The Environmental Protection Agency (EPA) has one or more open law enforcement investigations into employees using encrypted text messages to coordinate their resistance to the Trump administration.
EPA's Office of General Counsel sent a letter to Cause of Action Institute (CoA), a public interest law firm, to notify them that records regarding employees using the encryption app, Signal, and the agency's efforts to retrieve those records were "part of one or more open law enforcement files."
CoA filed suit against EPA on Monday for not handing over records on employees using Signal as part of a Freedom of Information Act (FOIA) request sent in February.
EPA lawyers argue records on Signal are exempt from FOIA because they were compiled for "law enforcement purposes," meaning their disclosure "could reasonably be expected to interfere with ongoing enforcement proceedings."
EPA also told CoA they could find no records of the agency giving employees "permission, clearance, or approval" to encrypted messaging applications.
"The EPA's response to our lawsuit is unsurprising, but still deeply disturbing," Henry Kerner, CoA's assistant vice president, said in an emailed statement.
"The unauthorized use of an encrypted messaging app by a government employee is inappropriate, and the EPA appears to agree that its employees might have broken the law," Kerner said.
Republican lawmakers on the House Committee on Science, Space and Technology asked EPA's inspector general to look into the matter in February. This could be the open investigation EPA is referring to.
CoA FOIAed EPA after Politico reported about a dozen EPA employees were "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."
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. EPA employees could be breaking the law by using Signal to hide such records. The use of encryption apps themselves does not seem to be illegal.
"Although we are pleased to learn that the agency is examining potential wrongdoing, we will continue to fight for the disclosure of records responsive to our FOIA request because we do not agree that the law prohibits the disclosure of the Signal messages," Kerner said.
EPA did not immediately respond to TheDCNF's request for comment.
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