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IRS OBSTRUCTION: LOIS LERNER’S MISSING 

EMAILS, PART II 

HEARING 

BEFORE THE

COMMITTEE ON OVERSIGHT 

AND GOVERNMENT REFORM 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

JUNE 24, 2014 

Serial No. 113–127 

Printed for the use of the Committee on Oversight and Government Reform 

( 

Available via the World Wide Web: http://www.fdsys.gov 

http://www.house.gov/reform 

(II) 

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM 

DARRELL E. ISSA, California, Chairman 

JOHN L. MICA, Florida 

MICHAEL R. TURNER, Ohio 

JOHN J. DUNCAN, JR., Tennessee 

PATRICK T. MCHENRY, North Carolina 

JIM JORDAN, Ohio 

JASON CHAFFETZ, Utah 

TIM WALBERG, Michigan 

JAMES LANKFORD, Oklahoma 

JUSTIN AMASH, Michigan 

PAUL A. GOSAR, Arizona 

PATRICK MEEHAN, Pennsylvania 

SCOTT DESJARLAIS, Tennessee 

TREY GOWDY, South Carolina 

BLAKE FARENTHOLD, Texas 

DOC HASTINGS, Washington 

CYNTHIA M. LUMMIS, Wyoming 

ROB WOODALL, Georgia 

THOMAS MASSIE, Kentucky 

DOUG COLLINS, Georgia 

MARK MEADOWS, North Carolina 

KERRY L. BENTIVOLIO, Michigan 

RON DESANTIS, Florida 

ELIJAH E. CUMMINGS, Maryland, Ranking 

Minority Member 

CAROLYN B. MALONEY, New York 

ELEANOR HOLMES NORTON, District of 

Columbia 

JOHN F. TIERNEY, Massachusetts 

WM. LACY CLAY, Missouri 

STEPHEN F. LYNCH, Massachusetts 

JIM COOPER, Tennessee 

GERALD E. CONNOLLY, Virginia 

JACKIE SPEIER, California 

MATTHEW A. CARTWRIGHT, Pennsylvania 

TAMMY DUCKWORTH, Illinois 

ROBIN L. KELLY, Illinois 

DANNY K. DAVIS, Illinois 

PETER WELCH, Vermont 

TONY CARDENAS, California 

STEVEN A. HORSFORD, Nevada 

MICHELLE LUJAN GRISHAM, New Mexico 

Vacancy 

LAWRENCE J. BRADY, Staff Director 

JOHN D. CUADERES, Deputy Staff Director 

STEPHEN CASTOR, General Counsel 

LINDA A. GOOD, Chief Clerk 

DAVID RAPALLO, Minority Staff Director 

(III) 

C O N T E N T S 

Page 

Hearing held on June 24, 2014 ............................................................................... 1 

WITNESSES 

Ms. Jennifer O’Connor, Office of the White House Counsel, The White House 

Oral Statement ................................................................................................. 6 

The Hon. David S. Ferriero, Archivist of the U.S., National Archives and 

Records Administration 

Oral Statement ................................................................................................. 7 

Written Statement ............................................................................................ 9 

Mr. Paul Wester, Chief Records Officer, National Archives and Records Administration 

Oral Statement ................................................................................................. 12 

APPENDIX 

Opening Statement of Chairman Issa ................................................................... 76 

June 18, 2014, letter from the White House to Reps. Camp and Wyden, 

submitted by Rep. Horsford ................................................................................ 81 

Opening Statement of Rep. Cummings .................................................................. 82 

Aug 29, 2013, NARA Bulletin, subject: Guidance, submitted by Rep. 

Duckworth ............................................................................................................ 84 

Nov. 21, 2013, TIGTA Press Release, submitted by Chairman Issa ................... 90 

June 23, 2014, letter from the White House to Chairman Issa ........................... 92 

May 14, 2013, TIGTA Highlights of a report, submitted by Rep. Lynch ............ 94 

April 7, 2014, Majority Staff Report ‘‘Debunking the Myth that the IRS 

Targeted Progressives’’ submitted by Chairman Jordan .................................. 95 

Aug. 2, 2013, letter from IRS to Chairmen Issa and Jordan, submitted by 

Rep. Davis ............................................................................................................. 142 

June 18, 2014, Politico Article ‘‘White House hits back in IRS-Lois Lerner 

flap’’ ....................................................................................................................... 149 

Letter providing update on IRS document productions to Congress ................... 150 

(1) 

IRS OBSTRUCTION: LOIS LERNER’S MISSING 

EMAILS, PART II 

Tuesday, June 24, 2014 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM, 

WASHINGTON, D.C. 

The committee met, pursuant to call, at 9:35 a.m., in Room 2154, 

Rayburn House Office Building, Hon. Darrell E. Issa [chairman of 

the committee] presiding. 

Present: Representatives Issa, Mica, Turner, Duncan, McHenry, 

Jordan, Chaffetz, Walberg, Gosar, Meehan, DesJarlais, Gowdy, 

Farenthold, Lummis, Woodall, Collins, Meadows, Bentivolio, 

DeSantis, Cummings, Maloney, Norton, Tierney, Clay, Lynch, 

Connolly, Speier, Duckworth, Kelly, Davis, Welch, Horsford, and 

Lujan Grisham. 

Staff Present: Molly Boyl, Deputy General Counsel and Parliamentarian; Lawrence J. Brady, Staff Director; David Brewer, Senior Counsel; Ashley H. Callen, Deputy Chief Counsel for Investigations; Sharon Casey, Senior Assistant Clerk; Steve Castor, General 

Counsel; Drew Colliatie, Professional Staff Member; John 

Cuaderes, Deputy Staff Director; Adam P. Fromm, Director of 

Member Services and Committee Operations; Linda Good, Chief 

Clerk; Tyler Grimm, Senior Professional Staff Member; Erin Hass, 

Senior Professional Staff Member; Frederick Hill, Deputy Staff Director for Communications and Strategy; Christopher Hixon, Chief 

Counsel for Oversight; Mark D. Marin, Deputy Staff Director for 

Oversight; Ashok M. Pinto, Chief Counsel, Investigations; Jeffrey 

Post, Senior Professional Staff Member; Laura L. Rush, Deputy 

Chief Clerk; Jessica Seale, Digital Director; Andrew Shult, Deputy 

Digital Director; Jonathan J. Skladany, Deputy General Counsel; 

Peter Warren, Legislative Policy Director; Rebecca Watkins, Communications Director; Aryele Bradford, Minority Press Secretary; 

Susanne Sachsman Grooms, Minority Deputy Staff Director/Chief 

Counsel; Jennifer Hoffman, Minority Communications Director; 

Elisa LaNier, Minority Director of Operations; Juan McCullum, Minority Clerk; Valerie Shen, Minority Counsel; Donald Sherman, Minority Chief Oversight Counsel; Katie Teleky, Minority Staff Assistant; and Michael Wilkins, Minority Staff Assistant. 

Chairman ISSA. Good morning. The committee will come to order. 

Without objection, the chair is authorized to declare a recess of 

the committee at any time. 

As I said last night late for many of you, and I say again this 

morning, the Oversight Committee exists to secure two fundamental principles: First, Americans have a right to know that the 

2 

money Washington takes from them is well spent; and second, 

Americans deserve an efficient, effective government that works for 

them. 

Our duty on the Oversight and Government Reform Committee 

is to protect these rights. Our solemn responsibility is to hold government accountable to taxpayers, because taxpayers have a right 

to know what they get from their government. It’s our job to work 

tirelessly, in partnership with citizen watchdogs, to deliver the 

facts to the American people and bring genuine reform to the Federal bureaucracy. This is our mission, this is our passion, and this 

is what we are here for today. 

The committee meets today to continue our effort to get to the 

truth about the IRS’s targeting of conservative groups. Last night, 

we heard testimony from the Commissioner about how and why the 

IRS came to not save and, in fact, to destroy the disk drive that 

contained emails of the now well understood and criminally 

charged by the House former head of the Exempt Organizations, 

Lois Lerner. And I say that again: Lois Lerner has been referred 

for criminal charges, multiple criminal charges by the Ways and 

Means Committee and held in contempt by the full House. Her 

disk drive is missing. 

His testimony included a number of significant admissions and 

facts. For example, the Commissioner testified that he has seen no 

evidence that there was any attempt in 2011 to retrieve 6 months 

of lost Lois Lerner emails from backup tapes or, in fact, from the 

main hard drive of the server. He testified that he does not know 

who at the IRS was involved in leaking the knowledge about Lois 

Lerner’s emails to Treasury and on to the White House. He further 

testified that he did not believe leaking to the White House was a 

problem because the White House itself does not leak information. 

We will chalk that one up to naive, not perjury. He testified that 

because he does not know what was in Lois Lerner’s email, he has 

no grounds to believe they contain Federal records. 

While I appreciate his time and effort, our relationship with the 

IRS and the Commissioner was not improved by his disappointing 

performance. In fact, one of the most troubling portions of his testimony was to tell us that someone, who he could not name, who 

worked for him, had told him sometime in the entire month of 

April, not the 1st of April, not the 15th of April, when we all have 

to pay our taxes, and not the end of April, but just sometime in 

a 30-day period someone, he could not remember, had told him one 

of the most important pieces of information any of us could imagine, that thousands, tens of thousands, or perhaps more emails of 

Lois Lerner were gone forever. 

I hope the witnesses before us today can help us understand further how we can have an agency that expects all Americans to 

maintain critical documents for at least 7 years and, in fact, the 

agency itself systematically destroys records after 6 months. They 

are worried about data integrity for a catastrophic event but not 

for criminal wrongdoing of their own employees, not for waste, 

fraud, and abuse within the agency. 

This is an agency the Commissioner was sent to fix. This is an 

agency that had lavish partners and did not even live up to the requirement for tax filing by its own members when it held a party, 

3 

complete with a very expensive video, at Disneyland. This is an 

agency that targeted conservatives for their political beliefs, that 

asked them for who their donors were and whether they said prayers at the beginning of an event. What they did in every way and 

held out their application for 501(c)(4) like a carrot, never informing them that even the President’s 501(c)(4) wasn’t registered. 

Today, the committee will hear testimony from Jennifer O’Connor, a former IRS attorney who directly managed the IRS’s production, or lack thereof, of documents to this committee and others. 

During a transcribed interview last year, IRS Chief Counsel William Wilkins testified that Ms. O’Connor was one of the two key 

supervisors overseeing the IRS’ response to congressional oversight. 

In fact, Ms. O’Connor was hired by the IRS for the sole purpose 

of overseeing the agency’s response to congressional investigations 

of the targeting scandal. From May 2013 to November 2013, Ms. 

O’Connor led the IRS’ response to congressional oversight of the 

IRS’ targeting of conservatives. 

In May of this year, Ms. O’Connor was promoted to the White 

House Counsel’s office to work on responding to all congressional 

oversight across the entire administration. The IRS supposedly has 

spent $10 million in its response to Congress. I am hoping Ms. 

O’Connor will enlighten us about how the IRS spent so much of the 

taxpayers’ money but supposedly took them over a year to realize 

2 years of emails from the most critical witness had gone missing 

and, in fact, that same year since she first took the Fifth. The idea 

that the IRS just didn’t notice is without believability. 

We will also want to know from Ms. O’Connor how the White 

House came to have insider knowledge about Ms. Lerner’s missing 

emails and, more broadly, what role the White House plays in this 

investigation. 

Today we will also hear from the Archivist of the United States, 

David Ferriero, about the rules and regulations for preserving Federal records. These laws include the Federal Records Act that were 

put in place precisely for the purpose of preserving important Federal records. In particular, I want to ask the Archivist about one 

claim the Commissioner made last night. The Commissioner said 

the IRS did not report a loss or destruction of Federal records because there is no way to know what was in Ms. Lerner’s missing 

emails. But, in fact, we do know some things about where—that 

were in Ms. Lerner’s lost emails. We know that, from 2010, email 

correspondence we found at the Department of Justice, that Ms. 

Lerner sent over 1.1 million pages of a database to assist the possible prosecution of those same groups that were targeted, and that 

that information included 6103 personal identifiable information, 

including donors. 

I am hoping the Archivist can offer an opinion about whether 

such correspondence and documents are, in fact, covered by the 

Federal Records Act and whose loss and destruction would and 

should have been reported in 2011. 

The hearing today continues the committee’s oversight efforts of 

the IRS’ targeting to get to the basic answers for the American people. The committee will continue to aggressively search for answers 

about how and why the IRS allowed to be destroyed Lois Lerner’s 

4 

emails. This information is critical to the committee’s investigation 

of the IRS targeting of conservative organizations. 

I might add in closing, the Archivist is a welcome friend of this 

committee. The Archives fall within our primary jurisdiction. We 

take great pride in the work that the National Archives does. Just 

last night, very proudly, I showed to the Commissioner and put in 

the record a little piece of history of General Jackson demanding 

that his government in 1803 return some of the tax revenue taken 

from him for liquor that could never be produced because his still 

burned. That is a piece of history that was not covered by the Federal Records Act. But because of the unique work that National Archives does, often with volunteers from around America who come 

and study and research, we know what we did not know then and 

would have not ever demanded to store. 

So I would say here today to my ranking member and to all the 

members of the committee, the Federal Records Act is a minimum 

of what must be stored. But there can be no limit to the maximum 

of what will benefit generations unborn if we can preserve a greater amount of documents with the massive capability that our electronic era gives us. 

With that, I recognize the ranking member. 

Mr. CUMMINGS. Good morning. 

And I welcome the opportunity to hear this morning from the Archivist of the United States about outstanding challenges at Federal agencies with electronic records retention. During the Bush 

administration, Federal agencies admitted to losing millions, millions of emails related to ongoing congressional and criminal investigations, including the U.S. attorney firings and the outing of covert CIA agent Valerie Plame, and a host of other matters. 

Our committee played an integral role in investigating these 

problems. Representative Henry Waxman, our former chairman, 

engaged in a constructive effort to find solutions to these challenges. He hosted monthly meetings with the Archivist and the 

White House Counsel’s Office to monitor progress in implementing 

recommendations. 

I believe the Archivist would agree with his predecessor that 

those meetings served a useful purpose. 

Today, the White House system automatically preserves emails 

from all employee email accounts. Since 2008, there has been additional progress. On November 28, 2011, President Obama issued a 

directive to agencies managing Federal records. The President also 

directed the Archivist and the Director of the Office of Management 

and Budget to craft a modernized framework to improve agency 

performance and begin managing email records in electronic formats by 2016. I look forward to hearing a status report on these 

efforts. 

Also, the Archivist, Mr. Ferriero, will give us his view on legislation I introduced last year, the Electronic Message Preservation 

Act, which would require Federal agencies to preserve email 

records electronically. The committee voted on a bipartisan basis to 

approve my legislation, but it has languished since then. And the 

Republican leaders have declined to bring it to the floor for a vote. 

Although today’s hearing could have the potential to help improve 

agency systems for managing electronic records, I was just made 

5 

last night that Chairman Issa issued a unilateral subpoena to compel Ms. O’Connor to appear here today. Today’s hearing title is, 

‘‘Lois Lerner’s Missing Emails.’’ 

It is true that Ms. O’Connor used to work at IRS. She worked 

there from May to November of last year. The problem is that Ms. 

O’Connor left the IRS 7 months ago, in 2013, well before these recent discoveries about Lois Lerner’s emails. As Commissioner 

Koskinen testified last night, IRS officials learned there was a potential problem in February of 2014. And it was not until May of 

2014 that they understood the scope of the problem, completed 

their investigation, and determined the extent to which emails 

were available or not. 

Ms. O’Connor left the IRS before any of these discoveries occurred. So why is she here? According to the chairman’s own press 

release, it’s not because of her old job; it’s because of her new one. 

She currently works at the White House Counsel’s Office. She has 

worked there for less than a month. One month. But apparently 

that’s enough to warrant a subpoena from the committee. 

Last night, the Republicans demanded to know when the White 

House first became aware that the IRS was having difficulty locating Ms. Lerner’s emails. I am sure my colleagues will repeat those 

questions today over and over and over and over again. But we already know the answer. The White House sent a letter to Congress 

on June 18th, and it said this, ‘‘In April of this year, Treasury’s Office of General Counsel informed the White House Counsel’s Office 

that it appeared Ms. Lerner’s custodial email account contained 

very few emails prior to April 2011 and that the IRS was investigating the issue and, if necessary, would explore alternate means 

to locate additional emails.’’ That was in April. 

But Ms. O’Connor did not start her job at the White House until 

at least a month later. 

I ask unanimous consent to enter this June 18th letter into the 

record. 

Chairman ISSA. Without objection, so ordered. 

Mr. CUMMINGS. Today’s hearing is not about policy. Today’s hearing is not about policy or substance. It’s about politics and press. 

Today, Ms. O’Connor will join the ranks of dozens of other officials 

during Chairman Issa’s tenure who have been hauled up here unnecessarily, without a vote, without any debate, as part of a partisan attempt to generate headlines with unsubstantiated accusations against the White House. Regardless of how many times the 

Republicans claim the White House was behind the IRS actions, 

there is still no evidence, none, that the White House was involved 

in any way with screening applicants for tax-exempt status. No one 

of the 41 witnesses we have interviewed has identified any evidence of White House involvement or political motivation. Not one. 

And the inspector general has also, by the way, who was appointed 

by President Bush, has also identified no evidence to support these 

baseless claims. Issuing a subpoena to a White House lawyer does 

not change that fact. 

I sincerely hope that today’s hearing will focus on a serious examination of the longstanding and widespread challenges of retaining electronic records and on constructive solutions. And I actually 

look forward to the statements of our witnesses. 

6 

With that, Mr. Chairman, I yield back. 

Chairman ISSA. I thank the gentleman. 

Members may have 7 days to submit opening statements for the 

record. 

It’s now my pleasure to welcome our panel of witnesses. Ms. Jennifer O’Connor is an attorney currently in the Office of the White 

House Counsel and, prior to that, as Mr. Cummings said, worked 

as the primary deliverer of discovery to this committee while at the 

IRS. 

The Honorable David Ferriero is the Archivist of the United 

States at the National Archives and Records Administration. Additionally, Mr. Ferriero has asked that he be accompanied by Paul 

Wester, the chief records officer at the National Archives and 

Records Administration. 

And as I understand and I ask unanimous consent that he also 

be allowed to join the panel and answer questions. And he will be 

sworn in. And my understanding, for all of us, is that in fact Mr. 

Wester is the man most knowledgeable of and working with the 

CIOs throughout government to ensure that the Records Act, or the 

Federal Records Act and Presidential Records Act, are adhered to 

and, as a result, is in fact—and Mr. Ferriero, I appreciate your 

bringing him—the man who probably knows the most about what 

has been asked of government and what government could and 

should deliver, and at what budget. 

So, with that, I would ask that you all please rise pursuant to 

the committee rules and take the oath. 

Please raise your right hands. High, please. 

Thank you. 

Do you solemnly swear or affirm the testimony you are about to 

give will be the truth, the whole truth, and nothing but the truth? 

Thank you. 

Please be seated. Let the record reflect that all witnesses answered in the affirmative. 

For those who have not testified here before, there is a 5-minute 

clock in front of you. I do not gavel people at 5 minutes, but I 

would ask that as you see it go yellow, summarize. As you see it 

go red, bring it to a conclusion as quickly as possible. 

Ms. O’Connor, please give us your opening statement. 

WITNESS STATEMENTS 

STATEMENT OF JENNIFER O’CONNOR 

Ms. O’CONNOR. Chairman Issa, Ranking Member Cummings, 

and members of the committee, my name is Jennifer O’Connor. I 

am an attorney by training. I practiced for many years at the law 

firm Wilmer Hale, where I managed large complex litigation matters. 

On May 30 of 2013, I joined the IRS as counselor to Acting Commissioner Werfel. I left that position on November 30th of 2013. I 

understand the committee is interested in my time at the IRS, and 

I look forward to answering all of your questions today. Thank you. 

Chairman ISSA. Thank you. 

Mr. Ferriero. 

7 

STATEMENT OF THE HONORABLE DAVID S. FERRIERO 

Mr. FERRIERO. Chairman Issa, Ranking Member Cummings, and 

members of the committee, thank you for this opportunity to provide testimony on maintaining email records in Federal agencies 

and NARA’s response to the recent reports regarding the alleged 

unauthorized disposal of email records at the IRS. 

Accompanying me today is Paul Wester, the chief records officer 

of the United States Government and a member of my senior management. 

First, concerning the reported unauthorized disposal, Federal 

agencies are responsible for preventing the unauthorized disposition of Federal records, including their unlawful or accidental destruction, deletion, alteration, or removal from Federal custody. 

Agencies should carefully monitor the implementation of approved 

record schedules to prevent such unauthorized destruction. 

In accordance with the Federal Records Act, when an agency becomes aware of an incident of unauthorized destruction, they must 

report the incident to us. The report should describe the records, 

the circumstances in which the unauthorized destruction took 

place, and the corrective steps being taken to properly manage the 

records in the future. If we hear about the incident before the agency has reported it, we will notify the agency and request similar 

information. The goal of this process is to ensure that the circumstances that may have led to the loss of Federal records are 

corrected and not repeated. 

NARA learned of the alleged unauthorized disposal of the IRS 

records through a letter, dated June 13th, 2014, from the IRS to 

Senators Wyden and Hatch. In this letter, the IRS reported the 

loss of email records of Lois Lerner, the former head of IRS Exempt 

Organizations Division, dating from 2009 to 2011, as a result of the 

failure of a hard drive. 

Accordingly, NARA asked the IRS to investigate the alleged disposal of records, and whether it was broader than was reported in 

the June 13th, 2014 letter. As is typical when we send a letter such 

as this, we asked for a response within 30 days. 

On a daily basis, NARA staff and records and information professionals in each Federal agency work to ensure records management 

policies and practices meet the needs of the agencies, protect the 

rights and interests of the government and its citizens, and identify 

the permanently valuable records that document the national experience. 

In November 2011, the President issued a memorandum on managing government records, which resulted in the Archivist of the 

United States and the Director of OMB issuing the Managing Government Records Directive in August 2012. It has two high level 

goals: First, require electronic record keeping to ensure transparency, efficiency, and accountability; and second, demonstrate 

compliance with Federal records management statutes and regulations. There are a number of activities associated with each of 

these goals, but the two major actions are by the end of 2016, Federal agencies must manage all email records in an electronic format, and by the end of 2019, all permanent electronic records in 

Federal agencies will be—all permanent records in Federal agencies will be managed electronically to the fullest extent possible. 

8 

The effective management of email is a central animating issue 

for the National Archives as we work to meet the requirements of 

the directive. To help agencies meet the goal of managing their 

email in electronic form by the end of 2016, NARA has issued updated email guidance, known as Capstone. NARA developed the 

Capstone approach as part of our ongoing efforts to evaluate how 

agencies have used various email repositories to manage email 

records. They provide agencies with a workable and cost-efficient 

solution to email records management challenges, especially as 

they consider cloud-based solutions. It also offers the agencies the 

option of using a simplified and automated approach to manage 

email, as opposed to either print and file or click and file systems 

that require staff to file individual email records. The Capstone approach allows for the capture of records that should be preserved 

as permanent from the accounts of officials at or near the top of 

an agency or an organizational subcomponent. An agency may designate email accounts of additional employees as Capstone when 

they are in positions that are likely to create or receive permanent 

email records. Following this approach, an agency can schedule all 

of their email in Capstone accounts as permanent records. The 

agency should then schedule the remaining email accounts in the 

agency or organizational unit which are not captured as permanent 

as temporary and preserve all of them for a set period of time 

based on the agency’s needs. 

The Capstone approach is part of our initial effort in providing 

assistance to agencies to enable them to meet the email records requirement in the directive. We will continue to provide additional 

information and guidance as we strive to meet all of the directive’s 

mandates. 

Thank you for the opportunity to appear today. Mr. Wester and 

I look forward to answering your questions about Federal records. 

