Another FOIA Lawsuit for the EPA

Two lawsuits are now pending involving issues surrounding the “Deep State” and EPA employees.

The term “Deep State” refers to a coordinated effort by career government employees to influence the federal government’s policies without regard to the policies of democratically elected leadership.

“Deep State” and the EPA

The “deep state” term has been a leader in news articles in recent months. A search using the Google search engine provides more than 43 million results. There are even books now out written about the term such as one entitled The Deep State: The Fall of the Constitution and the Rise of a Shadow Government.

The gist of this belief is that entrenched interests in the federal government dictate the decisions of the American government with regard to defense, trade policies and priorities with little regard for the interests or desires of the American people as expressed in election results.

The Environmental Protection Agency (EPA) has been the focal point for some actions by federal employees that typify the belief a deep state exists within the federal bureaucracy. The agency is cited as one with employees with low morale and engaging in activity to derail implementing Trump administration policies and priorities.

There is no doubt the agency’s budget has been slashed in a recent budget proposal for fiscal year 2018. Some EPA employees would inevitably be transferred or lose their jobs as a result if the budget proposal is enacted.

The EPA is described in one article as “the heartland of the deep state.”

Judicial Watch and the EPA

Judicial Watch is known as a group that seeks to provide more transparency in actions by the federal government. In recent years, it has garnered considerable publicity seeking emails from Hillary Clinton’s private email server. It has also been relentless in pursuing information about efforts by the Internal Revenue Service to target conservative groups.

Judicial Watch is now focusing on the Environmental Protection Agency. The organization filed a Freedom of Information Act (FOIA) request  for communications sent or received by EPA employees who may have used the cell phone encryption application known as  “Signal” in order to hide covert actions.

When no answer was received from the agency, a lawsuit was filed in the U.S. District Court for the District of Columbia (Judicial Watch v. Environmental Protection Agency (No. 1:17-cv-00533)).

The lawsuit cites an article in Politico entitled Federal workers turn to encryption to thwart Trump. According to that article:

At the EPA, a small group of career employees — numbering less than a dozen so far — are using an encrypted messaging app 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, sources told POLITICO.

Fearing for their jobs, the employees began communicating incognito using the app Signal shortly after Trump’s inauguration. Signal, like WhatsApp and other mobile phone software, encrypts all communications, making it more difficult for hackers to gain access to them.

According to Judicial Watch president Tom Fitton:

This new lawsuit could expose how the anti-Trump ‘deep state’ embedded in EPA is working to undermine the rule of law,” said Judicial Watch President Tom Fitton. “Let’s hope the Trump administration enforces FOIA and turns over these records. Given EPA’s checkered history on records retention and transparency, it is disturbing to see reports that career civil servants and appointed officials may now be attempting to use high-tech blocking devices to circumvent the Federal Records Act and the Freedom of Information Act altogether.

Previous FOIA Denial and Pending Lawsuit

A similar lawsuit was filed earlier by another group, the Cause of Action law firm, on February 22nd. That firm said in a written statement that within hours after filing a lawsuit on the use of an encrypted messaging program by employees (Signal), the EPA responded to the FOIA request.

In its response in that case, EPA denied the request for information under the FOIA and stated that records created or received by its employees on “Signal,” and records concerning efforts “to retrieve, recover, or retain” those messages, were “part of one or more open law enforcement file(s).”

The agency claimed the records were exempt from disclosure under the Freedom of Information Act (“FOIA”) because they were compiled for “law enforcement purposes” and their disclosure “could reasonably be expected to interfere with ongoing enforcement proceedings.”

What Happens Next?

Judicial Watch states in its lawsuit that “On February 3, 2017, Plaintiff submitted a FOIA request to Defendant, by certified mail….” It contends the agency “is violating FOIA by failing to search for and produce all records responsive to Plaintiff’s request or demonstrate that the requested records are lawfully exempt from production.” And, since the agency “failed to determine whether to comply with Plaintiff’s request within the time period required by FOIA, Plaintiff is deemed to have exhausted its administrative appeal remedies.”

According to Jill Farrell, a spokesperson for Judicial Watch, if a response had been received, the lawsuit would not have been filed. Presumably, the lawsuit may have been filed later if it had been denied.

It is not clear why a response was provided from the agency in the Cause of Action law firm case but not in the Judicial Watch case. In any event, it appears there are two lawsuits filed against the EPA with the same underlying issue. While the initial requests for information are very similar, the lawsuits are different because of how the agency has responded (or did not respond in one case).

According to the Cause of Action organization, “CoA Institute disputes the sufficiency of the EPA’s determination, which suggests that a search for potentially responsive records was never carried out. In addition, we disagree with the agency’s reliance on FOIA Exemption 7(a).”

Judicial Watch is seeking in its lawsuit that the court “order Defendant to search for any and all records responsive to Plaintiff’s FOIA request and demonstrate that it employed search methods reasonably calculated to uncover all records responsive to the request….”

Ultimately, the result will probably be the same. The agency will receive a court decision requiring that records be released or the agency’s action in denying the release will be upheld if the court concludes that there is a legitimate exemption.

Impact on Federal Employees

Federal employees are protected by the Hatch Act. They also have protection from retaliation by an agency is a person releasing information is a legitimate whistleblower. (See Hatch Act Protects Freedom of Political Speech on Social Media… to a Point and Don’t Let the Hatch Act Destroy Your Federal Career)

We do not know what federal employees were discussing while using an encryption application to disguise their covert activities. Presumably, there were substantial reasons for not wanting the agency to know what they were doing or when they were doing it. We do not know if their actions will lead to losing a federal job or prosecution. We do not know if those using the Signal app were violating legitimate, direct orders or if their actions were legal.

If investigations are able to determine this type of information, we may be learning how the federal human resources system and legal system will deal with how the civil service will respond to our rapidly changing technology.

About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources. Follow Ralph on Twitter: @RalphSmith47