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HHS on the hunt for emails Issa wants

A health department official responsible for setting up key parts of the health law likely cannot recover emails sought by congressional subpoena.
Darrell Issa arrives for a hearing on Capitol Hill in Washington, D.C., on June 23, 2014.
Darrell Issa arrives for a hearing on Capitol Hill in Washington, D.C., on June 23, 2014.

A senior health department official under Republican scrutiny for the flawed rollout of likely deleted some emails now sought by congressional investigators, msnbc has learned.

The Department of Health and Human Services planned on Thursday to alert Congress and the National Archives and Records Administration, which is charged with enforcing federal record keeping laws, about the problem, according to a copy of a letter being sent to Archives.

There is no evidence that Marilyn Tavenner, an Obama appointee who leads the Centers for Medicare & Medicaid Services, intentionally hid information or deleted records; rather, the gaps appear to be the result of sloppy record keeping. But Republicans have attempted to turn missing emails into a political scandal before, as they did with Lois Lerner, a former IRS official at the center of a separate controversy over alleged targeting of conservative nonprofit groups.

The department is working to reconstruct Tavenner’s inbox and expects to recover “most, but not all” of the voluminous email sent to her office, which is charged with running the Affordable Care Act’s health insurance exchanges.

Tavenner’s office has faced intense scrutiny from Republican lawmakers seeking answers around the launch of the website, set up to help people purchase insurance through the exchanges.

The Federal Records Act requires government employees to preserve all official “records,” a definition that includes some but not all emails.

According to the letter and two senior HHS officials with knowledge of the matter, Tavenner receives an unusually large number of emails --  some 10,000-12,000 per month -- since her address is public and advocacy groups occasionally urge their members to contact her. In order to stay below the agency’s Microsoft Outlook email size limit, Tavenner would regularly delete emails after copying or forwarding them to her staff for retention.

However, Tavenner didn't follow that procedure every time, meaning some emails never made it to her staff for safekeeping before being deleted, the letter explains.

The recordkeeping problem was discovered as HHS officials were collecting documents in response to subpoenas from Republican Rep. Darrell Issa of California, who chairs the House Oversight Committee. Issa began looking into in the fall.

HHS officials have since been working to determine the scope of the problem and recover as many emails as possible. On July 31, officials determined they were likely missing some emails and should notify the Archives “out of an abundance of caution,” the letter states.

A team of HHS officials is now working to reconstruct Tavenner’s inbox by collecting emails from people she typically corresponded with and through other methods. They expect to recover “most, but not all” of Tavenner’s emails, the letter adds.

“While we have not identified any specific emails that we will be unable to retrieve, it is possible that some emails may not be available to HHS, and we are therefore filing this memorandum,” Kathleen Cantwell, a records management official at the agency wrote.

All emails sent within HHS are most likely recoverable, while correspondence with people outside the agency will be more difficult or impossible to retrieve, according to the HHS officials with knowledge of the matter.

The outside emails Tavenner remembered to copy to her staff were likely saved, the officials said.

While it’s impossible to know how many messages might be missing, HHS staffers studied her email habits for a month and estimated that at least 90 percent of her traffic was within the agency, the officials said.

The HHS team is collecting emails from her immediate staff as well as a larger universe with whom she most regularly communicated. They're also drawing on records collected earlier in response to unrelated Freedom of Information Act Requests, the officials said.

So far, HHS been able to recover more than 71,000 emails that match search terms set out by Issa’s subpoena, though they’ve only recently begun pulling correspondence from the wider network and expect that number to “increase dramatically,” the officials said.

There are no significant time gaps, nor any apparent patterns in the missing records, the officials added.

Responding to Congressional requests has become a major task for the agency, which has expended more than 23,000 staff hours and turned over more nearly 135,000 pages of documents in response to the subpoena.

Through a combination of these methods, the officials said they feel confident they can assemble “a robust and fulsome record” containing the “vast majority” of Tavenner’s correspondence.