Chairman ISSA. Thank you. 

[Prepared statement of Mr. Ferriero follows:] 

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Insert offset folio 1 here 89596.001
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Insert offset folio 2 here 89596.002
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Insert offset folio 3 here 89596.003
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Chairman ISSA. Mr. Wester, I understand you don’t have a formal opening statement. But in order to set the tone for the committee, if you would briefly tell the committee about what your relationship is with CIOs, how you are working with them, how you 

are working to hit the deadlines of Capstone on behalf of the Archivist, and of course the nature of how you receive documents, to the 

best of your knowledge, from Treasury and the IRS today, including the documents such as the ones we are discussing. If you could 

set the stage, I think that’s a good non partisan way to begin. 

STATEMENT OF PAUL WESTER 

Mr. WESTER. Okay. Thank you. I work with 100 staff members 

here in the Washington, D.C., area and around the country to provide records management assistance to all Federal agencies across 

the government, of which there are about 250 active agencies that 

we work with. The staff that works on records management policy 

activities at the National Archives works with the CIO Council, the 

Records Management Council, and other councils across the government to identify different ways that we need to approach this 

records management, electronic records management challenge. 

What we have been doing since the implementation of the directive 

back in August of 2013 is working with all of the different agencies 

across the government to figure out how we can meet the two deadlines that David outlined, which is by the end of the decade ensuring all agencies are managing their permanently valuable records 

in automated ways and also making sure that email records are 

being managed in automated ways with temporary and permanent 

emails by the end of 2016. 

So there has been a number of different activities which I can 

answer questions about as we go. But we work very closely with 

agency records officers across the government, including at Treasury and the Internal Revenue Service, so that they understand 

where we are trying to go with electronic records management as 

a government and understand what their obligations are with the 

Federal Records Act and the directive itself and how we try to 

bring those two things together to make effective records management work across the government. 

Chairman ISSA. Thank you. 

I will now recognize myself for a series of questions. 

Mr. Ferriero, last night we finished late, so I wasn’t able to get 

to Best Buy. But 2 days before, I needed to acquire a storage device, so I spent about $150 and bought a 3 terabyte hard drive for 

about $149 plus sales tax. The IRS Commissioner last night told 

us that it would cost about $10 million if he was going to maintain 

the kind of data that we were interested in. The 80 or so depositories, as I understand, would have been a fraction of 3 terabytes, 

a fraction of $149 if they were simply moving them to a single NAS 

and then backing that up. 

So I guess, Mr. Wester, it may be more your bailiwick, but is it 

true realistically that a few hundred dollar drive and then a duplicate of that drive realistically would be able to hold all of the data 

that those 80 depositories typically set aside as important permanent documents? 

13 

Mr. WESTER. Chairman Issa, I think you identify one part of the 

larger records management challenge that we have to deal with, 

which is being able to store and preserve email and other electronic 

records. And as you identified, the costs of doing this are coming 

down tremendously. And that is not a huge factor within the issue 

that we are talking about. 

The issue that agencies are confronting is that they need to be 

able to organize that data and be able to provide access to it, which 

is separate from the storage piece. And that is where there are additional costs that agencies need to incur to be able to do that. 

Having said that, a lot of agencies, to be able to be responsive 

to FOIA requests, be responsible to committees like this one, to be 

responsible for other kinds of requests and business needs that 

they have, have to develop search capabilities to be able to access 

those materials that are on those drives. And so that is where some 

of the complexity and the costs start to add up. So as agencies are 

doing that kind of procurement anyway to be able to support their 

business needs, we believe that a purchase like the Capstone email 

approach allow agencies to be able to do that effectively. 

Chairman ISSA. Thank you. 

Mr. Ferriero, there is a document being put up on the board, 

dated October 6, 2010, in which Lois Lerner sent about 1.1 million 

documents, including personally identifiable 6103 information, to 

Department of Justice in order to aid potential prosecution. Have 

you viewed that email? 

Mr. FERRIERO. Yes, I have. 

Chairman ISSA. Would you say that that is a record under the 

Federal Records Act? 

Mr. FERRIERO. Not having access to the records schedule that 

was created by which this was—this message was created, it is an 

email that is record. Whether it’s a temporary record or a permanent record I can’t tell. 

Chairman ISSA. But when the Commissioner said that in fact he 

didn’t know if the lost emails, of which this is one, included items 

covered under the Federal Records Act, he was mistaken. Is that 

correct? 

Mr. FERRIERO. All I can say is that if it was created, from what 

I read, it is a record. What I can’t tell is whether it’s a temporary 

record or a permanent record. 

Chairman ISSA. Okay. 

Lastly, this committee has jurisdiction over FOIA. Is it reasonable to destroy, after 6 months, data routinely so that a FOIA request simply goes to data that isn’t there any longer? If you want 

to know what was said or done, if it doesn’t happen to have been 

maintained by choice, it is gone at the end of 6 months at the IRS. 

Mr. FERRIERO. That’s right. 

Chairman ISSA. So FOIA requests essentially to the IRS are pretty useless. And we now know at the FTC, for example, it’s 45 days. 

Is that, in fact, in the best interests of freedom of information, in 

your opinion? 

Mr. FERRIERO. There, again, if it was a permanent record then 

it is not best practice. 

Chairman ISSA. Ms. O’Connor, you declined to come here voluntarily so we subpoenaed you. Clearly, you are not pleased to be 

14 

here, but it is important that you are here. You were at the IRS 

and hired when we began our investigation and requested selected 

documents of Lois Lerner in May of 2013. Is that correct? 

Mr. CONNOLLY. I started on May 30th. 

Chairman ISSA. Okay. So they hired you as soon as we said we 

want a bunch of documents. Correct? 

Ms. O’CONNOR. Mr. Werfel, who was the acting Commissioner. 

Chairman ISSA. Yes or no, please. You are a hostile witness. Yes 

or no, were you hired? 

Ms. O’CONNOR. I am not at all a hostile witness. 

Chairman ISSA. Yes, you are. So you were hired in May. In June, 

when we were not getting delivery, we went and subpoenaed. In 

August, you were at the IRS. Is that correct? 

Ms. O’CONNOR. I was there in August. 

Chairman ISSA. In August of 2013, we requested all Lois Lerner 

emails and not any selection, not any limited group. Are you aware 

of that? 

Ms. O’CONNOR. Yes. 

Chairman ISSA. And what did you do to determine the envelope 

or the window of ‘‘all’’ at that time, in August of 2013? 

Ms. O’CONNOR. So can I explain the process a little bit? I think 

it would help to—— 

Chairman ISSA. My time has technically expired, so I would just 

ask that you be full and complete in—wait a second. Okay. Just 

full and complete in what you did from August until the time you 

left to secure all the documents, please. 

Ms. O’CONNOR. So I think a little background is helpful. When 

I arrived on May 30th, the IRS had a team that was already in 

place collecting materials and beginning to respond to the congressional investigations. I joined, at Mr. Werfel’s request, to be his 

counselor and perform a number of different things, a piece of 

which was helping to respond to the four different congressional 

committees and the IG and others who were seeking materials. 

And so I played a role that was a liaison to him. His direction was 

to be cooperative and try and gather and produce the materials as 

quickly as possible, and also to be a liaison to your staff and the 

staff of the other committees who were interested in figuring out 

how they could get their priorities to them as quickly as they could. 

And by that, what I mean is identifying the employees whose materials they wanted to see first and using search terms in order to 

identify the documents at interest. 

The reason search terms were necessary as opposed to just turning every everything over wholesale, among others, is I know you 

know there is a statute called Internal Revenue Code 6103, which 

is an important—it’s a criminal statute passed by the Congress 

that requires the IRS to protect taxpayer information. And the way 

in which they do that in situations like this is they have to read 

every single document to see if there is taxpayer information in it 

and then redact it if necessary before producing it. 

So a big piece of the effort was to figure out how we could move 

information as quickly to the congressional committees and move 

them what they were looking for. So, in May, what that amounts 

to is when I arrived, Ms. Lerner’s material had already been collected, as had some other employees’ materials. There was more 

15 

collection that went on after that. And the process, as they explained it to me—and I am not a tech expert—but the IRS’ material is protected with careful encryption. And, so, it needs to be 

processed before it can be reviewed. So, they have to load it and 

then flatten it and then decrypt it. And the decryption, I was told, 

creates errors sometimes. Then they have to do it again. And in 

that piece of the process, which is the first piece of the process, 

they would run the terms that the congressional committee staff 

had identified over the material. And then, once that was done and 

the material was viewable, they would move it over into a review 

tool. 

And when I first got there, one of the things that I was doing 

was talking about how in order to move the volume quickly, we 

would need to add people because the IRS had never encountered 

something like this, didn’t have staff in place to do this kind of a 

document review and production. In addition, the technical infrastructure wasn’t really there to support it. So we had a lot of issues 

that we had to deal with in terms of adding servers and adding capacity and having technical experts deal with the systems that it 

would be stable. 

When we got to August, which is I think where your question 

was, you did express an interest in all of the emails. We were, at 

that point, already sort of well into a process that had begun in 

May with Ms. Lerner and other—everybody else’s emails that had 

been loaded at that point had been loaded with all of the terms. 

And so they were being reviewed. And so the staff who were working on this day to day continued to review all of that material. It 

was Mr. Werfel’s intention that as soon as we got all of that done, 

we would circle back and make sure the subpoena was complied 

with. 

And I left in November. We were still in the process of the rolling 

production. It wasn’t finished yet. But it was certainly my understanding, and I believe it to be true—I have no reason to think it’s 

not true—that they intended to continue to produce information. 

But the difference between the selected Lois Lerner information 

and all of Lois Lerner’s information comes from the fact that, initially, the process was organized around material that was—had 

search terms applied to it versus the material at the end. 

I hope that sort of lays that out clearly. 

Chairman ISSA. I just want to summarize and go to the ranking 

member. So, in August of 2013, your testimony is that when receiving a subpoena and explicit instructions that this was our highest 

priority, that we wanted all the emails of the person who took the 

Fifth in front of this committee and who, in fact, was not cooperating, and who indications were was at the center of this targeting 

of conservatives, the decision was made to get to it after you got 

done with all the others. So when you left the agency, they had not 

yet done the extensive search—they had not yet looked for all of 

her emails, and as a result, that’s why we go until April of this 

year before we discover that all her emails were never to be found. 

Ms. O’CONNOR. So, I wasn’t there when the discovery of the lost 

emails occurred, so I can’t really speak to that from my personal 

knowledge. 

16 

Chairman ISSA. That’s why I was saying that on the day you left, 

they had not set out to discover all her emails, but, in fact, had not 

complied with the subpoena in the sense that they had not gathered all of her emails, that they were waiting until they got done 

with all these other things they wanted to do, and then they would 

go look for all of the emails. 

Ms. O’CONNOR. I am sorry, that wasn’t what I meant. 

Chairman ISSA. I would like to know what you meant, because 

obviously, they didn’t know they were missing in the months that 

you were there after a subpoena asked for all of them. And I appreciate that you told us in great detail, and I appreciate that, it helps 

us all understand, you told us in great detail about the process that 

you went through. But of course, the process you went through was 

a process that you determined that you wanted to go through. We 

issued a subpoena. And 6103 redaction doesn’t take the place of 

your gathering all of that. TIGTA was entitled to receive all of her 

emails without redaction and so was Ways and Means, if they 

chose to receive it. 

Ms. O’CONNOR. Right. I believe that they—I understood—it was 

gathered before I got there. But my understanding from the team, 

and I didn’t interact with them directly, but my understanding 

from the team who did gather it was they gathered everything that 

was there. And so in the, you know, process from the point at 

which I got there to the point at which I left, the team, who was 

working very hard on being able to get you materials, was reviewing and processing and redacting as necessary all the material that 

had been loaded and to which the search terms that your staff and 

the staff of the other committees had identified. The process—I 

wasn’t there when the process of going back to look at the ones 

that had originally been loaded but hadn’t hit the search terms 

were reviewed. But when I left, my understanding was that that 

was something that was going to continue because the agency 

seemed fully intending to continue to comply with your subpoena. 

And I have no reason to think that it didn’t. 

Chairman ISSA. Thank you. 

Mr. Cummings. 

Mr. CUMMINGS. Thank you very much. 

Ms. O’Connor, let me ask you this. You were at IRS for about 6 

or 7 months from May to November of last year. Is that right? 

Ms. O’CONNOR. Six months. From May 30 to November 30, sir. 

Mr. CUMMINGS. And you said—I was wondering when you came 

in, what instructions were you given with regard to production of 

documents? In other words, what did Mr. Werfel tell you were his 

priorities and what were you instructed to do? I am just curious. 

Ms. O’CONNOR. His strong imperative was that we gather and 

produce everything that the congressional investigators and the inspector general wanted. And he wanted it to be done as quickly as 

possible. He was interested in being completely transparent. And 

the directives he gave to me, one of my roles was to sort of be his 

liaison to the team that was working full time on the document 

production. And in that capacity, one of the things I tried to do and 

worked on doing was to help them to get stuff out faster, to review 

faster so that more volumes of the material that the committee was 

looking for—and it is four committees, actually, there are four difVerDate Aug 31 2005 15:05 Sep 09, 2014 Jkt 000000 PO 00000 Frm 00020 Fmt 6633 Sfmt 6633 C:\DOCS\89596.TXT APRIL
17 

ferent committees, four different investigations. But he wanted to 

be able to get all of it to the investigation staff and committee 

members, in part because the IRS had been asked by the inspector 

general not to conduct its own investigation, not to interview witnesses. So the investigative activity was happening in the congressional committees and at the IG. And so it was important to get 

them all that material. That’s what he told me to do. And that’s 

what I worked with the team on doing. 

Mr. CUMMINGS. And is that what you tried to do? 

Ms. O’CONNOR. That’s very much what I tried to do. 

Mr. CUMMINGS. And so you left in November. Is that right? 

Ms. O’CONNOR. Yes. 

Mr. CUMMINGS. Of 2013. So you were not there this past February when the IRS first identified potential issues with Lois 

Lerner’s emails. Is that right? 

Ms. O’CONNOR. That’s correct. 

Mr. CUMMINGS. You said something that was very interesting. 

You said, when you got there, Ms. Lerner’s information had already 

been collected. Is that you what you said? 

Ms. O’CONNOR. Yes, that’s correct. 

Mr. CUMMINGS. What does that mean? 

Ms. O’CONNOR. Well, to my understanding—and I didn’t directly 

interface with the staff who did this—but professional long-term 

IRS staff went to Ms. Lerner’s computer, took the hard drive and 

imaged it, took the emails that were on it, made copies of all of 

that. My understanding is that a set of staff—and again, it happened before I got there, so this is my, you know, understanding— 

also went through her office to collect any paper copies that were— 

I think they collected probably everything and then went through 

it to find out what was responsive. 

Mr. CUMMINGS. So they actually went through her office, to your 

knowledge, to try to find paper copies, in addition to everything 

else? 

Ms. O’CONNOR. To my knowledge, yes. Again, I want to clarify 

that I didn’t witness it. I wasn’t there. But that’s what I was told. 

Mr. CUMMINGS. I understand. I see. And so let me ask you, did 

you feel that you were able to carry out the instructions of Mr. 

Werfel? In other words, you said he told you to do things quickly. 

He told you to be transparent. And he told you to—that’s what you 

told us. Did you do that? 

Ms. O’CONNOR. We did our best. I mean, there were hurdles with 

the technology. And we had to add resources. We had to add staff. 

We had to add technological resources. And so I think, you know, 

nobody thought it was as quick as they would have liked. But we 

worked very hard to get the material to the committees as quickly 

as we could. 

Mr. CUMMINGS. Now, you were not there in April when the Commissioner learned that some of Ms. Lerner’s emails might not be 

recoverable. Is that right? 

Ms. O’CONNOR. I was not there in April, no. 

Mr. CUMMINGS. You weren’t even working at the IRS when Mr. 

Koskinen was Commissioner. Is that right? Were you there at any 

time that he was there? 

Ms. O’CONNOR. No, we didn’t overlap. 

18 

Mr. CUMMINGS. So you never worked for him. 

Ms. O’CONNOR. No. 

Mr. CUMMINGS. And how long have you worked at the White 

House? 

Ms. O’CONNOR. About a month. I just got there. 

Mr. CUMMINGS. You just got the job? 

Ms. O’CONNOR. Yes. 

Mr. CUMMINGS. So, Ms. O’Connor, Congress received a letter 

from the White House last week, on June 18th, and it explains how 

the White House found out about Ms. Lerner’s emails. It says, ‘‘In 

April of this year, Treasury’s Office of General Counsel informed 

the White House Counsel’s office that it appeared Ms. Lerner’s custodial email account contained very few emails prior to April 2011 

and that the IRS was investigating the issue and, if necessary, 

would explore alternate means to locate additional emails.’’ So the 

Treasury told the White House in April, which would have been a 

month before you started at the White House. Is that right? 

Ms. O’CONNOR. That’s what that letter says. I wasn’t there, so 

I don’t know. 

Mr. CUMMINGS. Now, Ms. O’Connor, I want to thank you very 

much for being here today. I know this is difficult. But are you a 

lawyer? 

Ms. O’CONNOR. I am. 

Mr. CUMMINGS. Do you know what a hostile witness is? 

Ms. O’CONNOR. I do. 

Mr. CUMMINGS. You do. And the chairman told you that you were 

a hostile witness, and you said you were not. Is that right? 

Ms. O’CONNOR. That’s correct. 

Mr. CUMMINGS. Do you consider yourself a hostile witness? 

Ms. O’CONNOR. I am definitely not hostile. 

Mr. CUMMINGS. So you got a subpoena last night, a unilateral 

subpoena. No committee vote, no debate at all, nothing. And then 

you had to turn around and testify here this morning. 

And so I want to state for the record that we have seen no evidence that Ms. O’Connor did anything inappropriate whatsoever. 

And we want to thank you for your service and for your testimony. 

Mr. Ferriero, let me turn to you. The challenges at IRS are not 

unique. Many Federal agencies have had problems retaining electronic records. I know the President has made some improvement 

with his memorandum in 2011 and that you and the Office of Management and Budget have set target dates for agencies to improve 

their electronic data systems. But we can always do better, can’t 

we? 

Mr. FERRIERO. We sure can. 

Mr. CUMMINGS. As you know, I introduced the Electronic Message Preservation Act a year and a half ago. This bill would amend 

the Federal Records Act to require you to establish minimum 

standards for Federal agencies to manage and preserve email 

records electronically. The bill would complement your efforts to 

get agencies to modernize their recordkeeping systems. This bill 

passed our committee with bipartisan support, I am very pleased 

to say. You have testified several times in support of the legislaVerDate Aug 31 2005 15:05 Sep 09, 2014 Jkt 000000 PO 00000 Frm 00022 Fmt 6633 Sfmt 6633 C:\DOCS\89596.TXT APRIL
19 

tion. Do you think the legislation could help improve the quality of 

the Federal email preservation? 

Mr. FERRIERO. I certainly do. And, in fact, the directive relied 

heavily upon the language of EMPA as we were crafting the directive. 

Mr. CUMMINGS. You know, I sat here last night, I think we were 

here until 10:10, and I listened to, you know, the testimony, and 

this goes to you, Mr. Wester, and I am trying to figure out how do 

we—it seems as if when—it seems like our system at IRS, and 

probably other agencies— is we are so far behind the electronic— 

I mean, the IT modern world. How do we get a hold of that and 

move forward? Because it sounds like that was part of the problem 

here. Mr. Ferriero? 

Mr. FERRIERO. And that’s what we addressed in the directive. I 

agree with you we have a lot of work to do in the Federal Government, working with our CIO partners. 

Mr. CUMMINGS. Is it too big to solve? 

Mr. FERRIERO. No, it’s not. It’s not too big. We have created 

something within the National Archives, this Capstone project, 

which is one solution that takes advantage of existing technologies. 

The biggest problem over time, and this is in the paper environment as well as in the electronic environment, is whenever you 

have a human being in the middle of it making decisions, then you 

have problems. And our focus has been on getting the human being 

out of the process and relying on technology to capture the information that we need to capture. 

Mr. CUMMINGS. My last question. What can we do? You know, 

I can see us sitting here—I probably won’t be here—but in 5 years, 

10 years from now, sitting here going through the same situation. 

What can we do as Members of Congress during our watch to help 

address this issue? I mean, you said people. Well, we got to have 

people. So we can’t let everybody go. So what do we do? 

Mr. FERRIERO. Well, we have the directive, and we are moving 

ahead, so we have the support of the administration for this, and 

we have the EMPA bill. If you could convince your colleagues to get 

the EMPA bill passed and get it through the Senate, that would 

also help us, because that would legislate the change in the Federal 

Records Act that we need. The Federal Records Act today says 

‘‘print and save.’’ This is 2014, and we are printing and saving? 

This is embarrassing. 

Mr. CUMMINGS. Thank you very much. 

Thank you, Mr. Chairman. 

Chairman ISSA. Thank you. I just want to make sure I make the 

record clear on something the ranking member said. 

I checked with Congressman Gowdy, who has a lot more knowledge of law as a prosecutor than I do. And he said the term I 

should have used was noncooperative witness rather than hostile, 

since you and the White House refused to provide your services 

here on an ordinary request, and we had to subpoena unilaterally 

based on the denial that you would appear otherwise. So I want to 

make sure that I don’t use a word that perhaps does make people 

think something that isn’t true. This is simply a witness that refused to cooperate without a subpoena. 

Mr. Mica. 

20 

Mr. MICA. Thank you, Mr. Chairman. 

And just for the record, I heard the ranking member start with 

the comments that we were hauling people up here unnecessarily. 

That was his phrase. 

And I would take great difference with that comment. First of 

all, last night, we brought Mr. Koskinen back, the Commissioner. 

And we brought him back, and I went through his testimony when 

he came to us in March. And he never mentioned any problem with 

the emails back in March, Lois Lerner’s emails. The chairman 

showed everyone on the committee, both sides of the aisle, asking 

for Lois Lerner’s emails. He came and said to us that last week— 

this is his testimony in March—last week, we informed this committee and others that we believe we completed production of all 

of the requests under the inspector general’s report of May 2013. 

And he in fact testified last night in his written testimony that 

he had been aware of technical problems back in February. So I 

think we had every right to call him back. 

The other side, when it intimates that this is some kind of Republican stirring things up, my goodness, last week, the entire 

country and the Congress was stunned to find out that 27 months 

of Lois Lerner’s emails had supposedly been destroyed or her computer crashed. So I think we have every right. 

Mr. Archivist, the law says that—the Federal records law requires that the National Archives be noticed when documents are 

destroyed or lost. Is that the law, sir? 

Mr. FERRIERO. That is the law. 

Mr. MICA. Okay. 

And, Ms. O’Connor, you were brought on board after this report. 

This is not a Republican report. This report was prepared by the 

Treasury Inspector General for Tax Administration to see if groups 

were targeted. And it confirmed that. You are aware of this report, 

Ms. O’Connor? 

Ms. O’CONNOR. I have read the report, yes. 

Mr. MICA. And you were brought on to what, to compile the 

records from and all the information pertaining to what was in that 

report or—— 

Ms. O’CONNOR. I was brought on to give advice to Acting Commissioner Werfel on a number of things. 

Mr. MICA. But we had requested in May certain documents. 

When you came on in early June the IRS sent documentation retention notices to employees who were identified as having documents, including relevant email, potentially relevant information to 

investigators. You were part of that request and notice to employees in early June. You were there in early June? 

Ms. O’CONNOR. I was there in early June, but my understanding 

is that a subset of employees had already—— 

Mr. MICA. Well, this had been sent out, but you’re aware that 

that request had been made to employees to preserve and present 

documents? 

Ms. O’CONNOR. Absolutely it’s important—— 

Mr. MICA. Yes. And that was your job. 

Ms. O’CONNOR. Yes. 

