Legal Loophole Lets Feds Delete Tons Of Official Records

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A loophole in federal law allows Environmental Protection Agency (EPA) employees and other federal workers get away with deleting millions of official records created using cellphone text messaging, according to government transparency experts.

The Federal Records Act (FRA) and EPA policy allow individual employees who create and receive cell phone text messages to decide whether a particular one constitutes a federal record before deleting or preserving it.

That makes it difficult to say EPA employees violated FRA when they archive only 86 out of 3.1 million text messages as official business documents sent and received in 2015.

That’s “clearly a conflict of interest,” said Chaim Mandelbaum, counsel for the non-profit government watchdog Energy and Environment Legal Group. Mandelbaum’s group focuses on transparency and accountability issues in the federal government.

“My feeling is that it’s far more likely (than not) that the law was circumvented — it’s just impossible to prove because you lack the evidence,” Mandelbaum, who has worked on legal cases involving the EPA’s records retention issues, told The Daily Caller News Foundation (TheDCNF).

“The idea that there were no federal records destroyed seems very questionable to me,” Mandelbaum added.

Mandelbaum and other federal records and transparency experts say it’s naive to believe EPA officials followed federal laws and policies and lost no vital information by properly preserving so few texts and allowing senior EPA officials to configure phones to automatically delete texts after 30 days. Those were the findings in a Wednesday EPA Office of Inspector General (IG) report, which claimed no officials “intentionally” circumvented federal law in failing to archive millions of records.

But the EPA’s “staggeringly” low number of preserved texts presents another problem, said James Valvo, senior policy adviser for nonprofit watchdog Cause of Action Institute (CofA). CofA is a frequent Freedom of Information Act (FOIA) filer. If employees are chronically using government-issued phones to conduct personal business, that’s a misuse of federal property, says Valvo.

“These are not people’s personal phones,” Valvo told TheDCNF. So, if people are sending 3 million personal texts on government phones, “that’s a problem.”

The National Archives and Records Administration (NARA), which is responsible for implementing the FRA, says that “electronic messages created or received in the course of agency business are federal records.” EPA policy says that employees who generate and receive records are legally required to maintain them, and any substantive or “non-transitory” communications — messages that are still relevant after 180 days — should be transferred to an electronic records management system, as the IG noted in its report. That system includes texts.

“In February 2015, the EPA updated its records management policy, which details the agency’s requirements for handling electronic messages — such as text messages — as electronic records,” the IG report said.

“The policy states that EPA staff that generate and receive records are legally required to maintain them, and the policy further requires electronic records — such as substantive or non-transitory text messages — to be transferred to an electronic records management system,” the report said.

But that doesn’t stop an employee from deleting texts at his own discretion, Mandelbaum said.

“Generally, truly transitory records aren’t required to be preserved, but the problem all too often is that the line there is fuzzy and the decision-making is given over to the people whose interest in transparency is the least,” Mandelbaum said.

That of course creates a problem for FOIA requesters, said Patrice McDermott, executive director of OpenTheGovernment.org.

“We are concerned with any practices for records retention that allow employee discretion in deciding what is deleted,” McDermott told TheDCNF.

McDermott said communicating via cell phone text messages inherently creates problems for accessing public records. (RELATED: EPA Will Take 100 Years To Answer Conservative Group’s FOIA Request)

“The problems encountered with enforcing the rules on electronic means of communicating when doing the business of government are similar to those when government officials rely on the phone instead of putting anything in writing,” McDermott said.

“It could be inattention or evasion … and the risks are multiplied when officials use their personal devices rather than agency-supplied and locked ones,” she said.

Valvo compared the discretion EPA employees have with texts to former Secretary of State Hillary Clinton’s discretion in deciding which emails to turn over to federal investigators during the scandal involving the private server she used while conducting official business.

The Clinton scandal was complicated by the presence of multiple classified documents, the handling of which is covered by additional laws and regulations.

The IG stood by its report, saying it “did not find evidence” of wrongdoing.

“The OIG did not find evidence that the senior official violated any federal laws and was not able to determine whether any senior official broke any laws,” Jeffrey Lagda, spokesman for the IG, told TheDCNF.

Mandelbaum said the IG is skirting the issue by saying employees did not “intentionally” violate federal law.

“I think that’s just skirting the issue and that’s exactly the problem, because federal employees are supposed to be thoroughly educated on public records laws,” Mandelbaum said. 

Valva expressed concerns over the IG’s use of texting, too.

The IG report found the IG office sent or received more than 70,000 texts in that same period.

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