EPA Employees Didn't Intentionally Break the Law With Use of Instant Messages, Says Watchdog

Widespread reliance on instant messages by senior Environmental Protection Agency employees did not produce intentional violations of the Federal Records Act, though procedural improvements are needed, a watchdog found.

The Dec. 21 EPA inspector general report requested in 2014 by Rep. Lamar Smith, R-Texas, chairman of the House Science, Space and Technology Committee, examined 3.1 million text messages sent from government-issued devices reported quarterly from July 1, 2014, to June 30, 2015.

“We did not find instances where the EPA used text messaging to intentionally circumvent the Federal Records Act,” wrote IG Arthur Elkins Jr. “We found that the EPA implemented policies and procedures for preserving text messages, and took steps to make employees aware of the updated records management policy.”

But more attention by the administrator and the EPA Office of Environmental Information, the watchdog added, is needed to address compliance with the Freedom of Information Act and record-keeping of responses to requests from Congress.

The rise of instant messages in official communications has prompted criticism of practices at other agencies, notably the Internal Revenue Service, for fear that officials might sidestep records-act requirements. Some IMs in the end are considered “transitory” while others become permanent federal records.

The auditors also found that “EPA’s mobile device management processes do not prevent employees from changing the device’s configuration setting for retaining text messages.”

They recommended that the EPA deputy administrator remind employees that text messages are subject to FOIA requests and require formal procedures for responding to congressional requests. The agency largely agreed.

“I applaud the inspector general at EPA for recognizing that there is a problem with EPA officials using texting for official business and the conflict it presents for maintaining records,” Chairman Smith said in a statement. “Out of the 3.1 million text messages analyzed by the IG, only 86 of the text messages were logged into the enterprise system at EPA as a federal record.  This vast deficit is astonishing, and further discredits the claim made by EPA Administrator Gina McCarthy that only one out of her 5,000 text messages was an official record according to EPA.”

Smith had suspected that EPA officials were destroying records in “an apparent pattern of behavior directed at subverting transparency and accountability.”

Ranking Member Rep. Eddie Bernice Johnson, D-Texas, took a different view. “I am glad this independent oversight body continues to bring an objective voice to the mission of oversight,” she said in a Thursday statement. “This report lays down some positive recommendations for the agency and helps to put to rest some of the sweeping and false allegations that have been made about EPA’s records management issues.”