Mr. MICA. So it’s appropriate that you’re both here today. 

When did you first learn that there were emails missing? 

21 

Ms. O’CONNOR. I learned that Ms. Lerner’s emails were missing 

as the result of a computer crash the week before last. 

Mr. MICA. So you were in charge from May until November of 

compiling information from Congress and you never heard before 

that that there was any missing documentation as far emails? 

Ms. O’CONNOR. I didn’t hear that any of Ms. Lerner’s emails 

were missing, no. 

Mr. MICA. Now, when you were compiling this information for 

the four committees of Congress and working with Mr. Werfel, who 

did you report to? 

Ms. O’CONNOR. Mr. Werfel. 

Mr. MICA. Okay. And were you aware that he was reporting your 

activity and what was being found? You were in charge of compiling the information, reporting to Mr. Werfel, right? Did you 

interact at all with anyone at the White House? 

Ms. O’CONNOR. Not when I was there. 

Mr. MICA. Between May and November when you were there, if 

I get your emails, your schedule, like Shulman or the—who is 

the—— 

Ms. O’CONNOR. I cannot recall ever having any conversation 

with—— 

Mr. MICA. Shulman was there before that. He came and testified 

to us that the only time he went to the White House was for egg 

rolling. And then we subpoenaed the White House records, find he 

went there 113 times, or something like that. But you had no contact with the White House during that period? 

Ms. O’CONNOR. Actually you’re jogging my memory, and I actually want to use that as a footnote to just say that I’m doing this 

completely by the fly off my memory because of the subpoena coming last night. 

Mr. MICA. Was there some contact? Because now you—— 

Ms. O’CONNOR. Yes. I’m going to tell you what it is. 

Mr. MICA. Yeah. And now you wind up in the White House. You 

had a subsequent job, I guess helping with the Obamacare situation. 

Ms. O’CONNOR. Could I answer that question? 

Mr. MICA. Yes, go right ahead. 

Ms. O’CONNOR. I feel like it’s something important to finish the 

sentence. Mr. Werfel went to the White House in I think late June 

with Secretary Lew in order to give the President his report, and 

I went into the White House with him. I wasn’t in their meeting. 

Mr. MICA. Was this matter discussed at all? 

Ms. O’CONNOR. I wasn’t in the meeting. I just accompanied—— 

Mr. MICA. You weren’t. 

Ms. O’CONNOR. —him to the building. 

Mr. MICA. Okay. So we would find that record. No other contact 

in the White House during that period? 

Ms. O’CONNOR. No. 

Mr. MICA. But you’re aware—would you be aware that your activities were being reported to Mr. Werfel? And usually they have 

the counsel or someone, it might have been Treasury, reporting to 

the White House as to what was going on, say, with this report. 

You’re not aware of what took place there? 

22 

Ms. O’CONNOR. So in terms of the IG report, I have no idea what, 

if anything, was reported to the White House. The visit that I had 

with Mr. Werfel was to give his 30-day report to the President. 

Mr. MICA. No, but again, your activity was reported to Werfel, 

where you were in the investigation and compiling for Congress, 

you weren’t aware of it being transmitted beyond him? 

Ms. O’CONNOR. No. 

Mr. MICA. Okay. Thank you. 

Chairman ISSA. Thank you. 

We now go to the gentlelady from New York, Mrs. Maloney. 

Mrs. MALONEY. Thank you. I regret I was not able to join you 

last night for the hearing. We had a Financial Services Committee—or rather a bill on the floor that I had been working on 

and we were in debate on the floor. But I just wanted to make a 

brief statement about the hearing that we had last night on the 

overall IRS. And this whole IRS mess seems to flow directly from 

confusion over just how the IRS should enforce a law that was 

passed by this Congress that gives tax-exempt status to not-forprofits, but only if they are essentially politically nonpartisan. And 

what the IRS was looking at is whether these activities of these 

not-for-profits really merited being tax exempt because they’re getting 100 percent deduction and putting a great deal of money into 

political campaigns. 

Now, we don’t have—— 

Chairman ISSA. Would the gentlelady yield? 

Mrs. MALONEY. Okay. 

Chairman ISSA. You probably were not here when this was discussed, but 501(c)(4)s do not get 100 percent deduction. You are not 

tax deductible on your donations of 501(c)(4)s. 

Mrs. MALONEY. At all? 

Chairman ISSA. Not at all, not a penny. 

Mrs. MALONEY. Not a penny. 

Chairman ISSA. They are tax exempt in that the money they receive from taxpayers who have paid their taxes and then give them 

their after-tax income, they don’t count it as profit. They simply 

spend it on their behalf. But they are not tax deductible the way 

a charity is, and it’s a very significant difference. It is one of the 

reasons that they can do up to half of their activities in these. 

These are social welfare groups, not charities. 

Mrs. MALONEY. They are social welfare groups and they don’t get 

a tax deduction? 

Chairman ISSA. When you give to a 501(c)(4), you do so without 

a tax deduction. It is taxable, and then you give your after-tax. It’s 

exactly the same kind of tax deduction you get when you receive 

a political campaign. Your donors pay their taxes and then give you 

after-tax income. It is not a charity. 

Mrs. MALONEY. Not at all? 

Chairman ISSA. Not at all. 

Mrs. MALONEY. Well, I stand corrected. I thought 501(c)(4)s had 

a tax treatment that was favorable to them, and I was saying why 

not just have a rule that no one gets a tax deduction that gets involved in political activities. 

But I think, getting back to the emails, when 22 million emails 

from the Bush White House went missing in 2003 and 2005, which 

23 

was only discovered under the Valerie Plame affair, our colleagues 

across the aisle had a different take on how things should happen. 

And were there any provisions put in place after this loss of emails 

between 2003 and 2005 that made it less likely that emails could 

go missing again? I ask anyone who would like to answer that. 

There was a terrible debacle in 2003 and 2005. What changes 

were put in place to prevent this from happening again? 

Mr. WESTER. So I would suggest that that’s an example of some 

of the challenges that all Federal agencies across the government 

have as it relates to managing email. And the instance that we’re 

talking about today with the IRS is also another where agencies 

need to be able to understand how their email systems work, how 

their email systems work in connection with the Federal Records 

Act, and how they’re ensuring that preservation is occurring according to disposition schedules. So that’s been a wakeup call for 

the entire Federal Government. 

Mrs. MALONEY. Well, I would also say that a wakeup call is that 

you need your infrastructure to be high tech and in place. 

And, Mr. Ferriero, as you may be aware, the IRS has a 1 billion 

IT infrastructure, but the Federal Times recently reported that sequestration and other cuts have imposed terrible restrictions on the 

IRS, including a reduction in the agency’s supplies and materials 

and budgets. And so you basically have an antiquated IT system, 

in addition to not putting reforms in place, so can you discuss how 

maintaining an antiquated IT system might impact an agency’s 

record-retention capability? What does this mean, these budget 

cuts and not having an updated IT system? 

Mr. FERRIERO. It certainly plays a role in this particular case in 

terms of the capacity of their hard drives to retain information, the 

number of emails that they’re actually able to capture at one time. 

The upside of the directive that we’re in the process of implementing is that it gives us the authority to work with the industry, 

the electronic mail industry, the high-tech industry to create solutions that will work for the Federal Government, efficient, effective, 

and cost-benefit solutions to this problem. So I’m optimistic about 

the future. 

Mrs. MALONEY. Well, has funding been a significant challenge to 

some of these agencies in modernizing their IT records and retention infrastructure? 

Mr. FERRIERO. It certainly has. 

Mrs. MALONEY. The Commissioner testified, and I read his testimony, he has proposed $400 million to $500 million of modernization and improvement activities, but this has not become a reality 

in the budget. Others have complained that the department still 

has not completed the switch from Microsoft Windows XP to Windows 7. What kind of problem is that? Can you elaborate a little 

further? 

Mr. FERRIERO. This is a problem across the government in terms 

of the investment in technology. 

Mr. CONNOLLY. Would my colleague yield? 

Mrs. MALONEY. Absolutely. 

Mr. CONNOLLY. At last night’s hearing, it was established that the IRS has had over $800 million worth of cuts in its budget in 

the last 4 years, and it’s slated for an additional $350 million this 

24 

year. You can’t have it both ways. You can’t be cutting the IRS that 

kind of amount and then decry the fact that they’ve got antiquated 

IT systems. 

I thank my colleague for yielding. 

Mrs. MALONEY. My time has expired. Thank you. 

Chairman ISSA. I thank the gentlelady. And I thank the gentleman for pointing out the 10,000 less workers, but not in fact a 

smaller IT budget. 

Mr. CONNOLLY. But I know the chairman shares my concern 

about the IT investment. 

Chairman ISSA. You know what, I really do, and I wish you had 

stayed longer last night to hear the accolades from both sides of the 

dais for the IG and his independence, his nonpartisan, the TIGTA’s 

efforts, and how much he’s relied on as a nonpartisan. I think it 

would have been very, very insightful. 

Mr. CONNOLLY. You know, Mr. Chairman, I appreciate that. My 

wife is ill, and I have had to go home at night to—— 

Chairman ISSA. Well, you certainly have our sympathies. 

Mr. CONNOLLY. I know that he would appreciate that. 

Chairman ISSA. Thank you. 

The gentleman from Ohio, Mr. Jordan, is recognized. 

Mr. JORDAN. I thank the chairman. 

Ms. O’Connor, in the 6 months you were at the Internal Revenue 

Service who was the person in charge of getting the documents 

that Congress wanted to—this committee and to the Ways and 

Means Committee? 

Ms. O’CONNOR. I guess I would say that that’s Mr. Werfel, because he directed the agency at the time and told us what his directives were to—— 

Mr. JORDAN. But in the people who were working on document 

production, who was in charge? 

Ms. O’CONNOR. So I served, as I think I was describing, as sort 

of the liaison between him and the team, the big team of people—— 

Mr. JORDAN. So it was you? Was it you? Were you the person in 

charge? 

Ms. O’CONNOR. I wasn’t working on it full-time because I had a 

number of other responsibilities. 

Mr. JORDAN. Well, when we interviewed Mr. Wilkins, who is the 

Chief Counsel at the IRS, he said it was you. He said employees 

who have been responsible for collecting and producing documents, 

we asked him who was responsible for that process, and he said it 

is Tom Kane and Jennifer, are the two I identify as the key supervisors. And then he said, Ms. O’Connor? And he said yes. So he 

identified you as the chief person. 

So in the 6 months you were there, this is a huge story, you got 

the key player in this who took the Fifth, it’s in the news every 

day, and in that time, you’re telling us, you did not have any inclination that a bunch of Lois Lerner’s emails were lost. 

Ms. O’CONNOR. I did not know that her emails were missing and 

unrecoverable and that there had been a laptop crash that had 

caused that. 

Mr. JORDAN. Okay. So when you did learn, what was the date 

that the White House Counsel’s office learned—Mr. Koskinen told 

25 

us last night he thought he had no duty to disclose, that he knew 

in February that there was a problem, he knew in March that 

there were lost emails, he didn’t tell us at the end of March, but 

he did—well, someone at the White House learned in April. We 

didn’t learn until June when they sent us a letter just a week and 

a half ago. So when did the White House Counsel’s office learn that 

there were lost emails? 

Ms. O’CONNOR. So I just got there. 

Mr. JORDAN. I understand, but I’m asking when the Counsel. 

How big—there’s only, like, 25 lawyers in the whole—— 

Ms. O’CONNOR. I wasn’t there in April. I have seen the same letter that you’ve seen, and it, you know, describes there—— 

Mr. JORDAN. But Do you know the date? 

Ms. O’CONNOR. I don’t. 

Mr. JORDAN. Is it fair to say April? I mean, that’s what your boss 

Mr. Eggleston said, he said it was in sometime in April when they 

learned from the Treasury. Is that accurate? 

Ms. O’CONNOR. I have no reason to doubt that it’s true. I just 

wasn’t there. 

Mr. JORDAN. Okay. And then do you know who from Treasury 

told the White House Counsel’s office that emails were lost, do you 

know who that person was? 

Ms. O’CONNOR. I don’t know. 

Mr. JORDAN. You don’t know who was in that meeting or if it 

was a meeting or if it was a phone call, how it was communicated? 

Ms. O’CONNOR. I’d love to be helpful. I just started, so I’m unable 

to answer your question. I just wasn’t there yet. 

Mr. JORDAN. And do you know if anyone in the White House 

Counsel, once they got that information, did they tell anybody else? 

Did your boss, did the White House Counsel’s office, did they tell 

the Chief of Staff at the White House, did they tell the President? 

Who was that communicated to? 

Ms. O’CONNOR. Again, I’m sorry, I don’t mean to be a broken 

record, but I wasn’t there. 

Mr. JORDAN. You didn’t talk? I mean, we asked you to come to 

this hearing a week ago, so in the week you didn’t ask, like, what 

happened here? We learned in April, the Congress didn’t learn 

until June, you didn’t ask any of your colleagues in that. How 

many lawyers are in the White House Counsel’s office? Approximately 25? 

Ms. O’CONNOR. I’m sufficiently new that I have not done a head 

count. I honestly don’t know. 

Mr. JORDAN. Well, our understanding it’s around 25 lawyers. 

You’d think maybe you would talk to those folks and get the details 

about what you’re going to come to this committee and have to answer questions about. You didn’t do that? 

Ms. O’CONNOR. So, the letter that I received from Chairman Issa 

said that the reason that you wanted to talk to me was to understand what I learned at my time at the IRS. I obviously did not 

have much time to prepare, but I prepared to come and tell you 

about that. 

Mr. JORDAN. But you didn’t even think to ask about the fact that 

the White House knew in April and the people’s house doesn’t 

know until June, you didn’t think there was a duty to figure out, 

26 

you know, who gave you the information, who you may have 

shared that information with? I mean, it seems like everyone 

knows this stuff except the Congress, and we don’t get it for 

months later. 

Ms. O’CONNOR. So again, what I’d like to be able to do is be as 

helpful as I can with what I knew when I was at the IRS. 

Mr. JORDAN. Well, it would have been helpful if you’d have had 

those answers to those questions. Do you know if the White House 

Counsel’s office, once they got this information that, in fact, Lois 

Lerner’s emails in a critical 2-year timeframe were lost, do you 

know if the White House Counsel’s office told the FBI and told the 

Justice Department? 

Ms. O’CONNOR. So, what I can tell you is what I knew when I 

was at the IRS. 

Mr. JORDAN. No, no, I’m talking about now. You work at the 

White House Counsel’s office. They knew this information in April. 

We didn’t know it till June. There’s a 2-month time difference 

there. In that time, did the White House Counsel’s office tell the 

FBI? Remember what the President said. He said he’s angry about 

this, people have to pay, this is outrageous, there’s no place. This 

is all the things he said when this scandal broke. So I’m wondering, if you get important information like Lois Lerner’s emails 

are lost, did you share that with the agency doing the criminal investigation? Did you say, hey, this is serious, we better get this information to the FBI and to the Justice Department? Did you guys 

do that? 

Ms. O’CONNOR. I’m happy to answer questions about my time at 

the IRS. I was there for 6 months. 

Mr. JORDAN. I’m asking did your boss, did the folks you work for 

at the White House Counsel’s office when they got this critical information, did they share it with the Justice Department? 

Ms. O’CONNOR. Mr. Eggleston actually started the same day that 

I did. So our tenures are the same. 

Mr. JORDAN. He’s the one who wrote the letter to Dave Camp 

saying they learned of it in April from the Treasury’s Chief Counsel. When he got that important information, did he get it to the 

folks who were running the criminal investigation? That’s important. Or do you think there’s no duty for the White House when 

they got critical information, there’s no duty, no obligation to share 

that with the Justice Department who’s running a criminal investigation? You don’t think they have to do that? They can just sit 

on the information? 

Ms. O’CONNOR. So can I answer the question? 

Chairman ISSA. The gentleman’s time has expired. You may answer. 

Ms. O’CONNOR. Can I answer the question? I’m happy to work 

with you and with your staff to try to get you information as we 

can to answer your questions about my time at the White House. 

Mr. JORDAN. Mr. Chairman, if I could, that wasn’t the question. 

The question was, do you think the White House Counsel’s office 

has a duty to share critical information about lost emails with the 

Justice Department when you knew that 2 months ago? 

Chairman ISSA. Okay. I think the question is now understood. 

Can you answer that question, please? 

27 

Ms. O’CONNOR. And my answer would be—— 

Ms. SPEIER. And can she not be interrupted? 

Ms. O’CONNOR. My answer would be that I am here as a witness 

about the facts that I learned at the IRS. To the extent you have 

questions about activity at the White House, I’m happy to work 

with you and see what we can do to get you answers. That’s not 

what I’m prepared to talk about today. 

Chairman ISSA. Actually, from the chair, I need to advise, when 

a question is asked and you’re an attorney and he’s asking if you 

have an opinion as to whether or not knowledge of a crime should 

be referred or the knowledge of something you think is a crime 

should be referred, it really is a yes or no or I do not feel—— 

Ms. O’CONNOR. I’m happy to answer that. 

Chairman ISSA. Please. 

Ms. O’CONNOR. I think knowledge of a crime should be referred 

to the FBI, yes. 

Chairman ISSA. Thank you very much. And I thank you. 

The next is the patient gentlelady from Illinois, Ms. Duckworth. 

Ms. DUCKWORTH. Thank you, Mr. Chairman. 

Ms. O’Connor, has it been determined that the crashed hard 

drive was a crime? 

Ms. O’CONNOR. Not as far as I know. 

Ms. DUCKWORTH. Thank you. So when the White House—well, 

let’s go back. Last night Commissioner Koskinen testified that he 

found out about the crashed hard drive in April of this year. Were 

you working at the White House at that time? 

Ms. O’CONNOR. I was not. 

Ms. DUCKWORTH. When did you start at the White House? 

Ms. O’CONNOR. Just about a month ago. 

Ms. DUCKWORTH. About a month ago, so middle of May? 

Ms. O’CONNOR. Yes. 

Ms. DUCKWORTH. Middle of May. Okay. So would you have any 

information prior to the middle of May or in April, would the White 

House have called you and told you that they received information 

or did not receive information from the IRS before you started 

working there? 

Ms. O’CONNOR. Nobody called me from the White House to tell 

me they received information from the IRS. 

Ms. DUCKWORTH. Okay. So you would not have known? 

Ms. O’CONNOR. No. 

Ms. DUCKWORTH. The current Commissioner testified that he 

only learned in April that the crash had happened and that in that 

process they were still trying to recover some of the lost emails, 

and in fact, they had managed to recover some of the emails that 

were lost because, even though they were crashed and lost from the 

‘‘from’’ account, Ms. Lerner’s account, they were actually found in 

the 2 accounts of the 82 custodial accounts, the people that received the emails, and they were sort of going through that process. 

It’s by no means complete, but they were going through the process. Again, this happened in April. Would you have had any knowledge of that? 

Ms. O’CONNOR. I didn’t have any knowledge of that in April. I 

do think that the measures that they described that they went 

through sounds exhaustive and appropriate. 

28 

Ms. DUCKWORTH. But let’s go back to the 5–1/2—5 months you 

worked at the IRS. My colleague indicated that there had been previous testimony you were identified as the person in charge of employees whose job it was to produce the documents that had been 

requested by the various committees. Did you write the evaluations 

for all of those employees? 

Ms. O’CONNOR. None of them directly reported to me. My role 

was as an advisor, and I did my best to help them and advise them 

and work with them and work with the committees and essentially 

make sure that the team that was working day to day, all day long, 

you know, to do this, and all night long, I mean, they worked very, 

very long hours, knew what the priorities were for which employee’s material was going to be produced, what the search terms were 

supposed to be. 

Many of the investigating committees, including this one, had, 

you know, specific requests, please get me the BOLO spreadsheets 

or please get me the training materials or whatnot, and I tried to 

facilitate that and help the team figure out how to prioritize what 

reviewers were looking at what materials that they could move 

quickly, those kinds of things. So I played a role, but I didn’t write 

any performance evaluations because none of them directly reported to me. 

Ms. DUCKWORTH. Okay. So you played an advisory role, but you 

had no direct responsibilities in terms of evaluation them, direct 

them exactly how they should go about doing the data gathering, 

you simply advised them as they were going through the process, 

and then your job was to report back to Mr. Werfel on the progress 

of the effort. Is that correct? 

Ms. O’CONNOR. I don’t want to leave the impression I didn’t work 

closely with them. I did. 

Ms. DUCKWORTH. Okay. 

Ms. O’CONNOR. It’s just that I was not their direct supervisor. 

Ms. DUCKWORTH. Okay. Thank you. 

Mr. Ferriero, I’m really interested in the Capstone process, and 

I want to make sure we give that enough of attention. One of the 

things that really astounded me last night was when I learned that 

only records that IRS employees determine relevant would be 

printed out and then those would be archived, but it was up to the 

individual employees to decide what would be and what would not 

be. I’m looking at the National Archives and Record Administration 

Bulletin 2013–02 titled, ‘‘Guidance on a New Approach to Managing Email Records,’’ which talks about Capstone. 

And, Mr. Chairman, I would like to have this entered into the 

record also. 

Chairman ISSA. Without objection, so ordered. 

Ms. DUCKWORTH. Thank you. 

And in point 8, it actually talks about pre-accessioning policy, 

that talks about how pre-accessioning, if that were to be conducted, 

would mean that you would actually assume physical custody of 

copy of all the records usually well before this time to assume legal 

custody. Can you sort of describe that process and then how that 

would interact with the individual employees, whether that takes 

them out of the picture? 

Mr. WESTER. I will take that. 

29 

Ms. DUCKWORTH. Oh, okay, I’m sorry. Thank you, Mr. Wester. 

Mr. WESTER. So with the pre-accessioning policy, what we want 

do is offer agencies the opportunity to transfer physical custody of 

email records to us so that we can ensure their preservation at the 

National Archives so that they are not in any kind of danger or 

anything in an agency. So this is a way to ensure adequate preservation of archival records, those 2 to 3 percent of records that agencies create that have permanent value that would come into the 

National Archives. We’d bring them in through that preaccessioning policy and maintain them physically, and then at the 

time of transfer, which may be in 15 or 20 or 30 years after that 

date of their creation, then make available through the National 

Archives access programs. 

Ms. DUCKWORTH. So once you have it, then those IRS employees, 

for example, whatever agency it is, couldn’t actually go and delete 

the copy that you have, correct? 

Mr. WESTER. No, they would be entrusted to the National Archives itself. They would be in our physical custody, even though 

they would still be in the legal custody of the IRS. 

Ms. DUCKWORTH. But that would be useful. 

My time is up, Mr. Chairman. I yield back. 

Chairman ISSA. Thank you. 

I’d ask unanimous consent that the press release from the Treasury Inspector General For Tax Administration, TIGTA, dated November 21st, 2013, be placed in the record. Without objection, so 

ordered. 

Chairman ISSA. It’s entitled, ‘‘Increased Oversight is Needed of 

the Internal Revenue Service’s Information Technology Hardware 

Maintenance Contract,’’ and it goes into the tens of millions of dollars that were spent in 2012 fiscal year on maintenance that was 

neither needed nor was it performed. 

We now go to the gentleman from Michigan, Mr. Walberg. 

Mr. WALBERG. Thank you, Mr. Chairman. 

Mr. Ferriero, just to review a bit, in your testimony you state 

that when agencies become aware of unauthorized destruction of 

Federal records, that they’re required to report the incidents to the 

Archives. At any time in 2011, through last Monday, did the IRS 

report any loss of records related to Lois Lerner? 

Mr. FERRIERO. No. 

Mr. WALBERG. Is it fair to say that the IRS broke the Federal 

Records Act? 

Mr. FERRIERO. They’re required—any agency is required to notify 

us when they realize they have a problem that could be destruction 

or disposal—unauthorized disposal. 

Mr. WALBERG. But they didn’t do that. 

