EPA Sued For Withholding Info On Employees Sending Encrypted Text Messages

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Michael Bastasch Contributor
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A public interest law firm sued the EPA for not turning over records regarding agency officials’ use of encrypted messaging applications.

The Cause of Action Institute (CoA) filed suit in the District Court for the District of Columbia Tuesday after the EPA failed to turn over any records to the group within the time limits specified under the Freedom of Information Act (FOIA).

“Career employees at the EPA appear to be using Signal to avoid transparency laws and vital oversight by the Executive Branch, Congress, and the public,” Henry Kerner, CoA’s assistant vice president, said in a statement. “Communications on this encrypted application, however, which relate to agency business must still be preserved under the Federal Records Act and be made available for disclosure under the FOIA.”

CoA filed a FOIA request with EPA in early February asking for records created by agency employees on the encryption application for smart phones, called Signal. CoA said the use of Signal may violate federal law requiring agencies to preserve all work-related communications.

The group’s FOIA request came after Politico reported about a dozen EPA employees were already “communicating incognito using the app Signal shortly after Trump’s inauguration” to “discuss what to do if Trump’s political appointees undermine their agency’s mission to protect public health and the environment, flout the law, or delete valuable scientific data that the agency has been collecting for years.”

Shortly after the news broke, The Daily Caller News Foundation asked legal experts, including CoA, if it was legal for federal workers to use Signal to discuss work-related matters.

Signal allows users to send encrypted messages that are difficult to hack or monitor. Federal law requires employees to preserve all work-related records, even those sent on encryption apps.

Failure to turn those communications over to the government violates the law, according to legal experts — not the use of encryption apps themselves. Though using Signal would make it difficult to know what a federal employee was communicating.

“Taxpayers have a right to know if the EPA’s leadership is meeting its record preservation obligations,” Kerner said.

Capitol Hill has gotten involved in the matter. Republican lawmakers on the House Committee on Science, Space and Technology asked EPA’s inspector general to look into the matter.

“Reportedly, this group of career officials at the EPA are aiming to spread their goals covertly to avoid federal records requirements, while also aiming to circumvent the government’s ability to monitor their communications,” Reps. Lamar Smith of Texas and Darin LaHood of Illinois wrote in their letter to EPA’s IG.

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