Editor's Note: The story has been updated to include a statement from the IRS.
The IRS and Commissioner John Koskinen have been under intense fire from legislator in recent months, culminating with calls to censure and impeach the commissioner and a lawsuit claiming the agency illegally deleted texts and failed to save internal messages.
Government accountability watchdog Cause of Action (CoA) Institute filed a legal complaint May 23 alleging the IRS violated the Federal Records Act and the group's right to information by deleting text messages and not archiving instant messages between employees using the Microsoft Office Communications Server (OCS).
Download: Cause of Action Institute Legal Complaint
According to the complaint, IRS officials told CoA the agency abided by a 14-day retention policy, then deleteding text messages after two weeks. CoA researchers were told the policy was an IT necessity because storing too many old messages would bog down the system.
The legal complaint filed by CoA notes IRS officials did not obtain a waiver from NARA to allow the destruction of these messages, which would put the agency in violation of the Federal Records Act.
While digging into the policy, CoA also discovered an agreement between the IRS and National Treasury Employees Union (NTEU) that prohibits the agency from saving instant messages sent over OCS.
The agreement referenced in the complaint was reached in 2010 as the IRS prepared to launch the OCS service.
To assuage potential fears that the instant messages could be used to track employees' work habits, the IRS signed a memo of understanding stating the service will only be used to facilitate communication between employees.
"OCS is only intended to be utilized as a communications and collaboration tool," the memo reads. "It is not the employer's intention to use OCS as a method by which to monitor/track employees, measure employee productivity or act as a time and attendance tool."
Further, the memo states that "with regard to the instant message function, no log or message content will be saved at the server or on a desktop."
NTEU President Tony Reardon said that last stipulation — which was quoted in CoA's complaint — was part of the introductory comments in the memo and does not apply to this situation.
"The language cited in the complaint about the retention of instant messages is not a term of the agreement," he said in a statement to Federal Times. "It is part of the preamble of the agreement, which memorializes a determination made at the discretion of the IRS as the employer and can be changed at the employer's discretion."
Reardon also noted the agreement only applies to union employees, not IRS management or political appointees. The memo, he said, merely allows union employees to opt out of using the messenger app and ensures that any discussions about union business over OCS is protected.
"Moreover, all agreements between the agency and the union have to be administered in accordance with law, rule and regulation," he added. "To the extent that any provision is inconsistent with existing law, neither party has to follow it."
CoA is asking a judge to require the IRS to develop guidelines and procedures for retaining all messages — including instant messages on the internal server and text messages between employees concerning government business — and force the agency to keep a record of every message until the guidance is in place.
"The IRS and Commissioner Koskinen have a legal obligation to preserve official work communications between employees," CoA President and CEO Alfred Lechner said. "This lawsuit seeks to ensure that IRS follows the law. No agreement with a union or any other party can supersede Americans' right to know how the IRS makes decisions."
The IRS declined to comment on pending litigation but said in a statement to Federal Times that the agency has a longstanding policy of retaining any and all communications that relate to government business.
"If instant messaging is used to conduct official business, then the communication needs to be saved for records retention purposes," the statement said. "The IRS is in the process of updating its guidance for employees related to instant messaging, which remains an area of rapid change given evolving technology."
Aaron Boyd is an awarding-winning journalist currently serving as editor of Federal Times — a Washington, D.C. institution covering federal workforce and contracting for more than 50 years — and Fifth Domain — a news and information hub focused on cybersecurity and cyberwar from a civilian, military and international perspective.