Mr. FERRIERO. That’s right. 

Mr. WALBERG. Did they break the law? 

Mr. FERRIERO. I’m not a lawyer. 

Mr. WALBERG. But you administer the Federal Records Act. 

Mr. FERRIERO. I do. 

Mr. WALBERG. If they didn’t follow it, can we safely assume they 

broke the law? 

Mr. FERRIERO. They did not follow the law. 

30 

Chairman ISSA. Mr. Walberg, I think you’ve got a witness who’s 

smart enough to know that he knows he would have liked those 

records, he’d like to have gotten those records, he was entitled to 

those records, but he’ll let the lawyers argue out the law. 

Mr. WALBERG. Let the lawyers argue out. The general American 

public who wouldn’t get away with that if they were before the IRS 

themselves and said that they didn’t report a specific page or a specific document, I mean, that’s the frustration. I hope those that are 

watching understand we’re dealing with a law here that was broken, that was broken by an agency that has the power to tax, 

which is also the power to destroy. 

Mr. Ferriero, in general, I guess could you briefly describe for us 

the print and file recordkeeping process and how it works? 

Mr. WESTER. I would like to take that question for you. First of 

all, I need to apologize about intimating that the Federal Records 

Act itself says print and file. So, the Federal Records Act, as the 

Archivist has said, does not stipulate that you have to print and 

file, but it is a practical activity that most agencies have adopted 

as part of their policy so as to ensure that Federal records, as defined in the Federal Records Act, are identified and put into official 

recordkeeping systems within agencies. 

The connection to the Federal Records Act is that it is based on 

an analog and paper model for managing records, and as a practical matter, most agencies, if not all agencies across the government have had print and file policies where individual employees 

are required to identify what the Federal records are and put them 

into the recordkeeping copy within their agency for retention according to records control schedules that the Archivist of the 

United States approves. 

What we’re trying to do with the Capstone policy and the activities with the directive on managing government records is to automate this process so that we can eliminate the human intervention 

and the likelihood or the possibility of humans making errors and 

us—and agencies losing control of records. So print and file has a 

long history of human intervention, whether it’s printing it on 

paper and putting it into a file folder or clicking and dragging an 

electronic file into an electronic file folder. 

Mr. WALBERG. But the IRS has—they have that policy? 

Mr. WESTER. Their official policy, as we understand it, is the 

print and file. 

Mr. WALBERG. In general, do you think it would be sufficient for 

the Federal Records Act for an employee to save emails that are 

Federal records to a local folder on their computer’s hard drive instead of printing those emails out? 

Mr. WESTER. It’s inconsistent with the guidance that the IRS has 

given to their employees, and their official guidance is to print and 

file email records in this case to paper and put them in the official 

recordkeeping system. 

Mr. WALBERG. If an employee were to deliberately not comply 

with the FRA by not printing out their emails, would they be subject to any sanctions under the FRA? If so, what sanctions? 

Mr. WESTER. I am also not a lawyer, but it’s not an enforcement 

statute. What we do with agencies when these sorts of issues arise 

is have them report to us what has occurred in the instance where 

31 

emails or other kinds of records have been alienated or destroyed 

and then what are their plans for reconstructing those records or 

putting things in place to make sure that this sort of activity does 

not happen again in the future. 

Mr. WALBERG. Let me just complete the questioning here. If a 

Federal employee’s hard drive crashes with no warning and no 

backup of the email exists, do you believe it’s proper for an agency 

to assume that no records were lost? 

Mr. WESTER. No. 

Mr. WALBERG. That’s the question, the $100 million question 

that, Mr. Chairman, we hope we ultimately can get an answer to. 

I yield back. 

Mr. GOWDY. [Presiding] I thank the gentleman. 

The chair would now recognize the gentleman from Nevada, Mr. 

Horsford. 

Mr. HORSFORD. Thank you, Mr. Chairman. 

Last night the actual chairman, Chairman Issa, took an extreme 

action by issuing a unilateral subpoena to the White House. He demanded that Ms. O’Connor show up here today within 24 hours 

and under threat of contempt. There was no vote on this subpoena. 

The committee did not debate it. Members did not have the opportunity to weigh the gravity of what the chairman did in the committee’s name. Now we find out how misguided that subpoena really was. 

Ms. O’Connor, let me just confirm what we’ve heard here this 

morning. You were not at the IRS when employees were using inappropriate search terms. Is that correct? 

Ms. O’CONNOR. I was not at the IRS during the period covered 

by the Inspector General’s report. 

Mr. HORSFORD. You joined the IRS after the Inspector General 

issued his report. Is that correct? 

Ms. O’CONNOR. Yes, I joined on May 30, 2013. 

Mr. HORSFORD. And you left the IRS in 2013, which was long before the IRS made these recent discoveries this spring about Ms. 

Lerner’s email. Is that correct? 

Ms. O’CONNOR. That’s correct, yes. 

Mr. HORSFORD. And you joined the White House less than a 

month ago. 

Ms. O’CONNOR. About a month ago. 

Mr. HORSFORD. And according to a letter we received from the 

White House, that was after the Treasury Department informed 

the White House in April about potential problems with Ms. 

Lerner’s email. Is that right? 

Ms. O’CONNOR. Right. I’ve seen that letter, and it refers to an 

April referral or informing in April, yes. 

Mr. HORSFORD. Thank you. I quite honestly do not understand 

how Chairman Issa was able to rush to issue this subpoena, to 

force you, Ms. O’Connor, to be here today within 24-hour notice. 

Your connection to this topic of today’s hearing is at best a stretch, 

and all of these questions could have been answered by simply 

picking up the telephone and asking. It’s just a continuation of the 

same charade that unfortunately this chairman continues to use 

this committee to perpetuate. And what’s further insulting about 

32 

this is that the chairman promised to use the authority of this committee responsibly. 

Let me read what the chairman said back in 2011, ‘‘I’m going to 

take the thoughts on why you object seriously. To be honest, I will 

ask other members of my committee, am I doing the right thing? 

I will also undoubtedly talk to other Members on your side and 

say, am I nuts, am I wrong, is this somehow a subpoena that is 

outside the mainstream? So, I don’t intend on simply writing subpoenas endlessly.’’ But that’s exactly what Chairman Issa has done. 

Since he became chairman 4 years ago he has issued more than 

50 unilateral subpoenas. He has never once allowed a debate, and 

he has never allowed a vote. Not only do these actions contradict 

the promises that he made 4 years ago as the chairman, but they 

result in unwarranted and abusive subpoenas like the one he 

issued last night. 

Now, many constituents do care about the issue of the wrongdoing that occurred at the IRS, and there are Members on the 

other side of the aisle who I have listened to, to try to understand 

the concerns about the lack of accountability of those individuals 

who should be held responsible. But unfortunately that is not what 

the chairman has allowed us to focus on in any of the hearings that 

we’ve had dealing with this matter. In fact, he’s used this process 

to politicize the process and to not focus on the proper oversight or 

government reform function of the committee. 

But perhaps this should not be a surprise, because during an 

interview on August 19, 2010, before Chairman Issa became committee, he was asked what he planned to do with the ability to 

issue subpoenas, and his response was, ‘‘Cabinet officers, assistant 

secretaries, directors, I will be able to take on everybody that the 

President hires and relies upon.’’ Well, he has certainly made good 

on that promise. 

I yield back my time. 

Mr. GOWDY. I thank the gentleman from Nevada. 

The chair would now recognize the gentleman from Arizona, Dr. 

Gosar. 

Mr. GOSAR. Thank you, Mr. Chairman. 

You know, the ranking member brings up new legislation about 

electronic preservation. Mr. Ferriero, that’s pretty much immaterial if you don’t uphold the rule of law, right. 

Mr. FERRIERO. Well, the hope is that you—— 

Mr. GOSAR. Well, the hope is, but I mean, if you don’t uphold the 

rule of law, you can pass all the legislation you want to, it doesn’t 

make a hill of beans about it, right? 

Mr. FERRIERO. That’s true. 

Mr. GOSAR. How about you, Ms. O’Connor, would you agree with 

that statement? 

Ms. O’CONNOR. The importance of upholding the rule of law? 

Mr. GOSAR. Yeah. 

Ms. O’CONNOR. It’s very important. 

Mr. GOSAR. I want to read, former Supreme Court Justice Brandeis made a comment. ‘‘In a government of laws, the existence of 

the government will be imperiled if it fails to observe the law scrupulously. If government becomes a lawbreaker, it breeds contempt 

for the law; it invites every man to become a law unto himself; it 

33 

invites anarchy.’’ So if civil society is important, following the rule 

of law is very important. Would you agree, Ms. O’Connor? 

Ms. O’CONNOR. Absolutely. 

Mr. GOSAR. Yeah. 

Mr. Ferriero, you found out about the potential loss of documentation by the IRS or through a letter to Senators Wyden and 

Hatch. 

Mr. FERRIERO. Through that letter in June. 

Mr. GOSAR. You are aware that Federal Regulation 36 CFR Part 

1230.14 states that agencies must report promptly any unlawful or 

accidental removal, defacing, alteration, or destruction of records in 

the custody of that agency to the National Archives and Records 

Administration, Modern Records Programs, true? 

Mr. FERRIERO. True. 

Mr. GOSAR. Yeah. That’s what I thought. So once again we’ve got 

a problem. Last night I cited the articles of impeachment for President Richard Nixon, actually cited the inference about the IRS. 

People are scared of the IRS because the power to tax is the power 

to destroy. Wouldn’t you agree, Mr. Ferriero? 

Mr. FERRIERO. I know that people are afraid of the IRS, yes. 

Mr. GOSAR. Yeah. Missing documents, kind of similar to missing 

tape minutes. Wouldn’t you agree, Mr. Ferriero? 

Mr. FERRIERO. I’m not sure they equate. 

Mr. GOSAR. Whoa, whoa, whoa, whoa, whoa, missing material, 

missing material, missing records, missing records, the same. 

Agreed? 

Mr. FERRIERO. Missing material. 

Mr. GOSAR. Yeah. And then we haven’t followed the rule of law. 

So everybody is scared to death that there’s one application to bureaucrats and there’s another application to the regular lay people 

on the street, you know. It defies me. 

Ms. O’Connor, I mean, you’ve been in the Clinton White House, 

you used to help with the Clinton administration with the Teamster Union strike. In fact, you’ve been quoted as being a veteran 

of Washington battles. Would you agree with that? 

Ms. O’CONNOR. I’ve been here a long time. 

Mr. GOSAR. So you know the process, right? 

Ms. O’CONNOR. I’m not sure which process you’re referring to. 

Mr. GOSAR. The bureaucratic inside-the-Beltway politics process. 

You know about these recordkeeping and aspects of that as well. 

Ms. O’CONNOR. I’m not a recordkeeping expert. Certainly I 

have—— 

Mr. GOSAR. But you have to—you’re an attorney. You have to 

know that when there’s a problem and you don’t have records, 

where there’s a problem with records, you know to report it, right? 

Ms. O’CONNOR. I know that if you discover that records have 

been lost and they’re not recoverable, it needs to be reported, yes. 

Mr. GOSAR. Let’s go back through this again. The accidental removal, defacing, alteration, or destruction of records in the custody. 

So it’s not just loss, it’s potential problems with it. So in your tenure over at the IRS, there was no inferences, Ms. O’Connor, that 

there was some sequencing problems or some problems with the 

emails out of Ms. Lerner’s office, none? 

34 

Ms. O’CONNOR. Nobody raised to me what I understand to be the 

issue that arose here, which is an identification that some of the 

emails were—— 

Mr. GOSAR. I didn’t ask about missing. That there were some 

problems with her email. Because even the Commissioner said that 

it was known that there was problems with that—with her records. 

Ms. O’CONNOR. I don’t recall knowing that there were problems 

with the records. 

Mr. GOSAR. No one reported to you that there was any problems? 

Ms. O’CONNOR. I don’t recall anybody telling me that there were 

problems with the records. 

Mr. GOSAR. Would you consider the conduct of Ms. Learner normal? 

Ms. O’CONNOR. Which conduct? 

Mr. GOSAR. The conduct in front of this committee and her conduct in front of, you know, supplying a question to the audience, 

seeding a question to the audience? I mean, as an employee and 

somebody supervising records and looking at it, would you say the 

conduct of Ms. Learner as being normal? 

Ms. O’CONNOR. Well, just to break it out, the question at the conference, it wouldn’t be something I would advise. In terms of the 

laptop situation, my understanding from the material that’s become public in the last week or so is that she took quite a number 

of efforts to have the laptop reconstructed, and that seems to be appropriate. 

Mr. GOSAR. You could also look at it from the standpoint of 

America looking at it is covering up her crime, too. 

Ms. O’CONNOR. I have no evidence that that’s what’s happening. 

Mr. GOSAR. Well, if you’re from the inside out, I mean, it’s pretty 

interesting that you could actually try to cover that up in regards 

to the way that you look like you’re coming off on disclosure. 

Let me ask one last question. So the way she took the Fifth, is 

that normal, Ms. O’Connor? 

Ms. O’CONNOR. I don’t have any point of reference for that. 

Mr. GOSAR. You’ve seen plenty of taking the Fifth, have you not? 

Ms. O’CONNOR. I have not. 

Mr. GOSAR. You have not? Okay. 

I yield back. 

Mr. GOWDY. I thank the gentleman from Arizona. 

The chair will now recognize the gentlelady from Illinois, Ms. 

Kelly. 

Ms. KELLY. Thank you, Mr. Chair. 

Mr. Ferriero, the National Archives and Records Administration 

is required by law to ensure the investigation of all allegations of 

unauthorized disposal of Federal records. Is that correct? 

Mr. FERRIERO. We don’t actually do investigations, but we are 

charged with ensuring that we follow up on any reports that we 

have and urge the agencies to conduct such an investigation, yes. 

Ms. KELLY. So you just said you don’t investigate the allegation 

yourself, but you do instruct the entity to conduct on their own and 

report back. 

Mr. FERRIERO. Right. 

Ms. KELLY. Okay. During the Bush administration from 2001 to 

2008, the National Archives reported that they opened 92 cases 

35 

into whether agencies improperly disposed Federal records. Does 

that sound correct? 

Mr. FERRIERO. I believe so. 

Mr. WESTER. It does 

Ms. KELLY. Okay. If you do the math, that was a little more than 

11 years ago, or almost 1 per month. Is it fair to say that such allegations are relatively common? 

Mr. FERRIERO. You have the data. 

Mr. WESTER. The allegations are common. I would suggest that 

it’s not unique to administrations, but it’s reflective of the challenges that all Federal agencies have with this issue. 

Ms. KELLY. Okay. On June 17 the National Archives and Records 

Administration sent a letter to the IRS chief in the Office of 

Records and Information Management indicating that the loss of 

some of Ms. Lerner’s emails may constitute an unauthorized disposal of Federal records. Is that correct? 

Mr. WESTER. That is correct. 

Ms. KELLY. Do you think that records retention is a problem exclusive to the IRS? 

Mr. WESTER. No 

Ms. KELLY. A 2008 Government Accountability Office investigation found evidence that several Federal agencies, including the 

Department of Homeland Security and the Department of Housing 

and Urban Development, admitted at least one requirement of National Archives regulations related to proper management of electronic records. It certainly appears that Federal agencies across administrations have struggled with records retention. 

What is the NARA’s role in developing a long-term solution to 

this problem that will endure even after this administration is 

over? 

Mr. FERRIERO. Let me start with just describing the state has 

been self-identified. Over the past 5 years, 4 years, we having 

working with each of the agencies to develop a self-assessment of 

where they stand in terms of their control over especially the electronic records, and the data shows that a high percentage of the 

agencies self-report that they are at high risk. So that’s why we 

have created the directive and are moving ahead to create the solutions to those problems. 

Ms. KELLY. And what can agencies do to mitigate this longstanding problem? What ideas? 

Mr. WESTER. There are a number of ideas, most of which are captured within the managing government records directive. As we’ve 

talked about earlier, agencies need to identify ways to automate 

these processes, to take the human intervention out of the activity, 

because that is where the highest risk for error to occur or other 

things to occur that do not ensure good recordkeeping. So to the extent that we’re able to have industry days and identify private sector vendors and get their ideas about how this auto-categorization 

and automation can take place with email and other electronic 

records and then identify what the minimum electronic records 

management requirements are that the National Archives needs to 

promulgate to the vendor community and also to Federal agencies 

so that they can better manage on this electronic content. Those 

36 

are some of the things that we’re working on so that we’re able to 

meet those deadlines within the directive. 

Ms. KELLY. Because it would seem as though as our technologies 

continue to improve, the amount of information that agencies 

mustmanage and appropriately store increases. So how important 

is it for agencies to make improvements to information systems to 

ensure full compatibility with new technologies? 

Mr. WESTER. It’s very important. They need to think about this 

in several kind of sectors. One is the policy piece, which the National Archives is most responsible for in getting that piece organized so that they are thinking more creatively and differently 

about how to manage records in automated sorts of ways with our 

support. 

Also thinking about the technology issues, working with the vendor community in the private sector to understand how automation 

can be added in cost-effective ways to make this happen. Then 

identify ways that agencies can, in a fiscally responsible kind of 

way, add this technology and implement these policy changes so 

that agencies are managing their records to meet their business 

needs, protect the rights and interests of the government, and then 

from the National Archives’ perspective, make sure that we’re able 

to get the currently valuable records into the National Archives so 

we can make them available to future generations. 

Mr. FERRIERO. And there are a couple of other aspects of this directive that we haven’t touched on that are very important. The directive calls for the appointment of—identification of a senior agency official, not the records manager, but senior agency official who 

takes responsibility for records management within that agency, 

raises the profile of records management in the agency. 

At the same time we are working with the Office of Personnel 

Management to create for the first time in our government the job 

family ‘‘records manager.’’ There is no such thing right now in the 

records management environment. So we have a variety of credentials that are in operation now across the Federal Government. 

Ms. KELLY. Thank you. My time is up. I yield back. 

Mr. GOWDY. Thank the gentlelady from Illinois. 

The chair would now recognize the gentleman from Tennessee, 

Dr. DesJarlais. 

Mr. DESJARLAIS. Thank you, Mr. Chairman. 

Ms. O’Connor, I just wanted to ask you a few questions. What 

was the reason you were hired in May of 2013 to join the IRS? 

Ms. O’CONNOR. So, Mr. Werfel called me the day after he started 

and said that he had undertaken this significant challenge and was 

trying to add a few extra people to help him—a chief of staff, a risk 

officer, and a counselor—and our project was to help him, as needed, in various ways to run the IRS, which at that point was facing 

new leadership and had the problems that I know your committee 

knows about. 

Mr. DESJARLAIS. Your Chief Counsel, William Wilkins, testified 

before this committee that you were a key supervisor of the IRS’ 

document review and production process. Would you think Mr. Wilkins was correct? 

Ms. O’CONNOR. I don’t quibble with what he said, but as I was 

trying to explain earlier, I wasn’t working on that full-time. There 

37 

was a large number of people who were working very hard fulltime, but I worked with them to try to help them. 

Mr. DESJARLAIS. In your time at the IRS from May 2013 to November, did you coordinate the IRS’ response to congressional requests for documents? 

Ms. O’CONNOR. I worked with the staff of the committees to 

make sure I understood what they needed. I was certainly a part 

of the process of making sure that what they were asking for was 

delivered to them. 

Mr. DESJARLAIS. Did you review emails related to IRS targeting? 

Ms. O’CONNOR. So the review process involved an enormous 

number of people who were in sort of tiers. 

Mr. DESJARLAIS. Okay. Did you review emails? 

Ms. O’CONNOR. I wasn’t in the, you know, set of employees who 

were doing the first level review or the second level review, that 

sort of thing. 

Mr. DESJARLAIS. Did you redact emails related to IRS targeting? 

Ms. O’CONNOR. I didn’t do any redacting, no. 

Mr. DESJARLAIS. None at all? 

Ms. O’CONNOR. No. 

Mr. DESJARLAIS. Okay. Did you determine the schedule of making document production to the committee? 

Ms. O’CONNOR. The schedule was basically as quickly as we 

can—— 

Mr. DESJARLAIS. So you did do that? 

Ms. O’CONNOR. —and so it was determined by the calendar. 

Mr. DESJARLAIS. Okay. So you did make the schedule? 

Ms. O’CONNOR. It was determined by the calendar. Basically we 

looked at how quickly we could amass a sizeable—— 

Mr. DESJARLAIS. Who decided when the IRS would make a document production? I mean, who specifically? 

Ms. O’CONNOR. It really was the calendar. 

Mr. DESJARLAIS. Okay. 

Ms. O’CONNOR. I mean, the effort was to do it as quickly as could 

be when there was enough to produce. 

Mr. DESJARLAIS. Did you interact with the Treasury Department 

while at the IRS? 

Ms. O’CONNOR. Yes. 

Mr. DESJARLAIS. Okay. How? 

Ms. O’CONNOR. How? Telephone call. In person. 

Mr. DESJARLAIS. Okay. What did you discuss with the Treasury 

Department? 

Ms. O’CONNOR. It was a variety of things. You know, the IRS obviously is part of the Treasury Department. Mr. Werfel reported to 

Secretary Lew, and, you know, there were a variety of different 

things at any meeting. 

Mr. DESJARLAIS. So did you update them about the response to 

the congressional investigation and targeting? 

Ms. O’CONNOR. I did provide updates when we were going to 

produce documents that we would be doing it, and things like how 

many documents were in it and that kind of thing, yes. 

Mr. DESJARLAIS. Did you interact with the White House while at 

the IRS? 

38 

Ms. O’CONNOR. I didn’t. As I explained earlier, I had the one 

interaction where I went with Mr. Werfel as he presented his 30- 

day report to the President. Other than that—— 

Mr. DESJARLAIS. So Just one time? 

Ms. O’CONNOR. I didn’t have communications with the White 

House about my IRS work when I was at the IRS. 

Mr. DESJARLAIS. Who was your point of contact at the White 

House? 

Ms. O’CONNOR. For what? 

Mr. DESJARLAIS. When you were interacting with them? You said 

you interacted once. 

Ms. O’CONNOR. I didn’t have one. 

Mr. DESJARLAIS. You didn’t have a point of contact. Okay. 

When you joined the IRS, were you given training on preserving 

Federal documents—or Federal records? 

Ms. O’CONNOR. There was an enormous amount of training right 

in the onboarding, and I think it did include records management. 

But there was so much it’s actually hard for me to remember now. 

Mr. DESJARLAIS. So it included emails? 

Ms. O’CONNOR. I think so. 

Mr. DESJARLAIS. Federal records. Who provided the training for 

you? 

Ms. O’CONNOR. I think it was computer based. 

Mr. DESJARLAIS. Okay. Did you back up your emails or official 

records while at the IRS? 

Ms. O’CONNOR. I think that my computer, because I was in the 

Counsel’s office, was being backed up, and when I left, my records 

were all copied by the IT staff in the Counsel’s office. 

Mr. DESJARLAIS. Okay. Were you ever aware of an attempt not 

to preserve IRS records by any IRS employee while you were there? 

Ms. O’CONNOR. No, I’m not aware of that. 

Mr. DESJARLAIS. Do you know, did you store your emails on your 

hard drive? 

Ms. O’CONNOR. I don’t know. 

Mr. DESJARLAIS. Okay. Do you know what the size of your email 

box was? 

Ms. O’CONNOR. I don’t know. 

Mr. DESJARLAIS. Okay. That’s fair enough. I have no further 

questions. 

Ms. O’CONNOR. Thanks. 

Mr. GOWDY. I thank the gentleman from Tennessee. 

The chair will now recognize the gentlelady from California, Ms. 

Speier. 

Ms. SPEIER. Mr. Chairman, thank you. 

