folks about email and how we have had several occasions where Congress has asked for emails and there has been an electronic search for responsive emails — so we need to be cautious about what we say in emails,” Ms. Lerner wrote. “Someone asked if OCS conversations were also searchable — I don’t know, but told them I would get back to them. Do you know?”

The staffer replied: “OCS messages are not set to automatically save as the standard; however the functionality exists within the software. That being said the parties involved in an OCS conversation can copy and save the contents of the conversations to an email or file.”

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