Working to Uncover Covert Activity at the EPA

A second lawsuit has been filed against the EPA seeking information about covert activity by agency employees.

Why the EPA?

The Environmental Protection Agency (EPA) has been an agency cited as having employees with bad morale and engaging in activity designed to thwart the Trump administration from initiating new priorities contrary to the ones followed during the Obama administration.

The agency’s budget has been slashed in a budget proposal for fiscal year 2018. Some EPA employees are likely to be transferred, lose their jobs, or take an employee buyout as a result of changes at the agency. And, not surprisingly, some EPA employees preferred the policies under the Obama administration to those that are leading to reductions in spending and staff at the agency.

EPA employees were openly campaigning to prevent Scott Pruitt from becoming the new agency head. The EPA is described in one article as “the heartland of the deep state.”

A member of the temporary political team leading the Environmental Protection Agency (EPA) for the Trump administration resigned less than two months after Inauguration Day. While he had worked at the EPA previously for a number of years, he noted he had been working 10- to 12-hour days and felt it was time to retire including the fact that some agency employees were working to undermine President Trump’s agenda.

“I just wasn’t in a position to achieve much anymore,” he told The Hill.

The article also noted, “[T]he vast majority of career staff at the EPA…are dedicated public servants, but there are a small handful ‘who were definitely were antagonistic’ to Trump and Administrator Scott Pruitt.”

Seeking Information from the EPA

An organization called “Cause of Action” has been aggressively seeking more information regarding the activities of agency employees.  The organization has filed two Freedom of Information Act requests and previously filed a lawsuit to compel the agency to respond to the FOIA request.

Specifically, the organization has been trying to uncover the validity of reports that EPA employees were using an encrypted messaging application to discuss how to prevent incoming political appointees from implementing policies of the Trump administration. These employees, as well as some employees in other agencies such as the Department of State, were reportedly forming a dissent network to prevent policy changes and to preserve the “integrity” of “objective” scientific data collected by the agency.

EPA Employees Using An Encrypted Program to Avoid Legal Obligations?

Cause of Action writes it was concerned that the encrypted program, known as “Signal,” may “have been used to conceal internal agency communications from oversight and that the EPA had failed to meet its legal obligations under the Freedom of Information Act (“FOIA”) and the Federal Records Act (“FRA”) to preserve records of official government business created or obtained on Signal.”

Second Lawsuit Filed Against EPA

Cause of Action has now filed a second lawsuit against the EPA for “failing to disclose records about an ongoing investigation into agency employees’ use of an encrypted messaging application, called ‘Signal'”. The records they are seeking, which were the subject of two FOIA requests, include a special report, requested by the EPA Office of Inspector General, from an agency contractor.

The report allegedly identifies the mobile applications running on most EPA-furnished devices, as well as documents concerning the agency’s attempts to address improper actions, including avoiding federal records management laws.

Result of FOIA Requests and First Lawsuit

In response to the organization’s first FOIA lawsuit, the EPA acknowledged that there was an “open law enforcement” investigation. As a result of the investigation, the agency initially withheld a number of records under provisions of the FOIA. The EPA eventually changed its position on this matter and released a number of partially-redacted records.

The EPA’s Office of Inspector General opened its official investigation into the use of the Signal app after a Washington Times report on the use of the FOIA to obtain records. Assistant Inspector General Patrick Sullivan noted:

If the allegations noted in the story are correct, it appears that some EPA employees are engaged in potential serious misconduct in two areas:

1: Using unauthorized encryption apps on their EPA devices in violation of law and EPA policy; and

2) (b)(5) deliberative policy (remainder redacted)

Politics and a Federal Career

Many, probably most, Americans have their own political ideology and political preferences. Federal employees are unique in that many have an opportunity to work in an agency that aligns with their personal social or political preferences. But, as many have noted, elections have consequences.

Some agencies may have a number of employees that disagree with the results of the election and policies that are being implemented or are likely to be implemented in their organization. While the investigations and lawsuits probably have a long way to go, employees who do take actions to pursue their personal political agenda but are considered illegal could end up facing criminal charges as well as losing a job as a federal employee with good benefits and a regular paycheck.

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