I would just like to point out that the Speaker of this House 

today admonished all of us that we need to show respect to all the 

witnesses who come before us. In fact, he said we invite people to 

come and provide testimony, and frankly, they should be treated 

with respect. And I believe respect includes asking a question and 

then allowing a witness to fully answer the question and not cutting them off. So I’m hopeful that as this hearing and other hearings move forward we will continue to show respect as the Speaker 

of the House has recommended to us. 

39 

Let me ask Ms. O’Connor a question or two. Chairman Issa 

issued a report entitled, ‘‘How Politics Led the IRS to Target Conservative Tax-Exempt Applicants for Their Political Beliefs.’’ The 

report alleged that the President’s political rhetoric, quote/unquote, 

is what, quote, ‘‘led the Internal Revenue Service’s targeting of taxexempt applicants.’’ 

Ms. O’Connor, did you see any evidence that IRS employees were 

motivated by politics or political bias in screening applicants for 

tax-exempt status? 

Ms. O’CONNOR. So as I said earlier, I joined the effort after it 

started at the end of May, and I left midstream at the end of November, and so I didn’t see all the documents that were produced 

even while I was there and more continued to be produced after I 

left, and I didn’t talk to witnesses. All that said, I didn’t see any 

evidence of that, no. 

Ms. SPEIER. Are you part of a government-wide conspiracy to target President Obama’s political enemies? 

Ms. O’CONNOR. Absolutely not. 

Ms. SPEIER. Are you here voluntarily and not a hostile witness? 

Ms. O’CONNOR. I’m not hostile. I did receive a subpoena. 

Ms. SPEIER. Would you have come had you not received a subpoena last night? 

Ms. O’CONNOR. Well, the initial response that we gave pointed 

out that I didn’t have a lot of relevant information because I had 

only been at the IRS for the 6 months and it was after Ms. Lerner’s 

material was collected and it was before the discovery that she had 

emails that were not recoverable connected to a computer failure. 

So I think the initial reaction was there would be many better witnesses to assist the committee. 

Ms. SPEIER. All right. 

Now, Mr. Ferriero, for a long period of time the IRS did not back 

up their records, and in fact it was incumbent on each of the employees to print a copy of any email that they thought was relevant 

for historical perspective, which is alarming in and of itself. It’s 

also pretty alarming that they are still using Windows XP, which 

was first used in 2001, and Microsoft does not even support that 

anymore. 

So I think for every American who pays taxes there’s a great 

sense of insecurity in not knowing that any communication they 

have with the IRS may in fact be lost, and if there is one agency 

that we want to have comprehensive backup, it would be the IRS. 

Is that correct? 

Mr. FERRIERO. I agree. But I also can testify that this issue 

about outdated technology exists in many agencies across the government. 

Ms. SPEIER. All right. So this is a problem we should be looking. 

Maybe this committee could undertake something that was constructive in nature and look at all of these agencies and whether 

or not there is sufficient backup of documentation. 

As I understand it, when Mr. Werfel came to the agency back in 

May of 2013, he made a decision, implemented IRS-wide, that 

would require that there would be a daily backup of its email servers. Is that correct? 

Mr. FERRIERO. I don’t know that. 

40 

Ms. SPEIER. So you don’t know that. 

Do you know that, Ms. O’Connor? 

Ms. O’CONNOR. He did 

Ms. SPEIER. He did. So now we can confidence in knowing that 

at the end of every day, there’s a backup. All emails that have 

transpired during the day are backed up within the IRS. Is that 

correct? 

Ms. O’CONNOR. That was my understanding when I was there. 

Ms. SPEIER. All right. So my only question is, on the one hand, 

last night the Commissioner said we have had all these cutbacks 

and we need more money to be spent to be able to have the kinds 

of servers necessary to retain all this information. Mr. Werfel did 

take steps to back up everything. Are we at a point where everything is backed up, or do we still need more technology? 

And, Mr. Ferriero, maybe you can answer that. 

Mr. WESTER. Actually, the point I’d like to make about that is 

that having a backup system in place is not a recordkeeping system, and that’s, I think, part of the discussion about what kinds 

of technologies do agencies need to have to have effective electronic 

recordkeeping. The actions that have been described that the IRS 

has taken meet the needs of being able to produce emails and other 

electronic records for inquiries like from committees like this one, 

but it does not deal with the electronic recordkeeping issues that 

agencies need to deal with around disposition and preservation and 

access for business needs within agencies necessarily. 

Ms. SPEIER. All right. 

Mr. Chairman, I know my time has expired, but I just wanted 

to point out on behalf of our colleague, Mrs. Maloney, that her 

point was that 501(c)(3)s and 501(c)(4)s are tax exempt, not that 

the donors’ contributions necessarily are tax exempt, but that the 

501(c)(3)s and (c)(4)s are tax exempt for purposes of collection of 

taxes. 

Chairman ISSA. [Presiding] Well, you know, I appreciate your 

pointing that out. I think the point—and I received a text from the 

Ways and Means who thanked us for helping point that out because it’s one of their frustrations over at that committee. The fact 

is that corporations in America, if they take in, let’s just say that 

they’re providing a computer service, if they take in a million dollars and they spend a million dollars doing support and they have 

nothing left over at the end, they also pay no taxes. 

Ms. SPEIER. That’s correct. 

Chairman ISSA. So a 501(c)(4) who takes in a million dollars from 

people who want to have it do some service and spends it all pays 

no taxes. So the difference is a 501(c)(3), people may give a million 

dollars and avoid nearly half a million dollars in personal taxes. So 

the difference in scrutiny for a 501(c)(3)’s activities, not being political because political contributions are not tax deductible, the 

501(c)(4)s follow the same rules as your PAC. 

Ms. SPEIER. Except that my PAC has to disclose who makes donations to me. 

Chairman ISSA. And I truly appreciate—— 

Ms. SPEIER. And the 501(c)(4) does not. 

Chairman ISSA. And I truly appreciate that. The fact is that Congress in its wisdom has not legislated that disclosure. We did not 

41 

put it under the Federal Election Commission, a place where Lois 

Lerner worked for many years, we did not empower that. So the 

President’s OFA does not have to disclose. That’s just simply the 

law as it is. 

I just want to make sure, and I think Mrs. Maloney was very 

surprised, that people do not get a tax write-off for giving to 

501(c)(4)s, therefore the term ‘‘tax exempt’’ doesn’t have the meaning that most people think it has when they lump together charities, 501(c)(3)s. 

And it is extremely important. The American Heart Association, 

the American Cancer Association cannot engage in 49 percent of its 

activities in favor of promoting candidates because it’s a charity, 

and there is a huge difference, and it’s a difference I think the 

Ways and Means is sensitive to because legislating changes is serious business. 501(c)(4)s, in fact, do not enjoy that, just as your 

homeowners association doesn’t. 

Ms. SPEIER. Except that 501(c)(4)s are supposed to be exclusively 

for social worker purposes. 

Chairman ISSA. I appreciate that, but the court’s standing—— 

Ms. SPEIER. And they are not. 

Chairman ISSA. —is majority. 

I now recognize Mr. Cummings. 

Mr. CUMMINGS. Thank you very much, Mr. Chairman. I want to 

ask the chairman to admit into the record a letter dated June 23, 

2014, from the White House, Neil Eggleston, Counsel to the President. This is a follow-up on what was just—— 

Chairman ISSA. The letter from the White House will be placed 

into the record, without objection. 

Mr. CUMMINGS. —explaining what Ms. O’Connor was saying with 

regard to hostile witness. Just explaining, just as you explained 

yours. 

Chairman ISSA. Noncooperative witness, they refused to provide 

her. She has been informative. I appreciate that. 

Mr. CUMMINS. Mr. Chairman, you admitted it? 

Chairman ISSA. It’s in the record. 

Mr. CUMMINGS. Thank you 

Chairman ISSA. The gentleman from Texas is recognized. Would 

the gentleman yield me 10 seconds? 

Mr. FARENTHOLD. Certainly. 

Chairman ISSA. I just want to put it in perspective for Mr. Wester, and if you agree, you can answer on the gentleman’s time. If 

we continue to collect data the way they’re describing, what you’re 

doing is effectively taking all the data at the end of 6 months and 

throwing it in a trash heap. And then the difference, if you just collect a bunch of tapes, is the equivalent of owning the yard that 

your trash is hauled to and saying it’s all there. 

If I understand correctly, what you’re trying to achieve with Capstone, Mr. Ferriero is, in fact, to have the meaningful data retained 

so that it’s searchable and usable while recognizing that the vast 

majority of data is likely not to be of any value. And certainly you 

would not want to search through it to find the important data that 

is effectively being thrown out today. 

Mr. WESTER. Yes. 

Chairman ISSA. Thank you. 

42 

Thank you, Mr. Farenthold. 

Mr. FARENTHOLD. Thank you. 

Ms. O’Connor, I want to follow up on some questions Dr. 

DesJarlais asked. He mentioned, and you said you had gone 

through extensive training with the IRS on their document retention records policy and that you felt like your laptop was probably 

automatically backed up. But the actual document retention policy 

doesn’t have to do with back up or saving files. It has to do with 

printing out things that you believe fall under the Records Act. 

How many, in your tenure at the IRS, you have an idea how many 

things you printed out to keep for the archives? 

Ms. O’CONNOR. I have no volume, but just to get back to the— 

I just want to make sure it was clear what I said. I went through 

extensive computer-based training. I don’t think that much of it 

was on records retention. All that said, I did understand—— 

Mr. FARENTHOLD. Did you print out any to save? 

Ms. O’CONNOR. Oh, absolutely. 

Mr. FARENTHOLD. Would it have been more than one or two a 

day? 

Ms. O’CONNOR. I don’t have a recollection, but what I explained 

is that what happened with my electronic material when I left is 

that the IT people in the Chief Counsel’s office collected that and 

copied it, they made a copy of it. And my paper records were all 

transferred so that they could continue to be used by my successor. 

Mr. FARENTHOLD. And so when you printed them out was there 

just like an inbox type thing on your desk, you stuck them in? 

What did you do with them after you printed them out? 

Ms. O’CONNOR. I had files in my office. 

Mr. FARENTHOLD. Was it one big file or was it broken up under 

files based on subject matter? Do you recall how that was done? 

Ms. O’CONNOR. It was in different categories. I can’t really remember. 

Mr. FARENTHOLD. Okay. I guess what I’m getting at is, I’m trying 

to imagine the amount of work necessary to go in and recover, say, 

something from Ms. Lerner, and then the amount of work that 

eventually goes in when those documents get to the National Archives for sorting them out. 

Ms. O’CONNOR. I don’t have a good point of reference. 

Mr. FARENTHOLD. Mr. Ferriero, let’s talk about the records. I 

mean, assuming you have got your Capstone project, would you 

rather have more records or less records? 

Mr. FERRIERO. I would rather have the right records. And the 

identification, the work that goes on between the records manager 

and the agency and my records management staff is the creation 

of schedules. 

Mr. FARENTHOLD. But you don’t always know what’s going to be 

an important record at the time you get the email. I mean, if there 

was an email about what parking place somebody is going to get 

assigned, that probably isn’t an important record until maybe, God 

forbid, an employee comes in with a car bomb and parks in that 

parking place. All of a sudden it becomes relevant. So trusting an 

individual at the time it’s happening to decide what is a Federal 

record probably is not a very good way to do it. 

43 

Mr. FERRIERO. I agree, I agree, and that’s why the Capstone 

takes that part of the process completely out. It captures everything for the senior executives of the agency. 

Mr. FARENTHOLD. So what’s the cost of implementing it? I mean, 

does it work just like something that plugs into the network and 

captures email, I mean, in a broad general term? 

Mr. WESTER. So in general when agencies look to deploy a Capstone sort of solution to manage their email, they are usually doing 

it in the context of upgrading their email system. So at the National Archives in the past couple of years we’ve transitioned the 

email systems, and part of what we have done is rolled out this 

Capstone technology implementation along with the policies. 

Mr. FARENTHOLD. And so you’ve got it, it’s off the shelf, if somebody wants it, they can buy it for their agency? 

Mr. WESTER. It’s not quite that simple, but it’s COTS products 

that then have to be integrated by the IT shop. 

Mr. FARENTHOLD. So again, I used to work in IT. I mean, is it 

as simple as plugging in a server and loading some software and 

making sure you have enough storage space on it? I mean, is there 

much more to it? I mean, obviously, configuration and such. But I 

can’t believe the IRS Commissioner testified $10 million to put in 

a solution like that last night. Is that an accurate number? 

Mr. WESTER. I don’t know if it’s an accurate number or not, but 

what I would say is that as agencies are moving to the cloud and 

as they’re trying to identify solutions that can make Capstone 

work, it’s not a free activity. There are costs associated with doing 

integration and other sorts of things. 

Mr. FARENTHOLD. But certainly saving it digitally is a lot cheaper than printing something out when industry standards say each 

page you print out costs between 5 and 8 cents. It’s got to be a 

massive savings over that. 

Mr. WESTER. There are probably massive savings with moving to 

electronic recordkeeping. Then also it’s much easier to provide access electronically than having to provide boxes on carts in research rooms as we do today. 

Mr. FARENTHOLD. All right, I see my time has expired. 

Chairman ISSA. I thank the gentleman. 

We now go to the gentleman from Missouri, Mr. Clay. 

Mr. CLAY. I’m in shock, Mr. Chairman, but thank you anyway. 

Chairman ISSA. Oh, wait a second. 

Ms. Norton, I apologize. 

Mr. CLAY. It’s Ms. Norton. 

Chairman ISSA. They said Clay, but you have returned, and I’m 

thrilled to see the delegate from the District of Columbia, Ms. Norton. 

Ms. NORTON. Thank you very much, Mr. Chairman. I just 

thought you were looking through me. 

We have been asking about backups here. And by the way, as the 

last member, my friend from Texas indicated, and I couldn’t agree 

more about electronic backup as opposed to paper, of course it costs 

money to do hardware and to get those things. And so when you 

already have the old-fashioned stuff you go with the more costly 

old-fashioned stuff. And that’s been the story of the IRS, and of 

44 

many of our Federal agencies, because it takes money to do things 

like that. It takes money to save money. 

Before I go any further, we’ve been talking about Federal records 

of the kind of course that Congress would subpoena. Those are not 

the records that the average American would be most concerned 

about. The Federal records they would be most concerned about, for 

example, are their own taxpayer documents. Could I ask if there 

is backup for taxpayer documents, when you file your income taxes, 

for example? 

Mr. Wester? 

Mr. WESTER. I do not know the answer to that question. That 

would be most appropriately brought up with the IRS. 

Ms. NORTON. Mr. Ferriero? 

Mr. FERRIERO. I agree that that’s an IRS question. 

Chairman ISSA. If the gentlelady would yield? 

Ms. NORTON. I’d be pleased to yield. 

Chairman ISSA. We earlier had an oversight of IBM’s role in the 

subcontracts to Mr. Castillo and so on. At that time I became 

aware that, yes, the electronic data for filing of taxpayer records, 

which is the vast majority of filing today, which is far greater and 

far more vast than these emails we’re discussing, does have a system and a backup, and it is a big part, a significant part of the $1.8 

billion spent on IT. That’s actually one of the interesting points of, 

this is the small back end of the IRS compared to their massive 

spending in that database. 

Ms. NORTON. Mr. Chairman, could I ask you, at the same time, 

did we discover at that time whether there’s backup for the 

healthcare data that’s coming into the IRS, since these witnesses 

apparently don’t have that—— 

Chairman ISSA. You know, my confidence is high that it does 

exist in that data trove, but that came in after our investigation. 

But it is a significant part, hundreds of millions of dollars of the 

IRS’ new budget go forward is the maintenance of those transactions. 

Ms. NORTON. As the chairman says, this is kind of the back end, 

and this doesn’t come up very often. It’s very important. And let 

me say, because there has been a lot of back and forth and contentious—not testimony, contention among members—so let me just 

say for the record, whenever anybody loses emails there is always 

going to be a suspicion. So I just want to say that for the record. 

My concern was that nothing that Lois Lerner did, contemporaneous emails, and the question is, if you do lose—if you do crash, 

could I ask both of you, if you crash, if you’re in the old IRS, because that’s where these people are now, what should you do when 

you know that you may be called before a committee of Congress? 

What should you do when they tell you they couldn’t retrieve your 

emails? What precautions should you take? 

Mr. WESTER. So what we counsel agencies to do is to make sure 

that IT, the legal counsel, and the records management and records 

officers are all working together on the different aspects of the Federal Records Act to make sure that records are identified and preserved and policies are being followed. If there were a crash of an 

individual’s hard drive—— 

45 

Ms. NORTON. Apparently there have been a great number of 

crashes. 

Mr. WESTER. Yes. So a crash in and of itself doesn’t necessarily 

mean that Federal records have been lost, but it does indicate that 

there are probably issues that need to be addressed with the IT organization, with the records organization, with the—— 

Ms. NORTON. I’m now assuming the records have been lost. Obviously, that’s catastrophic. 

Mr. WESTER. Yeah. 

Ms. NORTON. And somebody is going to be accused, as has occurred here, because there is hardly any way to prove that negative. So I want to know what precautions should be taken. They 

tell you the records are lost, it’s a crash, what should be done? Because we may have this situation again, and now we know that the 

suspicion will come up. And I don’t regard the suspicion as unfounded. I just think that the suspicion needs to be shown. So I 

need to know what you should do since I don’t see any way we can 

avoid this happening again, and so if we get new software and new 

computers. 

Mr. FERRIERO. So the first step is to notify the National Archives 

that there is a problem so that we can start the process. 

Ms. NORTON. Do you know whether this was done in this case? 

Mr. FERRIERO. It was not done. 

Ms. NORTON. So that’s the first thing, to notify the National Archives, even before you try to retrieve it. Just say, look, I’ve lost 

something. I want you to know it. Go ahead. 

Mr. FERRIERO. And we would, as we did in this case when we 

found out, write a letter to the records manager there. 

Ms. NORTON. When did you find out in this case? 

Mr. FERRIERO. We found out when you did, that letter to Senators Wyden and Hatch, and we submitted our letter. 

Ms. NORTON. So what’s the point of notifying you, just for credibility sake? Is that it? 

Mr. FERRIERO. Well, no, because it’s we’re demanding that they 

investigate and report back to us in 30 days what’s the situation. 

Ms. NORTON. Yeah. Of course they were already doing that. So 

it must be more than that. I mean, they weren’t just sitting there. 

Mr. FERRIERO. This is the first indication we had that there was 

a problem. So we snap into action when we’re notified. We weren’t 

notified—— 

Ms. NORTON. But you were convinced that they were already trying to do that? 

Mr. WESTER. Well, what was going on at the time, it was clear 

that activity was going on. What was not clear to me until that letter appeared was that there were emails that potentially were not 

able to be reproduced and were lost. And that’s the difference for 

us. There is a lot of activities that go on across the government 

every day to recover, you know, crashed hard drives or other kinds 

of IT issues. But it becomes a serious concern of ours when it becomes increasingly clear that records may have been lost. That’s 

when we do get into action. 

Ms. NORTON. Yes, sir? 

Chairman ISSA. Go ahead. If the gentlelady would close up. 

46 

Ms. NORTON. I was going to say, when it becomes clear, I mean, 

it either is clear or not clear. It can’t be increasingly clear. Someone has to look and it may take some time. At the end of that 

search, then you can conclude it’s lost or not lost. 

Chairman ISSA. You can answer if you would. 

Mr. WESTER. Actually, I wanted to make a couple of points related to this if it was okay. 

Chairman ISSA. Sure. 

Mr. WESTER. An individual in an agency should be working with 

their records officer to make sure that they’re managing their 

records within the official recordkeeping system. I am not familiar 

with too many official recordkeeping systems that entail saving 

records on a hard drive to maintain them. You would do that for 

access purposes or reference purposes or things like that, but not 

as an official recordkeeping system. 

So part of what we would counsel agencies to do is be in contact 

with your records officer, be in contact with your IT staff, be in contact with your counsel so when these issues happen you can figure 

out what needs to be done from a Federal Records Act perspective. 

Going forward with the directive and having agencies manage 

email in automated ways by the end of 2016 and pursuing Capstone and other sorts of policy ideas that we have promulgated 

with the directive, we anticipate a day where we’ll be able to remove human intervention from this sort of activity and then be 

able to manage these records more effectively. 

Chairman ISSA. Thank you. 

Ms. NORTON. Thank you, Mr. Chairman. 

Chairman ISSA. We now go to the gentleman from North Carolina for 5 minutes. I would ask for just 10 seconds if I may. 

Mr. Wester, would it be fair to say that when you should have 

been informed if Lois Lerner knew that there could be Federal 

records on the lost drive, it would have been at the point that she 

discovered her drive was broken and/or at the point they were convinced they couldn’t recover it? At that point wouldn’t it have come 

to the National Archives as now you get to try to recover them if 

there are known to be Federal records on them? That would have 

been the timeframe is what I think I asked. 

Mr. WESTER. It would have been preferred for us to know about 

it when there was an issue that would have indicated that email 

was lost. 

Chairman ISSA. Right. And on hundreds of other places where 

Lois Lerner could have helped you look for and find the records 

that would have existed in real time rather than years later. 

Mr. WESTER. The reason I’m having difficulty answering that 

question, it’s more of an operational issue within the IRS as opposed to a National Archives sort of issue. 

Chairman ISSA. But prompt reporting to you makes a difference. 

Mr. WESTER. Yes, because the prompt reporting to us allows the 

agency itself to be on notice to itself with our imprimatur that they 

need to take action. 

Chairman ISSA. Thank you. 

Mr. Meadows. 

Mr. CHAFFETZ. Mr. Chairman, can I ask unanimous consent that 

the gentleman from North Carolina be allowed to—— 

47 

Chairman ISSA. Without objection, so ordered. 

Mr. CHAFFETZ. Thank you. 

Mr. MEADOWS. I thank the gentleman from Utah. 

And thank you, Ms. O’Connor. It’s good to have you back, good 

to see you again. In your testimony, you talked about when you got 

to the IRS in May of 2013 that all of Lois Lerner’s emails were in 

this area to be redacted and worked on. Is that correct? That’s 

what you had—— 

Ms. O’CONNOR. I think they were still in the processing part 

where they were being flattened and decrypted, but they had been 

gathered already. 

Mr. MEADOWS. So they had all been gathered. Was there not 

anybody who looked and saw this huge hole between 2009 and 

2011 and says, man, this is really strange that the email activity 

during this period, a lot of it disappeared. Was there anybody that 

looked at it, like you would look—like Treasury would look at a 

counterfeit dollar and say, gosh, this is a fake. Was there not anybody that raised that concern? 

Ms. O’CONNOR. So it wasn’t brought to my attention, and—— 

Mr. MEADOWS. Would you be mad about that? Since you were 

overseeing that, wouldn’t you be mad if somebody saw that and 

didn’t bring it to your attention? 

Ms. O’CONNOR. If somebody had seen it, I would have hoped that 

it would have been brought to my attention. 

Mr. MEADOWS. So, you think that somebody didn’t see it? 

Ms. O’CONNOR. I have no reason to think that anybody saw it 

and didn’t say anything about it. 

Mr. CONNOLLY. Mr. Chairman, can I ask the witness please to 

speak into the microphone, Ms. O’Connor? 

Mr. MEADOWS. Ms. O’Connor, can you move it closer? 

Ms. O’CONNOR. Yes, I’m sorry. 

Mr. CONNOLLY. If you could speak into it. Thank you. 

Ms. O’CONNOR. Sorry about that. 

Mr. MEADOWS. So, who is responsible for making sure that all 

the documents and materials are complete to submit to this committee, or any other committee, who is responsible to make sure 

that that body of work is complete? 

Ms. O’CONNOR. I think it’s probably the head of whichever agency has been asked—— 

Mr. MEADOWS. And so we just trust them to make sure that it’s 

complete. So there’s no real oversight within the IRS to make sure 

that what we get is complete? 

Ms. O’CONNOR. I mean, within the IRS we had a whole number 

of different layers of sort of quality checking to make sure that the 

materials that were being reviewed were appropriately redacted 

and were then produced. 

