Carper Seeks Information from 24 Inspectors General on Agencies’ Compliance with Federal Recordkeeping Laws and Responsiveness to Congressional Oversight Requests

WASHINGTON—U.S. Senator Tom Carper (D-Del.), a senior member of the Homeland Security and Governmental Affairs Committee, and Ranking Member Claire McCaskill (D-Mo.) sent letters to 24 Inspectors General (IG) requesting reviews of agencies’ compliance with and processes for preserving certain electronic records as federal records, and responding to requests from members of Congress.

“Although NARA has confirmed that the capture of electronic messages creates unique challenges throughout government, various public reports raise questions about whether Trump Administration officials are intentionally skirting compliance with federal record keeping requirements,” Senators Carper and McCaskill wrote, citing reports that White House staffers are using an encryption app that deletes messages once they have been opened. “Use by federal employees of private messenger applications, such as Confide, to conduct official business flies in the face of federal recordkeeping laws and the principles of government transparency.”

“Reports that Trump Administration officials have used practices that undermine transparency of public records are also unfortunately consistent with this Administration’s problematic pattern of delaying or ignoring requests from minority Members of Congress,” Senators Carper and McCaskill continued. “While it might be reasonable to attribute some delay in responding to Congressional requests to the presidential transition process, recent reports suggest that the Trump Administration’s lack of transparency and responsiveness may be by design.”

The senators requested each of the 24 IGs conduct a review and provide a written response by July 6, 2017 of their respective agencies’ compliance with federal laws governing records retention, compliance with Congressional requests and federal recordkeeping requirements for electronic messages. The requests were made to the Offices of the Inspector General for each federal agency covered by the Chief Financial Officers Act of 1990.

The template language for the letters can be found below.

June 8, 2017 

[NAME]

[TITLE]

[AGENCY NAME]

[ADDRESS]

[ADDRESS]

 

Dear [TITLE + NAME]:

 

            We write today to request that the Office of the Inspector General (OIG) conduct a review of the [AGENCY NAME] processes and compliance with applicable legal standards for preserving certain electronic records as federal records, and cooperation with Congressional document requests.

 

Preservation of Electronic Records

 

In 2014, Congress amended the Presidential Records Act and the Federal Records Act (FRA)regarding the preservation, storage, and management of federal records. The National Archives and Records Administration (NARA) also provided federal agencies with specific guidance on how to comply with federal law regarding the preservation of electronic messages in Bulletin 2015-02, “Guidance on Managing Electronic Records”.^[1]  Pursuant to 44 U.S.C. § 2911, agencies have additional requirements to manage records created or received in nonofficial and personal electronic messaging accounts.^[2]  NARA plays an essential role in preserving our history as the nation’s federal record-keeper, and the Archivist of the United States, as head of NARA, has final authority on how agencies must preserve electronic records as federal records.^[3]  NARA recently surveyed the FRA compliance of federal agencies, and noted that many agencies “reported having difficulty identifying electronic messages that are records.” ^[4] 

 

Although NARA has confirmed that the capture of electronic messages creates unique challenges throughout government, various public reports raise questions about whether Trump Administration officials are intentionally skirting compliance with federal record keeping requirements.  For example, The Independent recently reported that White House staffers are using a “confidential messenger” app called “Confide” that deletes messages once they have been opened, leaving no record of them or their content thereafter.^[5]   Confide messages cannot be printed or archived and the company indicates that “Even we at Confide cannot decrypt or see any messages.” ^[6]  The app allows users to transmit text messages, photos, documents, and voice messages, and provides two forms of screenshot protection, which prevents recipients of an image from taking a screenshot of it.  Use by federal employees of private messenger applications, such as Confide, to conduct official business flies in the face of federal recordkeeping laws and the principles of government transparency.

 

In response to these reports, on March 7, 2017, we wrote to the Archivist of the United States seeking information regarding any guidance NARA has provided to Trump Administration officials, as well as the Trump Administration’s compliance with records preservation laws.^[7]  Archivist David Ferriero provided a detailed response to our letter and included copies of Presidential Records Act (PRA) guidance provided by NARA to the Office of the White House Counsel in a February 2, 2017 briefing on PRA compliance.^[8]  According to the Archivist’s response letter, NARA was not in a position to answer our questions regarding whether officials at federal agencies used any smartphone apps, such as Confide, for work-related communications, or whether any government official at federal agencies have been instructed to avoid using email as a method of work-related communication. 

