EPA Employees Using Encryption Apps May Violate Records Laws

Following news stories of disgruntled federal employees using encryption technology to criticize the Trump administration, a conservative legal group has filed a Freedom of Information request with the Environmental Protection Agency in a bid to enforce federal records laws.

“It appears that some employees at the EPA may be using encrypted apps on their phones to avoid transparency laws in an effort to conceal their communications from internal and external oversight,” wrote Henry Kerner, assistant vice president at the Cause of Action Institute. The group filed the FOIA request on Feb. 2 with acting EPA administrator Catherine McCabe and Chief Information Officer Ann Dunkin.

Specifically, Cause of Action is requesting:

1. All records created or received by any EPA employee on Signal.  
2. All records reflecting any permission, clearance, or approval granted to EPA employees by the agency, Archivist and/or the National Archives and Records Administration for the use of Signal, or other instant messaging applications, for the conduct of official EPA business.
3. All records concerning EPA efforts to retrieve, recover, or retain records created or received by EPA employees on Signal.

Kerner, quoting a Politico story, said EPA employees are allegedly using encryption software applications such as Signal and WhatsApp to prevent political appointees from undermining EPA’s mission or deleting valuable scientific data.

As the Senate nears a vote on Trump’s controversial nominee to lead the agency, Oklahoma Attorney General Scott Pruitt, many EPA employees have spoken to the press or through private channels to express fears about Trump’s agenda, which likely will include cutting EPA’s budget and curbing its regulatory authority on such issues as climate change.

The legal group wants EPA to disgorge some of these employees’ messages.

“Under the Federal Records Act, the EPA has a legal obligation to preserve all records made by employees working on official government business,” Cause of Action wrote in its “Federal Records Act notification” and FOIA request for documents. “This obligation is all the more important if EPA employees are using personal cellular devices or private accounts for such purposes. These messages must also be made available under the Freedom of Information Act.  Agency leadership, Congress, and the public have a right to know if federal employees are using encrypted electronic messages to evade transparency.”

One EPA staffer with a “general distrust of this new administration” spoke to Government Executive on condition of anonymity. The employee uses Signal to communicate personal information on personal time. “I take the agency's records very seriously,” the employee said. “We all get frequent training on handling work records, and on the appropriate use of personal vs. work equipment. I’m not doing the people’s business” on the private technology. “There's no reason to discuss work using our personal accounts.”

Personal issues, the employee clarified, includes “opinions and beliefs about national politics.” Addressing the Cause of Action and Trump team’s general effort to crack down on such employees venting, this employee said, “It's pretty obvious this is a witch hunt intended to scare career staff into silence.”

Cause of Action has a history of taking on the government over access to public records. For months, the group has battled agencies on transparency issues surrounding former Secretary of State and Democratic presidential candidate Hillary Clinton’s use of a private email server while at the State Department

The EPA did not respond to inquiries by publication time.