Mr. MEADOWS. But there was no—all those layers, there was 

really nobody that was there saying, well, we’ve got everything we 

need? 

Ms. O’CONNOR. The thing that I think is challenging about the 

situation is that I believe that the people who collected all of Ms. 

Lerner’s material most likely believed they had it all because they 

got successfully what was on her hard drive. I think the missing 

piece was not knowing that there had been a crash. 

48 

Mr. MEADOWS. So when they looked at, and they were going back 

to 2009, they didn’t see that there was a whole big hole of where 

all of a sudden the email volume picked up in June of 2011 when 

she got her new hard drive. They wouldn’t have seen just this unbelievable anomaly of additional emails? 

Ms. O’CONNOR. So nobody brought it to my attention. I didn’t—— 

Mr. MEADOWS. So let me go on a little bit further because here 

is the bombshell in all of this. Every one of us have been counting 

on the TIGTA report for a chronological of who knows what when. 

Over 65 percent of what they reported were solely based on emails. 

So if we have a whole lot of emails that are missing, wouldn’t that 

suggest that the whole TIGTA timeframe is at best incomplete? 

Ms. O’CONNOR. So one of the things that I think is important in 

this is that my understanding is what the IRS has done is provided 

all the emails to—— 

Mr. MEADOWS. But that’s after the TIGTA report. During the 

TIGTA report, what they reported, because this is new since then, 

wouldn’t you agree that at best it is incomplete? Yes or no? You’re 

a smart person. I have dealt with you before. Yes or no? Wouldn’t 

you agree that it would be incomplete? 

Ms. O’CONNOR. I can’t answer, and I can tell you why. The reason why is because my understanding of the TIGTA report is that 

it was based on interviews, extensive interviews. 

Mr. MEADOWS. It was based on 30 percent interviews, 65 percent—I have read the TIGTA report more—it has put me to sleep 

a number of times. So in that, if most of it’s based on emails, 

wouldn’t you say that if you didn’t have all the emails that the 

TIGTA report might not be the full story? It’s a real easy answer. 

Ms. O’CONNOR. If there were a significant and relevant email 

that was missing then that might be true, but—— 

Mr. MEADOWS. And now we know that there are thousands of 

emails that they never got to see from Lois Lerner, and maybe several others. 

Ms. O’CONNOR. I’m not sure that we know that there are thousands that we haven’t—— 

Mr. MEADOWS. Okay. All right. So let me go on very quickly to 

my good friend there with the National Archives, and I say that in 

a sincere fashion. Now that we found last night that not only is it 

Lois Lerner’s hard drive, but it’s a number of other people at the 

IRS, do they call you on a regular basis to say, listen, we may have 

this problem? Have you gotten a number of notifications from those 

higher officials that have had hard drive issues? 

Mr. FERRIERO. Not to date. 

Mr. MEADOWS. Neither of you? 

Mr. WESTER. No. 

Mr. FERRIERO. So we have a Federal law that is being ignored 

by the IRS. 

I’ll yield back. 

Mr. CHAFFETZ. [Presiding] Thank the gentleman. 

Now recognize the gentleman from Missouri, Mr. Clay, for 5 minutes. 

Mr. CLAY. Thank you, Mr. Chairman. 

And let me provide a recent history lesson to my colleagues. During the administration of President Bush government officials lost 

49 

millions of emails, including significant numbers of White House 

emails in the midst of congressional and criminal investigations. In 

one instance, the Bush administration lost nearly 5 million emails 

related to various White House matters under investigation by 

Congress. At the time a White House spokesman stated, ‘‘We 

screwed up and we’re trying to fix it.’’ 

Mr. Ferriero, your predecessor Allen Weinstein wrote to the 

White House counsel at the time, Fred Fielding, and said this: ‘‘It 

is essential that the White House move with the utmost dispatch 

both in assessing any problems that may exist with preserving 

email and in taking whatever action may be necessary to restore 

any missing email.’’ Those Bush era documents were also pertinent 

to criminal and congressional investigation. 

In 2006, special prosecutor Patrick Fitzgerald hit a roadblock 

when emails relating to the Valerie Plame leak investigation went 

missing. Fitzgerald explained, ‘‘Not all email of the Office of the 

Vice President and the Executive Office of the President for certain 

time periods in 2003 was preserved through the normal archiving 

process on the White House computer system.’’ In 2009, the Department of Justice investigated a so-called torture memo, but one 

key Bush administration official’s relevant emails had been, ‘‘deleted,’’ and reportedly were not recoverable. 

Mr. Ferriero, I understand that you were not the Archivist in the 

previous administration, but I assume you agree that the IRS is 

not the only agency to have lost emails related to congressional investigations. Is that correct? 

Mr. FERRIERO. That’s correct. 

Mr. CLAY. And I assume you also agree that the Federal Government has had significant and longstanding challenges with records 

retention, especially that of emails. Is that—— 

Mr. FERRIERO. From the very beginning of the government. 

Mr. CLAY. From the very beginning of us using emails. 

Mr. FERRIERO. And using paper. This is not just an email problem. This is a records management problem. 

Mr. CLAY. And according to the General Counsel of the Archives 

at the time, the Archivist’s requests to the Bush White House went 

largely ignored. My, my, what a few— how a few years changes 

things. 

You know, the General Counsel reported that the National Archives knew, ‘‘virtually nothing about the status of the alleged 

missing White House emails.’’ Mr. Ferriero, can you discuss some 

of the policy changes President Obama has made to improve 

records retention throughout the Federal Government? 

Mr. FERRIERO. As I described earlier, he has issued a memorandum on records management, the first time since the Truman 

administration that the White House has gotten involved, recognized an issue around records management, and authorized the 

creation of a directive by the Office of Management and Budget 

and myself that went to all the agencies outlining what we need 

to do to get our act together, as well as a set of promises about how 

the Archives is going to support that work involving industry partners in creating new tools, creating more visibility, credibility within all of the agencies around records management, professionalizing records management across the government, doing a better 

50 

job of training every member of the Federal Government in terms 

of their records responsibilities. So there has been a huge focus on 

records management. 

Mr. CLAY. So you have seen a change in how IT managers at the 

different agencies archive? 

Mr. FERRIERO. There has been a great deal of interest, support, 

and collaboration for the first time that I can see between the 

records management community and the CIO community in the 

Federal Government. 

Mr. CLAY. And do you believe that President Obama has made 

retention of these records a priority of his administration? 

Mr. FERRIERO. The administration certainly understands the 

problem and has authorized the direction for us to implement new 

ways of solving this problem. 

Mr. CLAY. Thank you. 

Mr. CONNOLLY. Would my friend yield for a question? 

Mr. CHAFFETZ. The gentleman’s time has expired. 

Mr. CONNOLLY. I would ask the chair for a little leeway given the 

fact that the chair of the full committee has many times been 

granted time throughout this hearing. 

Mr. CLAY. I have been patient, Mr. Chairman, all morning. 

Mr. CONNOLLY. I simply have a question for my colleague if the 

chair would allow it. 

Mr. CHAFFETZ. Proceed. 

Mr. CONNOLLY. I thank the chair. Is it not true, you brought the 

Bush administration experience, is it not true that many of the 5 

million emails that were lost that you described were, in fact, deleted. It wasn’t because of crashed computers. They were actually 

deleted. 

Mr. CLAY. Sure. Intentionally deleted—— 

Mr. CONNOLLY. Intentionally deleted. 

Mr. CLAY. —in order to hide whatever it is they didn’t want the 

public to see—— 

Mr. CONNOLLY. I thank my friend. 

Mr. CLAY. —out of the Vice President’s office, of all places. 

Mr. CONNOLLY. I thank my friend. I thank the chair for his courtesy. 

Mr. CHAFFETZ. The gentleman’s time has expired. 

I now recognize the gentleman from Pennsylvania, Mr. Meehan, 

for 5 minutes. 

Mr. MEEHAN. I thank the chairman and remind my colleagues, 

Mr. Fitzgerald was a colleague of mine. There were people that 

were investigated and convicted as a result of that matter. We have 

gone a long way in this without even getting close to that particular issue. 

Ms. O’Connor, I have great respect for your history as an attorney, and you, yourself, have identified that you managed complex 

litigation matters before you came here. So I’m asking for some of 

your insight even though this may have been prior to your actual 

involvement. But in June—early in June 2011, in fact, June 3, 

chairman, Ways and Means Chairman Dave Camp sent a letter to 

Doug Shulman, the Commissioner, in which he identified alleged 

discriminatory practices on the part of the IRS very specifically. 

From your perspective, when somebody alleges discrimination, do 

51 

you think that there is ever a chance that that matter gets to litigation? 

Ms. O’CONNOR. Allegations of discrimination do sometimes get to 

litigation, yes. 

Mr. MEEHAN. Yeah, so they do sometimes get to litigation, don’t 

they now? 

Mr. CONNOLLY. Mr. Chairman, could I please just ask the witness to speak into the microphone? 

Ms. O’CONNOR. I’m very sorry, sir. 

Mr. MEEHAN. Around 2011, in fact, very similar to the same 

time, there were a series—there had only been 2,000 pages of responsive materials when these original requests had come in, only 

2,000 pages, but hundreds of those 2,000 pages that came from the 

IRS were materials and emails that were purportedly showing that 

the efforts were being directed not just to conservative organizations, but at liberal organizations as well. 

So we have, in my mind, a very responsive body on the part parsing the materials that are being returned in response to the Ways 

and Means subpoena. So knowing that there are discriminatory allegations and knowing that the IRS and those who are advising the 

IRS and the very limited return are using great degrees of discretion in the form of the materials they are returning, how do you 

comport with the responsibility under the law of what is emails 

which may be subject to electronic discovery? This is not ambiguous. Certain electronic records may need to be identified and preserved when litigation is anticipated. Why was there not an effort 

undertaken on the part of people to preserve those records as far 

back as 2011? 

Ms. O’CONNOR. Which records in particular? 

Mr. MEEHAN. The records of Lois Lerner. And she was advised 

in January of 2011 very specifically that her communications were 

potentially the subject of discriminatory practices. And by your own 

admission there is a recognition that those emails may be subject 

to litigation by the requirements in preparation for litigation. As an 

attorney, I used to receive those. You are required to maintain 

those. Why weren’t those emails retained in 2011 when she had notice that she was potentially subject to discriminatory practices? 

Ms. O’CONNOR. I don’t know. I wasn’t at the agency then. 

Mr. MEEHAN. Well, I do have a question about that, and that’s 

one of the problems, because it appears that that also happens to 

be just the same timeframe, just the same timeframe within weeks 

in June 2011 that seven people from IRS had their computers 

crash. Pardon me for being suspicious about the timing. 

Now, in terms of response, and response to emails that have actually been sent to us here—well, I’m sorry, my time has expired. 

I had one more follow-up question, but I’m not going to be able to 

do it. 

Mr. CHAFFETZ. You still have 15 seconds. Go ahead. 

Mr. MEEHAN. Yeah, I need a document. Wait a second. I have it. 

I have it right here. 

The question is responsing to all emails. There have been numerous requests from this committee and others for all of Lois Lerner’s 

emails. And yet, in a letter that just came only probably a week 

or two ago, we have the IRS telling us that fulfilling the request 

52 

would require that you go beyond the search terms that were originally loaded for review. So let me ask, why are there search terms 

for emails when every email is being requested, and this is only 

weeks ago that we’re finding this response? What is ambiguous 

about every Lerner email? 

Ms. O’CONNOR. So I believe all of the—I don’t know if it’s all, but 

many of the pieces of correspondence that accompanied the documents that were produced referred to the fact that they were produced according to the terms that we had talked with your staff 

and other staffs about, the committee staff. I mean, there are four 

different committees doing investigations. We met with all four 

staffs, asked them to provide search terms. The staff of this committee provided many of those terms. 

Mr. MEEHAN. But you’re saying it was their response. What is 

ambiguous about all? 

Mr. CHAFFETZ. I’m sorry, the gentleman’s time has expired. You 

may complete your answer. 

Ms. O’CONNOR. The reason that in any large document production search terms are applied is that it enables the people who are 

seeking the material to get what they want faster. That’s the reason for the use of search terms. 

Mr. CHAFFETZ. The gentleman from Virginia, Mr. Connolly, is 

now recognized for 5 minutes. 

Mr. CONNOLLY. I thank the chair. 

Mr. Ferriero, there are 90,000 employees in the IRS, is that correct, to your knowledge? 

Mr. FERRIERO. To the best of my knowledge, yes. 

Mr. CONNOLLY. How many of them have computers? 

Mr. FERRIERO. I have no idea. 

Mr. CONNOLLY. Mr. Wester, any guess? 

Mr. WESTER. I do not have one either. 

Mr. CONNOLLY. Do you know how many computers? We had testimony last night from Commissioner Koskinen, so far this year, 

and it’s only June, 3,000 IRS computers have already crashed. 

Were you aware of that fact? 

Mr. WESTER. From the testimony last night, yes. 

Mr. CONNOLLY. So that’s a pretty high percentage. Well, let’s assume, therefore, if we stay on that trajectory, we’re going to have 

12,000 computers crash in the IRS alone, right? If you double the 

number? I mean, excuse me, 6,000. 

Mr. WESTER. Six thousand. 

Mr. CONNOLLY. Six thousand. That is a pretty high percentage 

every year of, if you assume 90,000 computers, the maximum number, that’s a lot. And my friend from Pennsylvania sees some conspiracy, it’s just coincidental that right after her computer crashed, 

Lois Lerner, seven people in Cincinnati go rogue on us and created 

BOLOs that, you know, seem to be nefarious. But the fact of the 

matter is, there is no evidence that because of one thing happening 

in Cincinnati it is related. I mean, that is a logical fallacy that is 

taught in law schools and in logic courses. The two are not necessarily related. In fact, there is no evidence the two are related 

unless one wants to treat Lois Lerner’s computer crashing as a 

unique event in the IRS, which is indisputably not true. Would you 

agree with that, Mr. Ferriero? 

53 

Mr. FERRIERO. I agree with that. 

Mr. CONNOLLY. And this isn’t unique to the IRS, is it? I mean, 

we’re dealing with an aging set of IT investments in the Federal 

Government because we don’t keep up with investment. The chairman and I, Chairman Issa, have introduced a bill, FITARA, the 

Federal Information Technology Acquisition Reform Act—a mouthful—otherwise known as Issa-Connolly, which, thank God, is being 

marked up this week in the Senate. Passed the House three times 

unanimously. And it is designed to try to upgrade our investments. 

We spend $82 billion a year in IT investments; $20 billion at least 

is inefficiently used for just maintenance of legacy systems. And 

that’s got to be of enormous concern, and if Congress wants to do 

something about it, wouldn’t it be a wise thing to try to make some 

prudent and targeted investments, Mr. Ferriero, so we’re not dealing with this kind of issue? 

Mr. FERRIERO. It sure would, and you’d have a lot of friends in 

both the CIO and the records management community if this gets 

passed. 

Mr. CONNOLLY. Right. Now, I heard you say earlier that the Federal Records Act requires print and save as the policy. 

Mr. FERRIERO. And I misspoke. It doesn’t—that language is not 

actually in the law, but that’s the guidance that many agencies are 

following. 

Mr. CONNOLLY. All right. So based on that law, some guidance 

was issued that says, at least for now, print and save. I assume the 

reason for that guidance is because with antiquated systems we 

don’t want to take the risk of backup that could crash. 

Mr. FERRIERO. Well, actually, the guidance came before electronic mail was even—— 

Mr. CONNOLLY. Oh, so we haven’t even updated? 

Mr. FERRIERO. That’s right. 

Mr. WESTER. That’s right. The guidance issue precedes the IT 

problem. 

Mr. CONNOLLY. Well, Lord almighty. 

Mr. FERRIERO. Which is why EMPA is very important, to get that 

passed. 

Mr. CONNOLLY. Yeah. By the way, why not use the cloud? I 

mean, our legislation would consolidate data centers throughout 

the Federal family. Why not move to the cloud? Do you have security concerns, Mr. Ferriero, with respect to the cloud such that we 

shouldn’t do that as an alternative to paper backup? 

Mr. FERRIERO. We are using the cloud in the National Archives. 

We’re using the Federal cloud. 

Mr. CONNOLLY. Okay. Because we heard from Mr. Koskinen last 

night that he was a little concerned about security, and I understand that concern, but one could make the argument, especially 

after the Lois Lerner computer crash, that actually security might 

be better in the cloud, in the private sector-managed cloud, than, 

frankly, relying on these old, cranky, obsolete, hard-to-maintain 

systems in the Federal Government. 

Mr. Wester? 

Mr. WESTER. I would say that the 6103 issues that were brought 

up last night are very serious concerns, and we have them as well 

for IRS records that we work with the IRS to maintain and provide 

54 

access to. But your point is well taken, and it’s actually one of the 

items within the directive to move the Federal Government to the 

cloud and ensure that as agencies move into the cloud that effective records management policies and practices are implemented. 

Mr. CONNOLLY. I just want to say, Mr. Chairman, in closing, and 

I thank the chair for his indulgence, I understand some who want 

to pursue a conspiracy theory and try to use an isolated—well, not 

such an isolated event, the crash of a computer at IRS, and ascribe 

to it all kinds of nefarious reasons. I prefer to say from an IT perspective, frankly, unfortunately, this is par for the course. This is 

what happens when we allow the degradation of our IT investments throughout the Federal Government, and I don’t know how 

we can be surprised. And the fact that there were 3,000 computer 

crashes already this year in one agency, the IRS, I think makes the 

point that, sadly, what happened to Lois Lerner’s computer is hardly unique. I thank the chair. 

Mr. CHAFFETZ. I thank the gentleman. 

Now recognize the gentleman from South Carolina, Mr. Gowdy, 

for 5 minutes. 

Mr. GOWDY. Thank you, Mr. Chairman. 

Mr. Archivist, I want to thank you again for coming to South 

Carolina. You were and remain a big hit with everyone who had 

a chance to hear you, and I had a number of people ask that you 

come back to South Carolina and that I not come back to South 

Carolina. 

So with respect to the retention of documents, can you give us, 

not as an expert, just 35,000-foot level, why is it important that we 

as a Republic retain documents? 

Mr. FERRIERO. So that the American people can hold their government accountable, so that they can see for themselves how decisions were made, so that they can learn themselves from the original documents about our history. 

Mr. GOWDY. Right. There strikes me that there is a historical 

component, there is a constitutional component, so you can have 

checks on the separation of powers, and there is also a legal component. And you were gracious enough to brag about not being a lawyer earlier. We have an expert lawyer sitting beside you, so I am 

going to ask Ms. O’Connor what spoliation of evidence is. 

Ms. O’CONNOR. So I encountered that once in a case. And what 

happened was that after the case had begun, somebody who 

worked for one of the parties, without realizing the material was 

supposed to have been kept, destroyed it, burned it is what happened, and then it wasn’t available for the trial. 

Mr. GOWDY. Right. And from an evidentiary standpoint what 

happens? There is a presumption that whatever you destroyed or 

altered would not have been good for you, right? 

Ms. O’CONNOR. So the judge had to go through an effort of evaluating whether or not there should be a negative inference from 

that. 

Mr. GOWDY. Well, the jury can decide that. The judge decides 

whether or not to charge that, but the jury ultimately determines 

whether or not to draw that inference. And it’s important for us to 

note that the reason we have that spoliation of evidence in the law 

is so that people don’t destroy evidence that would not be favorable 

55 

to them. I mean, it’s commonsensical. If you can get away with destroying evidence that is not favorable to you, everyone would do 

it. So we have to have a presumption built in. 

And with respect to my colleague, the former United States Attorney from Pennsylvania, you talked about search terms. I have 

got to be candid with you, I don’t know what search term you 

would use if you’re looking for an email where Lois Lerner responds ‘‘yoo-hoo’’ when somebody says a Democrat beat a Republican the night before. What search term would you recommend? 

Ms. O’CONNOR. So I haven’t looked at them in a while, but I’m 

pretty sure ‘‘Democrat’’ and ‘‘Republican’’ were on the list. 

Mr. GOWDY. But what if ‘‘Democrat’’ and ‘‘Republican’’ weren’t in 

the email? What if they used the name of the Democrat who beat 

the name of the Republican, and her response was ‘‘yoo-hoo.’’ 

Ms. O’CONNOR. So most of the terms came from the majority 

staff of this committee and included many politicians, actually. 

Mr. GOWDY. But what’s wrong with the search terms being ‘‘to’’ 

and ‘‘from’’? 

Ms. O’CONNOR. Well, that would get you everything, which 

would—— 

Mr. GOWDY. Right. That’s my point. 

Ms. O’CONNOR. —purposes of reducing the amount to review in 

order to get—— 

Mr. GOWDY. But why? Why reduce it? If you want access to all 

of the information, if you want access to all of the truth, why are 

you reducing the search terms? Why not just ‘‘to Lois Lerner’’ and 

‘‘from Lois Lerner’’? 

Ms. O’CONNOR. Right. As I explained earlier, I can’t remember 

if you were here, at the beginning of the project we met with the 

staffs of the four committees—— 

Mr. GOWDY. Right. And it’s important to note that that was your 

request to meet with them because you thought the original request was too voluminous. And my response is, when any administration, Republican, Democrat, Whig, Bull Moose, don’t care, but 

when you come to a committee of Congress and you try to negotiation a reduction in the search terms because of time constraints or 

resources and this happens, let me tell you the next subpoena 

you’re going to get is going to be simply ‘‘to’’ and ‘‘from,’’ and you 

can save yourself a trip to come over and try to negotiate the 

terms. It was done to make life easier for you, not for Congress. 

Agreed? 

Ms. O’CONNOR. Honestly, honestly, it was done in order to get 

you the material you wanted faster. 

Mr. GOWDY. Well, it didn’t wind up happening. So shame on us 

if we let it happen again. 

What negative inference would you draw from the failure to retain the documents in this particular case. 

Ms. O’CONNOR. You’re talking about Ms. Lerner’s hard drive 

crash? 

Mr. GOWDY. No, what I’m talking about is the failure to retain, 

whatever the mechanism of the failure, whether it’s intentional or 

just negligent. You have someone who said maybe the FEC will 

save the day. You have someone who said we need a project, but 

we need to make sure it’s not per se political, and then the emails 

56 

disappear. What negative inference would you draw, if you were 

just one of our fellow citizens watching this, you know that initially 

there was a denial of targeting, you know that she picked a very 

obscure ABA conference to disclose that targeting had taken place, 

you know that initially it was blamed on two rogue agents, in fact, 

Jay Carney perpetuated that myth, you know that Lois Lerner took 

the Fifth Amendment, you know that the President of the United 

States said there is not a smidgeon of corruption, and now you’re 

told that the evidence doesn’t exist, email don’t exist. What negative inference, if you were just a regular citizen sitting at home 

watching this, and you’ve got that litany of failed defenses, those 

false exculpatory statements, and now you’re told that evidence 

doesn’t exist, what negative inference would you draw? 

Ms. O’CONNOR. One of the things that I found instructive in the 

material that became public in the last week was that Ms. Lerner 

had sent her hard drive to the Criminal Investigative Unit for 

them to attempt to recover it. And the inference that I would draw 

is that if she wanted intentionally to destroy the material she 

would not have sent it to the Criminal Investigation—— 

Mr. GOWDY. Did she ever use her personal computer? 

Ms. O’CONNOR. I don’t know. 

Mr. GOWDY. She did. 

Mr. CHAFFETZ. The gentleman’s time has expired. 

Now recognize the gentleman from Vermont, Mr. Welch, for 5 

minutes. 

Mr. WELCH. Thank you very much. Thank you, Mr. Chairman. 

A couple of things. First of all, I want to thank you all for being 

here, subpoena or not. I appreciate the work that you do. 