 

Following the transmittal of our letter to Archivist Ferriero, NARA issued a memo on March 15, 2017, “to all Senior Agency Officials for Records Management that addresses, among other things, ‘Electronic Messaging and Encrypted Messages.’”^[9]  Archivist Ferriero’s memo reiterates that “agencies are responsible for properly managing electronic messages that are Federal records whether they are SMS texts, encrypted communications, direct messages on social media platforms, email or created on any other type of electronic messaging system or account.”^[10]  The Archivist’s memo also addressed the recent “news stories referring to the possible use by government employees of non-official, commercial communication applications such as WhatsApp, Signal, Confide, and others that support encryption or the ability to automatically delete messages after they are read or sent.” ^[11]  Archivist Ferriero advised federal agencies that:

 

Any use of such communication applications requires coordination with your legal counsel and records management officials to ensure compliance with the Federal Records Act and related regulations.  Agencies are responsible for setting policies that govern the use of these applications prior to their deployment and must take steps to manage and preserve records created through their use for as long as required.^[12]

 

Cooperation with Congressional Requests

 

Reports that Trump Administration officials have used practices that undermine transparency of public records are also unfortunately consistent with this Administration’s problematic pattern of delaying or ignoring requests from minority Members of Congress.  For example, on March 15, 2017, Senate Democrats released a list of more than 100 oversight request letters that Trump Administration officials had not answered.^[13]  Among those unanswered requests was a letter we sent to Donald McGahn, Counsel to the President, regarding White House officials’ use of private email accounts.^[14]  The list also included outstanding requests to a range of Trump Administration officials at various federal agencies, including Attorney General Sessions, Secretary of State Tillerson, Environmental Protection Agency Administrator Pruitt, Secretary of Defense Mattis, and Secretary of Commerce Ross, among others.

 

While it might be reasonable to attribute some delay in responding to Congressional requests to the presidential transition process, recent reports suggest that the Trump Administration’s lack of transparency and responsiveness may be by design.  For example, a January 20, 2017, memo from the Acting Secretary of Health and Human Services (HHS) to agency staff prohibit the dissemination of any “correspondence to public officials (e.g., Members of Congress, Governors) or containing interpretation or statements of Department regulations or policy, unless specifically authorized by me [the Acting Secretary]” or a designee.^[15]  Most recently, Senator Carper noted, regarding GSA’s lack of responsiveness to congressional requests for information on the Trump Organization’s lease with the General Services Administration (GSA) to redevelop and manage the Old Post Office building, that, effective January 20, 2017, the Trump Administration appeared to have changed GSA’s “long-standing practice of providing certain documents requested by minority members of congress, including the ranking member of the committee of jurisdiction with direct oversight.”^[16]  During a recent bipartisan briefing with GSA, “agency personnel stated that its new practice only assures that [requested] documents will be provided to the committee’s chairman.” ^[17]  Additionally, Politico recently reported that during meetings this spring with senior officials for various federal agencies, a Deputy Counsel and Special Assistant to the President, “told agencies not to cooperate” with congressional oversight requests from Democrats.^[18]  These newly-implemented policies are deeply troubling and may also run afoul of several laws that prohibit interference with federal employees’ ability to communicate with Congress, including, but not limited to the Whistleblower Protection Enhancement Act, Section 713 of the Consolidated Appropriations Act of 2016, as well as 5 U.S.C.§ 7211.

 

In order to better understand the [DEPARTMENT/AGENCY/ADMINISTRATION] compliance with federal laws governing records retention and compliance with Congressional requests and federal recordkeeping requirements for electronic messages, we ask that you conduct a review and provide a written response not later than July 6, 2017, which addresses the following questions:

 

1.      Since January 20, 2017, has any [DEPARTMENT/AGENCY/ADMINISTRATION]  official directed or advised any agency employee to delay or withhold a response to a Congressional request for information?  If any such directive is in writing, please provide a copy.

 

2.      Since January 20, 2017, has any [DEPARTMENT/AGENCY/ADMINISTRATION]  official directed or advised any agency employee or Congressional staff member that the agency will only provide requested documents or information to a Committee chair?  If any such directive is in writing, please provide a copy.

