- The Washington Times - Thursday, August 7, 2014

The Obama administration admitted Thursday that it has lost emails from the key official who oversaw the botched federal Obamacare rollout last year, and the health department may have broken the law by failing to report the lost emails to the National Archives.

Marilyn Tavenner, head of the Centers for Medicare and Medicaid Services, thought she had saved the emails as official records but now realizes they “might not be retrievable,” the Health and Human Services Department said in a letter to Congress detailing the problem.

Coming on top of the Internal Revenue Service scandal, in which key figure Lois G. Lerner’s emails apparently disappeared in a hard-drive crash, the revelation is the latest dent in President Obama’s vow to run a transparent administration.

“The Obama administration has lost or destroyed emails for more than 20 witnesses, and in each case, the loss wasn’t disclosed to the National Archives or Congress for months or years, in violation of federal law,” said House Oversight and Government Reform Committee Chairman Darrell E. Issa, a California Republican who has been leading congressional investigations into IRS targeting and into Obamacare.

Mr. Issa said he only now found out about the lost emails, in a letter from an assistant secretary, despite having issued a subpoena for the documents in October.

“Yet again, we discover that this administration will not be forthright with the American people unless cornered,” Mr. Issa said.

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Aaron Albright, a spokesman for Ms. Tavenner, said the “vast majority” of her emails are likely retrievable and more than 71,000 that have been identified might be responsive to the subpoena.

He said that set of emails has no “significant chronological gaps.”

But HHS didn’t inform the National Archives of the lost emails until Wednesday, a day before the department told Congress.

“Based on a recent analysis of emails (which was completed on July 31, 2014) undertaken in connection with a request from a congressional committee, it appears that most, but not all, of the Administrator’s email records were sent within HHS and therefore were likely saved within HHS records,” Kathleen Cantwell, an HHS records management official, said in an official notification to the Archives.

“While we have not identified any specific emails that we will be unable to retrieve, it is possible that some emails may not be available to HHS, and we are therefore filing this memorandum,” she wrote.

HHS said it didn’t know for sure that records were lost, but it was filing the notice “out of an abundance of caution.”

The IRS took heat this year for failing to inform the Archives that some of Ms. Lerner’s emails were destroyed in a 2011 computer hard-drive crash. Under federal rules, the Archives must be notified whenever potential official records required to be stored for posterity are lost.

In Ms. Lerner’s case, the Justice Department is looking into the loss of emails as part of a broader criminal investigation into IRS targeting of conservative groups.

Mr. Obama took office promising to make transparency a priority, but his agencies have come under fire repeatedly for delays and problems with meeting open records laws.

A Washington Times analysis last month found that few agencies have policies governing storage of instant chats or text messages, even though they are considered electronic records subject to open records laws. HHS, however, was one of the few agencies surveyed by The Times that did have a policy.

Democrats say document retention problems go back years and appear to be a system issue.

“This is another example of why we need to update and strengthen the policies surrounding the preservation of email records across all federal agencies, which my legislation would do,” said Rep. Elijah Cummings, the ranking Democrat on the oversight committee.

He has written a bill to require the government to store email records electronically — currently some agencies have a policy that emails are to be printed out in paper form. Mr. Cummings’ legislation would also update standards for what records are required to be stored.

In its notification this week, HHS also presented the Archives with the outlines of its plan to prevent record losses in the future, including ensuring training and, eventually, creating a system to automatically store all senior officials’ emails.

Congress has been probing HHS management of the federal HealthCare.gov portal for buying insurance under the Affordable Care Act after the website was plagued with glitches. The administration had to extend the enrollment deadlines to sign up more consumers.

House Republicans have questioned whether officials launched the site despite cybersecurity warnings.

Ms. Tavenner’s emails are part of those probes.

In his notification to Mr. Issa, HHS Assistant Secretary Jim R. Esquea said staffers have spent a combined 23,000 hours trying to respond to the committee’s requests, including providing nearly 135,000 pages of documents and submitting to more than a dozen interviews with current or former department employees.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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