Second, I want to say a couple of things. One is, I am a strong 

supporter of congressional oversight, and I do believe that when 

Congress requests information it should be provided. But I have 

some significant concerns about the way we’ve proceeded on this 

hearing. 

When you go back to the basics here there is a very serious question about what happened to the emails, and we’re investigating 

that. The IG has investigated that. But there is also a very serious 

question about the abuse of the 501(c)(4) status. And that, in my 

view, is a worthy topic of investigation. No group should be targeted because of their political affiliation, whether they’re conservative or liberal. I totally agree with that. But no one should be allowed to abuse the 501(c)(4) status. That’s worthy, in my view, of 

investigation. It’s not a tax exemption, as Mr. Issa mentioned, but 

it’s a way of funneling money under the cover of doing social welfare work which is really about political advocacy. 

And political advocacy is fine, but do it in the daylight, not in 

the dark, and don’t undercut the merits and the legitimacy of 

501(c)(4) social welfare organizations by turning them into political 

operations. And, frankly, I’d like to see our committee giving equal 

weight to that investigation. This dark money that’s going into politics in my view is really pernicious for democracy. 

And it’s terrible if we have any agency of government that’s not 

providing requested information. There is always a fair question if 

there has been a computer crash, how did that happen? Was it intentional? But there is also this fundamental question about the 

57 

money and politics and the use of the 501(c)(4) organizations by liberal or conservative groups basically to hide the money that’s going 

into political advocacy. 

A second thing Mr. Chairman, is that, yes, we have to examine 

these questions, but I do not think that jumping to conclusions and 

assuming the worst possible interpretation is a way to, A, give respect to folks who dedicate their lives to public service, whether it’s 

in the IRS or any other agency; and B, any way to educate the 

American people about what the problems may be in an organization because the whole point of accuse first and examine facts second is to attack the very legitimacy of the organization that’s being 

investigated. 

And I’d point out that when you lose information it does raise a 

question, but I know Mr. Issa, our chairman, during the Bush administration had to explain that oftentimes that can happen with 

computers. Was it innocent? Was it deliberate? We don’t know. 

And one suggestion, talking to Mr. Lynch, who may discuss this, 

why not have the IG take a look at this? Why not have the IG do 

it? You know, we’ve got a partisan situation going on here that’s 

getting in our way of getting to I think what is a shared goal of 

getting to the bottom of this. 

Chairman ISSA. Would the gentleman yield? 

Mr. WELCH. I will yield. 

Chairman ISSA. This won’t surprise you. The way this investigation started is I went to the IG, TIGTA, because they had the ability to look at 6103 and we were interested and they began that investigation. One of the problems is the IG was never given that 

drive, nor were any entities independent and outside the IRS, 

which is, you know, one of the reasons that as an IT background 

guy, I’ve never seen a disk drive that has zero left on it. 

Mr. WELCH. Well, may I, reclaiming my time, thank you. And I 

thought that was a good move on your part. I think we’re getting 

a little bit off the rails now, because I think if we got the IG to 

look into this question where essentially there is a motivation issue 

that both sides without the facts can come to their own conclusions, 

and usually we all come to conclusions to suit our political bias, I 

think it just creates a swamp, you know. 

The dysfunction that we have in this committee, Mr. Issa, as you 

know, and I appreciate your aggression, but there has got to be, in 

my view, a balance where, yes, we investigate real hard, but it 

doesn’t so overwhelm that this fundamental question about the 

501(c)(4) abuse, in my view, suddenly is not an issue. I mean, I was 

one of the people who was concerned and wrote a letter to the IRS 

saying, what’s going on? Do your job. Investigate. 

And, you know, there’s no free ride around here. If you’re a taxpayer and you’re not paying your taxes, I think the IRS should investigate you. I think if you’re a 501(c)(4) organization and you’re 

essentially a cover for a liberal or conservative political ideology 

and you’re not doing social welfare work, you should lose your 

501(c)(4) investigation. 

And thank you, Mr. Issa, for doing that with the IG initially, and 

I’d like to see us get back on track here and maybe they can help 

us out with the specific question that we’re dealing with now. 

And I yield back. 

58 

Mr. CHAFFETZ. I thank the gentleman. I’ll now recognize myself 

for 5 minutes. 

Ms. O’Connor, the IG, the Inspector General issued their report 

on May 14, 2013. You were then appointed, I believe, on May 30 

of 2013. What did you do? What’s the first thing that you do when 

you walk onto this new role? 

Ms. O’CONNOR. I got a badge. I had some training. I think the 

6103 training—— 

Mr. CHAFFETZ. But how did you organize? Who did you bring into 

the room and say, all right, we need to move forward, this is what 

I got to do? Who do you bring into the room at that point? 

Ms. O’CONNOR. Well, it wasn’t like that. I mean, it really was— 

the first and most important thing was the 6103 training, because—— 

Mr. CHAFFETZ. Okay. So after you got trained, then what did you 

do? 

Ms. O’CONNOR. And then I believe I met with Mr. Werfel to see 

kind of what was on the plate and what the marching orders were. 

Mr. CHAFFETZ. Okay, after that, yeah? 

Ms. O’CONNOR. I can’t remember the sort of play by play, honestly. 

Mr. CHAFFETZ. Who did you gather around you to get your job 

done? 

Ms. O’CONNOR. I didn’t gather anybody around me to get my job 

done. 

Mr. CHAFFETZ. There was nobody, you just did it all by yourself? 

Ms. O’CONNOR. No. I mean, my job, as I explained earlier, was 

to advise the Commissioner on a variety of things. One of the 

things that I did was to work with a team that was fairly small 

at that time, but got very large later. 

Mr. CHAFFETZ. Who was on that team? 

Ms. O’CONNOR. It’s a whole number of IRS people and it changed 

over time. 

Mr. CHAFFETZ. Go ahead and start with somebody. I’d like a list, 

please. 

Ms. O’CONNOR. I think the best way to get you accurate information on that would be to ask the IRS. 

Mr. CHAFFETZ. No, I’m asking you. You were the IRS at that 

point. You were the person in the room that they were reporting 

to. So you come with great title. Tell me who you were interacting 

with. 

Ms. O’CONNOR. The team had some 6103 experts on it. It had 

some tax litigators on it. 

Mr. CHAFFETZ. Who? Who? Name a person. I want actual names. 

Ms. O’CONNOR. Honestly, I would like to be able to have accurate 

and complete testimony, and it’s going to be hard for me to recreate 

it. 

Mr. CHAFFETZ. Can you name even one person that you 

interacted with? 

Ms. O’CONNOR. Well, I certainly interacted with Mr. Werfel quite 

a lot. 

Mr. CHAFFETZ. Okay, Mr. Werfel. Who else? 

Ms. O’CONNOR. Mr. Wilkins was the Chief Counsel and I 

interacted with him. 

59 

Mr. CHAFFETZ. We assume that, those are the people you reported to. I want to talk about who reported to you. Name some 

people that reported to you. 

Ms. O’CONNOR. I think that the best way to do it is 

to—— 

Mr. CHAFFETZ. I know, but you’re here in front of Congress, you 

knew this was going to happen. Name one person that you 

interacted with. 

Ms. O’CONNOR. I interacted with a lot of people. 

Mr. CHAFFETZ. I know you did, a lot of people. Name somebody. 

Ms. O’CONNOR. Who I interacted with? 

Mr. CHAFFETZ. Yes. 

Ms. O’CONNOR. The Deputy Chief Counsel, Chris Sterner. 

Mr. CHAFFETZ. Chris Sterner. Anybody in the IT arena? 

Ms. O’CONNOR. I didn’t actually interact directly with people in 

the IT arena. There was somebody whose name was—I can’t even 

remember his last name. I think his first name may have been 

Ben. 

Mr. CHAFFETZ. So a guy named Ben, a dude named Ben. Who 

else? 

Ms. O’CONNOR. I don’t recall. 

Mr. CHAFFETZ. You were there 6 months. You had people around 

you that would jump at your very presence. Who are these people? 

Ms. O’CONNOR. Nobody ever jumped at my very presence, I can 

assure you of that. 

Mr. CHAFFETZ. I’d like to ask them that. Who are these people? 

Ms. O’CONNOR. Again, I didn’t interact with the IT staff very 

much. 

Mr. CHAFFETZ. You were there 6 months. You had some people 

reporting to you, did you not? 

Ms. O’CONNOR. I didn’t have any direct reports, no. 

Mr. CHAFFETZ. Did you have people that were responsive that 

you asked questions of? 

Ms. O’CONNOR. On any variety of issues—— 

Mr. CHAFFETZ. Who did you ask questions of? 

Ms. O’CONNOR. I worked with a lot of people in the Chief Counsel’s office. If we could get—— 

Mr. CHAFFETZ. Ms. O’Connor, you’re a very bright person, you’re 

very bright, you’re a very personable person. Why are you being so 

elusive. Why don’t you just tell us who you asked questions of, who 

interacted with you? You haven’t named a single person. 

Ms. O’CONNOR. I’ve named Deputy Chief Counsel Chris Sterner. 

Mr. CHAFFETZ. You named three people that you report to. I 

want to hear of people that you asked questions to, that ran, got 

the information, and then came back and gave you information. 

Name one person in that category. 

Ms. O’CONNOR. People who I asked questions of who ran and got 

me the information? I don’t even think I can characterize anybody 

that way. 

Mr. CHAFFETZ. Did you ever ask anybody in the IRS to provide 

you information? 

Ms. O’CONNOR. Sure, yes. 

Mr. CHAFFETZ. Give me one example. 

60 

Ms. O’CONNOR. In the Tax Exempt organization, the person who 

replaced Ms. Lerner, whose name is Ken Corbin, was somebody 

who I would call to ask for information about how the unit was 

working and—— 

Mr. CHAFFETZ. Okay, there is one. How many people do you 

think you asked information of? 

Ms. O’CONNOR. Probably a lot of people. 

Mr. CHAFFETZ. Can you name more than one? 

Ms. O’CONNOR. I’ve named a couple now. 

Mr. CHAFFETZ. Why are you being so elusive? 

Ms. O’CONNOR. I’m not being elusive. I haven’t been there 

for—— 

Mr. CHAFFETZ. How long would it take you to get that information and provide that information to me? 

Ms. O’CONNOR. The IRS can provide that information to you. 

Mr. CHAFFETZ. Why can’t you provide that information? 

Ms. O’CONNOR. Because I’m not there anymore and I don’t have 

any records from when I was there. 

Chairman ISSA. Mr. Chairman? 

Mr. CHAFFETZ. Yes. 

Chairman ISSA. I think you may be unfair to the witness. The 

fact is that last night the Commissioner could not remember 60 

days ago who told him about the importance of losing those documents. Last night, he could not narrow 60 days—less than 60 days 

ago within 30 days when he was told. I think that, in fact, the ability to remember at the IRS is simply limited. 

Mr. CHAFFETZ. Do you know Thomas Kane? 

Ms. O’CONNOR. I do. 

Mr. CHAFFETZ. Who’s that? 

Ms. O’CONNOR. I think his title was Associate Deputy Chief 

Counsel. 

Mr. CHAFFETZ. And did you interact with him? 

Ms. O’CONNOR. I did. 

Mr. CHAFFETZ. I think my time has expired here. And in deference to what this committee does, I can’t believe that you’re not 

more candid with us and just telling us who you interacted with, 

a simple, easy question. It’s hard to believe that it took 5 minutes 

to try to extract out a dude named Ben and one other person. 

I yield back. I’ll now recognize the gentleman from Massachusetts, Mr. Lynch, 5 minutes. 

Mr. LYNCH. Thank you, Mr. Chairman. 

I think sometimes the search for conspiracy is interfering with 

the meaningful oversight that we should be doing. I think sometimes my colleagues on the other side of the aisle are reaching for 

the most grandiose conspiracy theory and forgetting that we do 

have some evidence of wrongdoing here that we should be going 

after. I just want to try to refocus on that. 

In spite of all the conspiracy allegations, there is some evidence 

here before us—and I have been hearing from some of my colleagues on this side of the aisle that there is no evidence of wrongdoing. And look, I am not here to make excuses for the IRS. I am 

not here to, you know, to protect the IRS or to downplay what they 

have done here. But let me try to refocus here. There was serious 

wrongdoing on the part of the IRS here. There is evidence that 

61 

they used improper search terms. They used: ‘‘Tea Party’’ search 

terms, ‘‘patriot’’ search terms. If you had a complaint in your file 

about government spending or taxation or if your case file, in applying for 501(c)(4) status, included statements that criticized how 

the government was run, the IRS targeted you. The IRS also asked 

inappropriate—asked for inappropriate information. They asked for 

the names of donors. They asked for the list of issues that the applicant cared about and what their positions were on those issues. 

They asked whether the applicant or officer intended to run for office. They asked the political affiliation of the applicant for the 

501(c)(4). 

Now, Ms. O’Connor, are you aware—I know you weren’t at the 

IRS when this analysis was going on, but you went there later. 

And also I think you might have been on some of the interviews 

we had with some witnesses from the IRS. Are you aware of an 

IRS BOLO, Be on the Lookout listing for groups with ‘‘progressive’’ 

in their name? 

Ms. O’CONNOR. Yes. 

Mr. LYNCH. Okay. Are you aware of evidence that the IRS employees treated progressive organizations in a similar manner as 

conservative groups? 

Ms. O’CONNOR. Certain, yes. 

Mr. LYNCH. I ask unanimous consent, we actually have a report 

here of the IRS, entitled ‘‘Inappropriate Criteria Were Used to 

Identify Tax-Exempt Applicants for Review.’’ And we also have a 

letter here from Acting Commissioner Werfel that indicates the 

progressive groups that were also targeted. 

Ask unanimous consent that they be entered into the record. 

Mr. JORDAN. [presiding.] Without objection, so ordered. 

Mr. JORDAN. I would also ask unanimous consent to enter the report from the majority staff, ‘‘Debunking the Myth that the IRS 

Targeted Progressives.’’ 

Mr. LYNCH. My information is more recent and is completely accurate, and it includes a disavowal by the inspector general of your 

report, which he testified in. 

Mr. JORDAN. I would stand behind the accuracy of this report as 

well. I am just saying we are going to enter this in the record and 

you are going to enters yours in the record. 

Mr. LYNCH. Okay. We can fight it out. 

Mr. JORDAN. All right. Thank you. 

Mr. LYNCH. The IRS subsequently released information that the 

IRS targeted Emerge America, ACORN-affiliated group. Now, look, 

I am not saying this to mitigate the wrongdoing or the misconduct 

of the IRS. This makes it worse. It makes it worse that the IRS 

was actually violating the constitutional rights of progressive 

groups and conservative groups. This is wrongdoing. It doesn’t help 

the conspiracy theorists, but it certainly indicates wrongdoing, serious misconduct on the part of the IRS, probably our Nation’s most 

powerful agency. It’s got information on health care, finances, 

knows everything about you. So they are violating the free speech 

of our citizens, violating their freedom of association of our citizens, 

violating the freedom to petition the government of our citizens, 

and violating I think the constitutional right against search and 

seizure because of the way they are conducting themselves. 

62 

And this isn’t just evidence; the IRS has stipulated this in their 

report. They said, Yeah, we did this. So we have some serious 

wrongdoing. And now, in pursuing the evidence of that wrongdoing, 

we have 27 months of emails disappear. And I am asking you, how 

do we restore the trust in this? How do we pursue this in a way 

that—look, I am not going after President Obama here, but I am 

going against the IRS because of their misconduct. And that’s the 

thing we are overlooking here. In going for this grand conspiracy 

theory, you are overlooking the stipulated fact that the IRS conducted misconduct here. And I think we are missing what we 

should truly be going after. Can you suggest what we should be 

doing? Any of the witnesses here? In terms of getting to the bottom 

of this, getting to the IRS misconduct? 

Mr. JORDAN. Witnesses, if someone wants to respond? Great. If 

not, we will move to our next. 

Mr. LYNCH. Okay. 

Mr. JORDAN. I thank the gentleman. 

The gentleman from Ohio is recognized. 

Mr. TURNER. Thank you. I appreciate Mr. Lynch’s statements 

that this was wrongdoing and misconduct. The issue that we have 

that we are all struggling with, which is how Mr. Lynch ended his 

question, is what do you do to pursue that wrongdoing and misconduct? We are still sitting here without a complete understanding of the basics of an investigation, which are who, what, 

when, where? Everybody knows the four Ws, who, what, when, 

where. And we know that the missing emails in part thwart the 

ability to complete that story, as also included is Ms. Lerner’s failure to willingly testify before this committee. I want to put all that 

aside for a second. 

Ms. O’Connor, you are White House Counsel. I am a lawyer. You 

are a lawyer. I want to step away from the IRS problem and investigation for a minute and just have a comparative discussion, because I think in the responses there may be some misunderstanding with respect to the independent—the Treasury Inspector 

General for Tax Administration. And I would like to talk to you a 

minute about their powers. Not with the IRS, but just in general. 

I would like to compare the powers of the Treasury Inspector General for Tax Administration with the FBI. Because one of the 

things that we heard from the commissioner yesterday is, well, we 

are going to do—the Inspector General is going to do an investigation. And that is probably a good thing. There are many who don’t 

believe it’s enough. But you and I, having a discussion on a comparative just of authority and powers, perhaps can let other people 

decide whether or not that’s sufficient investigation or whether an 

additional investigation is going to take it. So let’s talk about the 

inspector general and the FBI. The inspector general’s mission 

statement is that they were established under the IRS Restructuring and Reform Act to provide independent oversight of IRS activities. They promote the economy, efficiency, and effectiveness of 

the administration of the internal revenue laws. It is committed to 

the prevention and detection of fraud, waste, and abuse within the 

IRS. The Department of Justice says the FBI includes upholding 

and enforcing criminal laws of the United States. Pretty big distinction. So let’s go down with some of those powers. Because the 

63 

FBI is involved in criminal investigations, and the inspector general is involved in internal investigations in the IRS. We give them 

different powers. Let’s go over some of those. Now, the inspector 

general does not have the ability to compel people to testify outside 

of the IRS. Isn’t that correct? 

Ms. O’CONNOR. I believe that’s correct. 

Mr. TURNER. The FBI does. Correct? 

Ms. O’CONNOR. Yes. 

Mr. TURNER. Yes. So when the inspector general undertakes an 

investigation of the IRS, they are only going to be able to interview 

those people that are there. Only the people at the IRS are the only 

ones that they can compel to testify. If there is somebody outside 

the IRS who may have been involved or have information about it, 

the inspector general falls short, doesn’t have the ability to do that. 

They can’t even do that with respect to contractors. So when people 

say the IG is doing an investigation, it’s not the same. Let’s go to 

another one. The IG doesn’t have the ability to arrest anybody. 

Right? 

Ms. O’CONNOR. So I want to be helpful, but I am not an expert 

on the IG act. 

Mr. TURNER. You know the IG cannot go and arrest someone. 

Right? You are a lawyer, I am a lawyer. Ms. O’Connor, you know 

this. You are the White House General Counsel. They wouldn’t hire 

you unless you knew this basic—the five things I am going to ask 

you are real basic, simple comparatives. The IG cannot go arrest 

someone, right? 

Ms. O’CONNOR. I trust what you are saying, but I haven’t reviewed the IG act. 

Mr. TURNER. We both know the FBI can, right? 

Ms. O’CONNOR. Yes. 

Mr. TURNER. Okay. Excellent. Warrants. The IG does not have 

an ability to execute a warrant; the FBI does. So the difference 

here is that the FBI can go seize things, where the inspector general has to request them like we do, and ask for things to be delivered to them. So the FBI can actually go in and take hard drives 

and take materials that could lead them to an investigation. The 

IG is in a responsive or requesting mode. Subpoena power. 

Again, the IG has that, but only of Treasury employees. The FBI, 

as you will agree, the FBI can subpoena anybody who is relevant 

to the investigation. Right? 

Ms. O’CONNOR. Yes. 

Mr. TURNER. Okay. So the issue that we have here is when people say, well, we are doing an investigation, the IG is doing an investigation, you and I can agree it is not the same type of investigation the FBI would do. And the FBI’s mission is enforcing the 

criminal laws of the United States. And as you know and as Mr. 

Lynch was saying, the concern that people have of this wrongdoing 

and misconduct is that perhaps a law was broken. Now, if you are 

going to do a criminal investigation, wouldn’t you agree that the 

FBI is the one that should be doing a criminal investigation versus 

the IG? 

Ms. O’CONNOR. So my—— 

Mr. TURNER. I am not talking about the IRS, just in general. 

Just come with me on the issue of just in general if you have a 

64 

criminal investigation and you are the White House Counsel, Ms. 

O’Connor, do you assign that to an inspector general or do you assign that to the FBI? Where would you put that as an attorney? 

Ms. O’CONNOR. My understanding of the situation here is 

that—— 

Mr. TURNER. No, we are not in a situation here. I am saying if 

there is a criminal matter and you are assigning it, do you assign 

it to the IG or the FBI? Come on, you can give me this one. You 

would give it to the FBI, right? 

Ms. O’CONNOR. I recall when I was at the IRS, that the IG had 

a number of deputies, one of whom was—his deputy for investigations. They seemed to be very hardworking. 

Mr. TURNER. I am certain they are incredibly competent people, 

but by law, they are limited in their investigative powers. And the 

scope that they are given of their mission is not the scope we gave 

the FBI. We don’t need five FBIs. So wouldn’t you agree that if 

there is a criminal matter, you wouldn’t choose the IG; you would 

choose the FBI. 

Ms. O’CONNOR. If the matter is what happened to a laptop within the IRS—— 

Mr. TURNER. No, I am not asking your opinion on this matter. 

Just criminal. I tell you what. It belongs in the FBI. The IG has 

very limited powers. They should not be the sole source of this investigative authority. 

Thank you. 

Mr. JORDAN. I thank the gentleman. 

The gentleman, Mr. Davis, is recognized for 5 minutes. 

Mr. DAVIS. Thank you. 

Thank you very much, Mr. Chairman. 

Ms. O’Connor, let me continue the focus of your work during 

your tenure at the IRS, because supposedly that’s the reason you 

were subpoenaed to testify here today. When were you hired by the 

Internal Revenue Service? 

Ms. O’CONNOR. May 30 of 2013. 

Mr. DAVIS. And it’s my understanding that you had a role in assisting Acting Commissioner Werfel in complying with the numerous congressional investigations into IRS employees’ handling of 

applications for tax-exempt status. Is that correct? 

Ms. O’CONNOR. Yes. 

Mr. DAVIS. And according to an August 2nd, 2013, letter from 

Mr. Werfel to this committee, and that would be back when you 

were still there, the Internal Revenue Service went to extraordinary lengths to cooperate with Congress. The letter explains that 

the IRS dedicated, ‘‘more than 100 employees who are working diligently to gather documents, to review them, and protects the taxpayer-specific information in them as required by law.’’ Is that correct? And if so, did you have a role in setting up that process? 

Ms. O’CONNOR. I had a role in advising and helping the people 

who were engaged in that process, yes. 

Mr. DAVIS. Thank you. 

Then, Mr. Chairman, I would ask unanimous consent to enter 

this August 2nd, 2013, IRS letter into the record. 

Mr. JORDAN. Without objection, so ordered. 

Mr. DAVIS. Thank you. 

65 

Ms. O’Connor, when the IRS set up the process, what was the 

goal? 

Ms. O’CONNOR. The goal was to get as much information as Congress and the four different committees and other investigators, 

such as the IG, to get them what they needed to be able to conduct 

their investigations, and to do it accurately and with care with regard to the redactions, and as quickly as we could. 

Mr. DAVIS. There appear to be a lot of confusion about why the 

IRS did not discover the lost emails earlier. So let’s see if we can 

clear that up. It is my understanding that it was Congress, not the 

Internal Revenue Service, that prioritized what documents you 

searched for, and Congress, not the IRS, that provided the search 

terms. Is that correct? 

Ms. O’CONNOR. Yes, that’s correct. 