 

3.      Since January 20, 2017, has the [DEPARTMENT/AGENCY/ADMINISTRATION]  issued any guidance related to the use of smartphone applications that support encryption or the ability to automatically delete messages after they are read or sent for work related communications? 

 

4.      Since January 20, 2017, has any [DEPARTMENT/AGENCY/ADMINISTRATION]  official used, for work-related communications, a smartphone app, including, but not limited to, WhatsApp, Signal, Confide, and others that support encryption or the ability to automatically delete messages after they are read or sent? 

 

5.      Since January 20, 2017, has any [DEPARTMENT/AGENCY/ADMINISTRATION] official failed to abide by federal law and/or NARA or Departmental guidance regarding preservation of electronic records related to official business, including, but not limited to, text messages, chats, instant messages, social media messages, or emails created on non-government accounts?

 

6.      Has the OIG previously provided recommendations to the[DEPARTMENT/AGENCY/ADMINISTRATION] regarding its management of the preservation of electronic records and compliance with Congressional document requests?  If so, please provide a list of any OIG recommendations that remain outstanding. 

 

If you or members of your staff have any questions about this request, please feel free to ask your staff to contact —— ——- with Ranking Member McCaskill’s office at 202-224-2627 or ——- ——- with Senator Carper’s office at 202-224-2441. Please send any official correspondence relating to this request to ———————. Thank you very much for your attention to this matter.

 

 

                                                Sincerely,

 

 

 

 

 

 

Claire McCaskill                                                         Tom Carper

Ranking Member                                                        United States Senator

 

 

cc:        The Honorable Ron Johnson

            Chairman

 

^[1] U.S. National Archives and Records Administration, Electronic Messages White Paper (Aug. 2016) (online at https://www.archives.gov/files/records-mgmt/resources/emessageswp.pdf).

^[2] 44 U.S.C. § 2911.

^[3] Presidential and Federal Records Act Amendments of 2014, Pub. L. No. 113-187, 128 Stat. 2203. 

^[4] U.S. National Archives and Records Administration, Electronic Messages White Paper (Aug. 2016) (online at https://www.archives.gov/files/records-mgmt/resources/emessageswp.pdf).

^[5] Donald Trump’s White House Staff ‘Communicate Through App Which Automatically Deletes Messages’, The Independent (Feb. 15, 2017) (online at http://www.independent.co.uk/news/world/americas/us-politics/donald-trump-white-house-staff-confide-communicate-app-auto-delete-messages-leaks-russia-us-a7581046.html).

^[6] Frequently Asked Questions, Confide (online https://getconfide.com/faq) (accessed on Feb. 17, 2017).

^[7] Letter from Sen. Claire McCaskill, Ranking Member, Senate Committee on Homeland Security and Governmental Affairs and Sen. Tom Carper to David Ferriero, Archivist of the United States (Mar. 7, 2017).

^[8] Letter from David Ferriero, Archivist of the United States to Sen. Claire McCaskill, Ranking Member, Senate Committee on Homeland Security and Governmental Affairs and Sen. Tom Carper (Mar. 30, 2017).

^[9] Id.

^[10] Memorandum from David Ferriero, Archivist of the United States to Senior Agency Officials for Records Management re: Records Management Priorities for 2017 (March 15, 2017).

^[11] Id.

^[12] Id.

^[13] Sen. Sheldon Whitehouse, Senate Democrats Release List of Over 100 Oversight Letters President Trump Refuses to Answer (Mar. 15, 2017) (online at https://www.whitehouse.senate.gov/news/release/senate-democrats-release-list-of-over-100-oversight-letters-president-trump-refuses-to-answer).

^[14] Id.

^[15] Memorandum from Acting Secretary, U.S. Department of Health and Human Services to HHS OPDIVHeads and StaffDiv Heads (Jan. 20, 2017).

^[16] Senator Tom Carper, Carper Statement on Trump Hotel Lease (Mar. 31, 2017) (online at https://www.carper.senate.gov/public/index.cfm/pressreleases?ID=77B68657-FD23-4902-9A64-AE1314F64EAF).

^[17] Id.

^[18] White House Orders Agencies to Ignore Democrats’ Oversight Requests, Politico (June 2, 2017) (online http://www.politico.com/story/2017/06/02/federal-agencies-oversight-requests-democrats-white-house-239034).