Mr. DAVIS. Well, in addition to using Congress’ search terms, 

what did the IRS do to further facilitate the production of documents? 

Ms. O’CONNOR. Among the things the IRS did was to ask lawyers 

and other staff people who were dedicated to things like implementing the tax laws and enforcing them to put aside their jobs 

and work full time to review documents. The IRS increased the IT 

resources to the effort, bought servers, got additional IT resources 

in order to stabilize a very large system. We also, I, personally, and 

Mr. Werfel as well, met with and talked with the staff of the investigative committees, who in addition to saying who the employees 

were, whose material they wanted, and which search terms they 

were interested in, they also had very specific requests for certain 

types of documents. For example, I would like the training materials, you know, from this period of time, things like that. And we 

worked hard to satisfy those sort of one-off requests, as well as getting to everybody the large body of material that was sought. 

And at the time at which I left, more than 400,000 pages of material I think had been produced. And I have read in the media 

that at this point, the IRS has produced somewhere near threequarters of a million pages of material. And I think that it is a lot 

of material, and to have been able to produce in that period of time 

I think reflects a very serious effort to be able to provide what the 

committees were seeking in a speedy fashion. 

Mr. DAVIS. Let me ask you, how do you respond to allegations 

from Republican Members of Congress that you were part of some 

IRS plot to obstruct Congress? 

Ms. O’CONNOR. Well, it is not at all true. And I think that the 

record of the IRS while I was there and since then reflects very, 

very hard work and diligence at providing the materials that the 

investigating committees were seeking through them. 

Mr. DAVIS. My time is up. So I thank you very much. 

Thank you, Mr. Chairman, and I yield back. 

Chairman ISSA. [presiding.] We now go to the gentlelady from 

Wyoming, Ms. Lummis, for 5 minutes. 

Mrs. LUMMIS. Thank you, Mr. Chairman. 

Some of our colleagues on the other side of the aisle have opined 

that maybe we are getting a little off base about the attention that 

we are focusing in this investigation. 

66 

So I would like to focus back on some of my concerns about the 

failure of Lois Lerner to testify, her failure to testify truthfully 

about whether she broke no laws, whether she violated no rules, 

and whether she did nothing wrong. My concern here is if someone 

could come before this committee and say that and then assert 

their Fifth Amendment right against self-incrimination, and then 

subsequently this committee finds that their own emails refute the 

fact that she did nothing wrong and that she violated no laws, that 

we should be aggressive in trying to find those emails. We already 

have some of them. And some of those emails suggest that she was 

very actively involved in violating laws. We know that she gave 

confidential taxpayer information to another agency, and that that 

violates the law. We know that she specifically, while saying that 

it was rogue agents in Cincinnati who were involved in this, was 

actively involved herself in looking at, for example, Crossroads 

GPS, which is a Karl Rove-linked organization, Karl Rove being 

one of the agitators that the political left most dislikes. 

Here, as the Wall Street Journal editorial board writes, Ms. 

Lerner twice refused to testify before Congress; IRS General Counsel William Wilkins claimed 80 times that he couldn’t recall events. 

And subsequently it goes on to explain that the most troubling 

new evidence are documents showing that Ms. Lerner actively corresponded with liberal campaign finance group Democracy 21 and 

the Campaign Legal Center, which had asked the IRS to investigate if conservative groups, including Crossroads GPS, were violating their tax-exempt status. After personally meeting with the 

two liberal outfits, Ms. Lerner contacted the director of the Exempt 

Organizations Examination Unit in Dallas to ask why Crossroads 

had not been audited. 

I believe that Ms. Lerner was appropriately held in contempt of 

Congress. I, quite frankly, believe that Ms. Lerner should be tried 

for her violations and that she should become an example that’s 

held up to Federal employees and especially employees in the IRS 

who violate the rights of Americans in their role and capacity as 

public servants. And that is why I am interested in knowing why 

her emails are not—all of her emails are not available. That’s why 

I want to know why we find out just now that her email crashed. 

So I believe that this investigation is on the right track; it’s perfectly legitimate. And I am of the opinion that this inquiry is well 

placed. 

You know, every single night the University of Wyoming backs 

up every email for the entire State of Wyoming. And every night 

the State of Wyoming backs up every email for the University of 

Wyoming, along with their own. So they not only have a backup 

system, they back up each other so there is a redundant backup 

system for all of the emails in the Wyoming State Government and 

the University of Wyoming, because they are reciprocating with 

each other. Why that kind of thing isn’t happening in an agency 

like the IRS, where people are relying on the veracity of what’s 

going on there to get consistent, clear, rules and regs interpretation, guidance to taxpayers, and fair treatment of the people of this 

country, is beyond me. 

Now, here is my question, Ms. O’Connor. During your time so far 

in the White House, have you been aware of any instances of the 

67 

White House reviewing documents requested by Congress under 

the guise of White House equities? 

Ms. O’CONNOR. As I explained earlier, and I am not sure if you 

were here yet, I came today to be able to answer questions about 

my time in the IRS, the 6 months that I was there, which is what 

the chairman’s letter to me said that this hearing would be about. 

And so I am not prepared to talk about my other experiences today. 

Mrs. LUMMIS. Now, if we were to subpoena you and ask you to 

talk about whether you were aware of any instances of the White 

House reviewing documents requested by Congress under the guise 

of White House equities, would you come back and answer that 

specific question? 

Ms. O’CONNOR. Well, I have been here for a long time today. But 

what I would say about the issue of questions about the White 

House, I am happy to work with you and the staff to see if we can 

accommodate and provide some of the information or what we can 

do. I am happy to provide that kind of assistance to support legitimate oversight inquiries. 

Mrs. LUMMIS. Thank you, Ms. O’Connor. 

Mr. Chairman, I yield back. 

Chairman ISSA. Thank you. 

Mr. Cummings, you have anything further? I am going to close. 

I was going to let you close first. 

Mr. CUMMINGS. Let me ask you something, Ms. O’Connor. 

Going back to some of Mr. Gowdy’s questions. I was sitting here 

trying to figure this out. I take it that you went to—you said the 

search terms were given to you by the committees. Is that right? 

Ms. O’CONNOR. Yes. 

Mr. CUMMINGS. So Mr. Gowdy made a big deal that maybe you 

shouldn’t have used search terms; you should have just said from 

and to. 

I assume, and correct me if I am wrong, I take it what you were 

all trying to do was to get the relevant documents out first? Is that 

how that works? In other words, because you had the 6103 issues, 

you had to go through the documents. I take it that—how did it 

come about that you even got the committees to even be giving you 

search terms? You follow what I am saying? 

Ms. O’CONNOR. I do. The volume of material, what I recall, was 

there were 82 or 83 employees. And the way the IRS went about 

collecting their material was just to pull all of their emails that 

were on whatever computer they had, and from employee to employee, that was massive. And because of 6103, which is the law 

that requires the IRS to protect taxpayer information and, therefore, in this instance, to redact taxpayer information, every scrap 

of that information would have to be reviewed before it’s produced. 

And that would take a very, very long time. And in order to make 

it much more efficient and to get you the documents about the subject at issue, the tax-exempt organizations and their screening 

process and how applications were processed, we said to the committees, If you could tell us the terms you want us to use, we will 

zero in on the material in this vast body of information and get you 

the material about the tax exempt organization process. Our staffs 

were very cooperative and provided us—— 

68 

Mr. CUMMINGS. And staff knew what was going on. They knew 

what was going on there. And you were trying to get the information out as out as fast as you could that the committees wanted. 

Is that right? 

Ms. O’CONNOR. Yes. 

Mr. CUMMINGS. Now, so when you get that information, let’s say, 

for example, you use the search terms, you cull out the search term 

emails, what happens with the ones that are left? In other words, 

so you have gotten—you are trying to get them out, but you still 

got some left that might very well have information in them that 

the committee would be interested in. And a lot has made of making sure that you got—we got all of the emails. So what happens? 

Do they go back then and look at those? Do you follow what I am 

saying? 

Ms. O’CONNOR. So when I left the IRS, we were still producing 

the rolling productions of documents that had been culled through 

the search term process. And I don’t know whether than from what 

I have seen in the media, what exactly they did after I left, but my 

understanding with from what I read, is they pulled at least Ms. 

Lerner’s and I don’t know if other people’s from the initial set that 

hadn’t hit the search terms in order to provide them to the committees. 

Mr. CUMMINGS. Do you know whether that was the plan to go 

back and pick up the ones that you may not have gotten at the beginning? Do you follow me? After the initial search terms? 

Ms. O’CONNOR. At the point at which I left, which was midstream, the plan was to continue complying with the subpoenas. A 

lot of the decisions were being made just sort of day to day what’s 

next. But the intent was to continue to comply with the subpoena. 

Mr. CUMMINGS. Thank you. 

Mr. Ferriero, you know, this whole thing of 2,000 computers 

crashing, we are in trouble, aren’t we? I mean, in IRS, 2,000 so far 

this year. 

Mr. FERRIERO. As I said earlier, the state of technology in the 

Federal Government is not where it should be. 

Mr. CUMMINGS. I mean, that’s a lightweight description. It 

sounds like we are in the Dark Ages. I am not trying to be funny. 

If you got computers crashing, 2,000, and we are only half a year, 

and there was something that was entered into the record not long 

ago about services for repair of computers, services not being needed, and apparently, it said something about not delivered, there is 

one thing to have the money. It’s another thing to spend the money 

effectively and efficiently. I mean, from what you have seen, are we 

spending the money effectively and efficiently in these various 

agencies, including IRS? Or do we need to do something differently? 

Mr. FERRIERO. I think we are on the right track. We have—for 

the first time, we have the CIO Council and the Records Management Council working together on solutions. We have engaged the 

industry in developing new tools to help the agencies do their work 

more efficiently. So we are on the right track. And from what I just 

heard about your support for increased funding for IT, that makes 

me very optimistic. 

Mr. CUMMINGS. I want to thank you all for being here. 

69 

Thank you, Mr. Chairman. 

Chairman ISSA. Thank you. I now want to correct the record as 

best I can. I know Mr. Lynch will not agree with this. But he cited 

a number of reports, August 19, 2013, and a follow-up report. I just 

want to make it clear our comprehensive staff report of April 7, 

2014, ‘‘Debunking the Myth That the IRS Targeted Progressive 

Groups,’’ stands for itself. And it comes after these earlier questions. I know none of you are here for the core question of—— 

Mr. LYNCH. Mr. Chairman? 

Chairman ISSA. No, it is my time—for the core questions of who 

was targeted. So we are going to leave that aside, and we will let 

the report speak for itself. I think the paper record is fine. 

Mr. LYNCH. I actually asked the witness, though, Mr. Chairman. 

I derived that information from the witness using the documents 

there. I wasn’t relying on the documents alone. I had independent, 

you know, reassurance from the witness what the document indicated. That’s why I used it. 

Chairman ISSA. From Ms. O’Connor. 

Mr. LYNCH. Ms. O’Connor, yes. 

Chairman ISSA. Somebody who had absolutely nothing to do with 

the underlying investigation. 

Mr. LYNCH. No, she was actually there when the witnesses from 

the IRS came forward and said that they had targeted progressive 

groups. That was her testimony. 

Chairman ISSA. Okay. 

Ask unanimous consent I start over then. 

Ms. O’Connor, what’s your independent knowledge that progressive groups were targeted and treaty unfairly by the people in Cincinnati, Lois Lerner, or others in Washington? 

Ms. O’CONNOR. So I now can’t remember the exact question. 

But—— 

Chairman ISSA. That’s my question. 

Ms. O’CONNOR. The BOLO spreadsheets had progressive and 

other terms on them that reflected progressive organizations. 

Chairman ISSA. Isn’t it true they had the couple of terms that 

might have done it in another section, and when they looked for 

reconstituted ACORN, that was a criminal enterprise, that was an 

entity that went out of business because it was found to have committed crimes? So is that really the same as looking at all Tea 

Party Patriots? 

Now, I will ask you the question again, not a rhetorical question 

that we know the answer to. What treatment are you aware of to 

any progressive group that gave them unfair questions, hauled 

them over the coals as to who their donors were, whether anyone 

in their organization intended to run for political offices, or any of 

that treatment that has been specified as what conservative groups 

went through. What is your knowledge of that? 

Ms. O’CONNOR. So my knowledge is limited. And I want to make 

that clear. 

Chairman ISSA. What is your firsthand knowledge of any of that? 

Ms. O’CONNOR. My only firsthand knowledge of it is the fact that 

I did see some of the emails, and not all of them, that were produced in the period of time when I was at the IRS. And the email 

production was not complete, obviously. I didn’t conduct a—— 

70 

Chairman ISSA. So you have no personal knowledge of abuse of 

progressive groups or liberal groups at all. Studies have shown that 

there were a number of names that came up that were not all conservative patriot groups. But the unfair treatment of these groups, 

the 2 years and more of withholding their approval, granting them 

neither a yes nor a no, do you have any knowledge—do you have 

any knowledge of that treatment or mistreatment occurring to any 

progressive left-leaning group? 

Ms. O’CONNOR. So my knowledge is not direct from being there. 

I saw some of the emails. I saw, for example—— 

Chairman ISSA. I just want to make sure I understand, your answer is, no, you do not have direct knowledge. 

Mr. LYNCH. Mr. Chairman, the title of the report that you—— 

Chairman ISSA. No, wait a second. This is my time. Does the 

gentleman have a question, a point of order? 

Mr. LYNCH. Yeah. What’s the title of your report? It says, ‘‘Debunking the Myth of Progressives Being Targeted.’’ 

Mr. CUMMINGS. Did you shut the mike off? 

Chairman ISSA. No, I stopped the clock to let him go as long as 

he wants. 

Anything else, Steve? 

Mr. LYNCH. Okay. Sir, my line of questioning was to counter the 

assertion in your report, and the title of your report that progressives were not targeted. The questions to the witness indicated that 

progressive search terms and BOLOs were used to target progressive groups. That’s the simple point I was trying to make. And I 

think it’s relevant, and I think it’s admissible. That’s all. 

Chairman ISSA. And Steve, I appreciate that. But as you know, 

there were additional names added sort of after the jig was up that 

brought additional names, progressive names in. But no evidence 

has been found of their being unfairly treated, which is different 

than a search term. 

Mr. LYNCH. They were targeted, though. They were targeted. 

They are going out—it is relevant in both cases of the IRS intent, 

which is to go after certain people with those search terms. 

Chairman ISSA. The IRS’ intent, Lois Lerner’s intent has been 

well demonstrated in over a thousand pages of multiple reports. 

Mr. LYNCH. And it includes these progressive names as well. 

That’s all. 

Chairman ISSA. Lois Lerner’s intent was to overturn Citizens 

United, which she objected to. And her emails show that. That’s 

what we really have. We have the President shaking his fist at 

Citizens United, and then her saying in public statements, they 

want us to do it, they want us to do it. 

Mr. LYNCH. That is a characterization. 

Chairman ISSA. No, those are her words. 

Ms. O’Connor, just one more time, you have no firsthand knowledge of mistreatment of progressive groups, do you? 

Ms. O’CONNOR. All of my knowledge is based on having seen—— 

Chairman ISSA. Okay. So written records that have been provided to this committee would be the best for both sides to put out 

in their reports. 

Ms. O’CONNOR. Written records, and the records of the witnesses 

that you have spoken with, yes. 

71 

Chairman ISSA. Okay. Now, we called you here because in fact 

you were at the IRS during the time in which a vast amount of documents were delivered pursuant to search terms. Is that correct? 

Ms. O’CONNOR. I think you called me here because I was there 

for 6 months during—— 

Chairman ISSA. During the time that vast amounts of documents 

were delivered pursuant to search terms. You have been testifying 

to that. I just wanted to set the stage. During that time, in August, 

because in fact, we were getting voluminous amounts of documents 

based on search terms not of our choosing, but of everybody’s 

choosing, they just kept adding to it, and we were not getting the— 

and they were being prioritized. We were getting, quote, progressive stuff seemingly first. And the minority was using it at hearings and so on. And we knew that Lois Lerner was beginning to 

emerge as a key figure. I issued a subpoena, and item one on my 

subpoena said all documents on Lois Lerner, all her emails. Did 

you have any question but that I was saying stop, at least as to 

this committee, both sides, stop bombarding us with documents 

that your organization would constantly say we have—we have 

given you 64,000, we have given you 64 million, we have given you 

64 billion. What we wanted was Lois Lerner’s emails, and you 

never went and looked for them for the rest of your time. They 

were not safeguarded. It was not discovered they weren’t there. We 

asked for Lois Lerner because she became a person of interest for 

being the center of the unfair treatment and the deliberate effort 

to overturn Citizens United using the power of the IRS. So we 

issued a subpoena. That subpoena was very clear. And we reissued 

it in February. We wanted all her emails, while the IRS continued 

to, as you said it, slowly go through these search terms. Right? And 

deliver other documents first. You have testified to that today, they 

delivered other documents first even after our subpoena was 

issued. 

Ms. O’CONNOR. Your subpoena asked for a number of things. 

Chairman ISSA. It asked for, and we made it very clear in testimony and in communication, we wanted all her emails. 

Ms. O’CONNOR. I understand that. The subpoena was much 

broader than that. And all the material that the IRS continued to 

produce was responsive to your subpoena as well as to the other 

committees. And I know it’s—— 

Chairman ISSA. It’s a question of first. 

Ms. O’CONNOR. —frustrating that there were many committees 

that were investigating, but there were. 

Chairman ISSA. Right. And I am just going to close with something. 

Ms. O’CONNOR. There were a lot of demands. 

Chairman ISSA. I want to make sure one thing since you were 

at the IRS. You said four committees. There is really two committees times two sides of the Capitol. There is us and our Senate copartners, there is the Ways and Means and Senate Finance. Senate 

Finance and Ways and Means have the ability to see all documents 

unredacted. Right? 

Ms. O’CONNOR. Yes. 

Chairman ISSA. Did you, in fact, as soon as you got a printout, 

just send it to them in bulk? 

72 

Ms. O’CONNOR. No. 

Chairman ISSA. No. So you applied much of that $10 million 

worth of time and effort going through and selecting what to give. 

You never gave those documents in bulk to the 6103 entities that 

were allowed to receive it. Had you given all of Lois Lerner’s 

emails, looked for all of them and given them to Ways and Means 

and Senate Finance, then you would have known there were substantial amounts missing much sooner, wouldn’t you? 

Ms. O’CONNOR. Could I just address what you just said? 

Chairman ISSA. Absolutely. 

Ms. O’CONNOR. The reason that even the committees that can receive the 6103 information didn’t just get massive quantities of 

anybody’s emails is because from the beginning of the investigation, their request letters were specific. They wanted certain kinds 

of material. They wanted training materials. They wanted BOLO 

lists. They wanted emails to and from this person or to and from 

that person. There was a lot of very specific material. And even 

your subpoena, I think, identified a number of different witnesses 

that you wanted. And I don’t believe it said only give us the first 

one first. That said, I did hear you in August say that you had a 

priority on her emails. I think I heard Mr. Jordan say that Mr. 

Wilkins was a priority of him. I mean, there was a lot of competing 

demands. And the IRS tried to balance all of that. It was really a 

challenge. I think at the end of the day, a lot of information has 

been provided. And I gather—I completely understand that it’s 

frustrating to not get, you know, the stuff that you wanted first. 

But I will say that they were doing their best to try to get a lot 

of material to a lot of requesters. 

Chairman ISSA. Mr. Lynch, you have anything? 

Mr. Davis? 

Then I will close with no further questions, other than a short 

comment. I have spent almost 30 years in business. I have gone 

from non-network to PC networks to Novell networks to Microsoft 

networks. I have gone through Lotus Notes and exchange servers. 

I have gone through a lot of technology. Today, my entire companies are run on an Amazon cloud. It backs up every day. And incrementally, I can name any day for as far back as I want to go the 

date, and they can restore in a very short period of time a functional copy so that I can search it. The tools exist at my former 

company, which is not a large company. It’s a few hundred million 

dollars. They exist to search the entire record of years’ worth of 

millions of emails and millions of other factual events, invoices and 

the like, and do so, compliant with Federal rules of discovery, because, in fact, the Federal rules of discovery do not tolerate you 

saying, here is paper, sort through it, or our dog ate it, or we destroyed everything by simply not backing it up after 6 months. 

So as this committee, including Mr. Cummings, looks at holding 

the Federal Government and all agencies to a level, we will look 

to the Federal Government’s own rules of discovery, the Federal 

Government’s own rules of what we hold the private sector responsible for. 

I think for the Archivist, Mr. Ferriero, there is no question that 

if we held ourselves to the same level that we hold corporate America for, and the IRS holds them accountable for, we would get a 

73 

very different result. The IRS, in fact, insists on direct transparency when they are doing an audit as to data and information. 

That’s expected. And in fact, Price Waterhouse Coopers also insists 

on that. We have gone too long having excuses. We purge after 45 

days. We purge after 6 months. We allow 90,000 disk drives that 

are unsupervised, including laptops, to download 6103 information 

and go home. Not too many years ago, we had one of the great 

scandals, millions of Social Security numbers of our veterans that 

were on a laptop that left. Reforms were insisted at that time to 

try to protect information. Very clearly, no one knows what was on 

Lois Lerner’s laptop that entered and left as a portable, as I understand it, or any of these others. The protections that we expect the 

private sector to do, and we are handling a case right now where 

the FTC holds the private sector responsible if there is a loss of 

personal information, we don’t hold ourselves responsible for. 

So I am delighted, Ms. O’Connor, that you accepted our subpoena. 

Mr. Ferriero, Mr. Wester, I am even more delighted that you are 

partners in us trying to bring a level of accountability to the Federal Government to maintain the important records the American 

people have a right to. 

And I look forward to follow-up investigations and follow-up legislation, including portions of Mr. Cummings’ bill if we can find offsets for the cost of the bill, so that we can, in fact, bring up the 

standards of the Federal Government in accountability. Because 

the American people right now do not believe or trust that, in fact, 

we are getting the honest answer from the IRS. And much of it is 

based on not getting prompt answers to questions. But much of it 

is based on the systematic failure to retain documents for a period 

of time that the American people assume the documents will always be kept at. I want to thank you. I believe this panel was 

unique in that it really had people that you ordinarily wouldn’t see 

next to each other. But it played well together for a problem we 

are dealing with, and Mr. Ferriero and Mr. Wester, for a problem 

we are going to deal with together for many years. 

I now recognize the ranking member. 

Mr. CUMMINGS. Thank you very much, Mr. Chairman. 

I just wanted to say as I was listening to you—first of all, I 

thank you also for being here. 

And thank you, Mr. Chairman. I will be very brief. 

But Ms. O’Connor, I know the IRS employees are watching this. 

And I want them to know that we appreciate their efforts. When 

I listen to what you were saying, the four committees and what you 

had to do, and these employees are working very, very hard. And 

I just want to thank them for what they do. And I know it’s kind 

of difficult sometimes. And I know you are no longer there. But you 

said they were working very, very long hours, hard hours trying to 

deal with various priorities, getting all kinds of information from 

staff, and trying to balance all of that. And I am sure many of them 

have come under criticism. But I just want them to know, on behalf 

of our Nation, we appreciate them. 

Chairman ISSA. Thank you. 

And there is always one more thing that arrives at the end of 

a hearing that gets into the record. 

74 

This one is from Mr. Cummings. H.R. 1234, his bill that has been 

mentioned several times, has a score by the Congressional Budget 

Office of only $15 million for the entire government, which says 

very clearly that, in fact, the $10 million claimed last night by the 

Commissioner would seem to be an excess cost compared to CBO’s 

government-wide score in order to meet Mr. Cummings’ legislative 

initiative. 

So I look forward to working with the ranking member and Mr. 

Ferriero to try to make this a reality. And I guarantee you we will 

find the $15 million. And with that, we stand in recess. 

[Whereupon, at 1:13 p.m., the committee was adjourned.] 

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Æ 


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