Government hypocrisy was on full display recently when the Securities and Exchange Commission fined 16 Wall Street firms more than $1.1 billion for violating federal record-keeping requirements. The firms’ “employees routinely communicated about business matters using text messaging applications on their personal devices,” but their employers failed to keep an official record of a “substantial majority of these off-channel communications.”
The SEC says this “likely deprived” the agency of those messages in “various” investigations. SEC enforcement director
declared that these recent fines “underscore the importance of recordkeeping requirements: they’re sacrosanct.”
But based on my experience in a half-dozen currently active lawsuits involving records requests to federal agencies, including the SEC, political appointees and other federal regulators regularly engage in the same sort of practices. Regulators are bound by requirements similar to those covering banks and traders, thanks to laws such as the Freedom of Information Act and the Federal Records Act. My FOIA clients seek particular “non-email electronic communications,” which is what the SEC calls messages on non-email platforms, including texts, encrypted messages on Signal or WhatsApp, or even logs of typed chats in Teams or Zoom.
Based on my FOIA cases, it appears that officials in the Biden White House, SEC and Federal Energy Regulatory Commission use chats extensively, arguably as an alternative to “.gov” email accounts. Evidence strongly suggests these are going unsearched in response to many requests for correspondence—unless the requester knows to seek them specifically. The same is true for the use of private phones and encrypted apps. Unless they’re specifically listed in a request, it seems that they often won’t be included.
If it’s as bad as it appears, this would be a serious issue. As the Supreme Court has often noted, FOIA gives U.S. citizens a right “to know ‘what their Government is up to.’ ” Agencies’ insufficient record-keeping frustrates the ability of FOIA requesters, Congress, and even regulated parties to defend themselves when targeted by the government.
Under President Biden, officials at FERC seem to use texts from personal phones to conduct work, according to phone bills, texts pried from the FERC from officials’ personal and work phones, and other records. Some seem to use only their personal phones to conduct business over text. This appears to include Chairman
according to texts he turned over to the FERC in response to my client’s requests. FERC appointees and even White House officials text Mr. Glick on his personal device, based on the same texts.
This says a lot about current officials’ insouciant approach to custodianship of official correspondence. Using a personal email, messaging app, or phone to text usually means the content is kept out of the hands of an official’s agency unless, contrary to my experience with FOIA, the official forwards all such messages to his agency for record-keeping. This likely shields those communications from being released to FOIA requesters or even Congress unless it becomes public that an official is using a personal device or account for work correspondence. Then a requester would know to ask specifically for that content. My clients discovered the use of Signal, WhatsApp and personal-phone texting among government officials only through persistent digging using FOIA and information in the public domain.
The FERC and the SEC have also refused to produce texts and chats to my clients on the grounds that the regulators must defer to the White House on what should and shouldn’t be released. This is particularly curious because these agencies are independent commissions, in whose decision making one would think the White House would have no formal role.
Both agencies also refuse to produce to my clients hundreds of “chat” correspondences that officials have admitted they sent during Teams or Zoom meetings because the meetings were hosted by outside parties, either the White House or environmentalist activist groups. As such, the regulators say, they have no way to produce the correspondence because someone else controls it. This looks like a real tell for how little these agencies think of their transparency obligations. Whether correspondence is an agency record doesn’t depend on who hosts a Zoom meeting, but on whether the messages were received or sent by agency officials.
With this attitude in mind, it seems notable that so many government officials have personal accounts on the same encrypted messaging app as others in their agency. It isn’t difficult to identify officials’ personal email accounts and cellphone numbers, the latter of which reveals if they have accounts on apps such as Signal or WhatsApp. From this I know that at least a couple of Biden White House “climate” officials, four current SEC appointees and one recently departed SEC commissioner have personal Signal accounts. FERC appointees seem to prefer WhatsApp—at least five have personal accounts. Mr. Glick, at least, seems not to have Signal or WhatsApp.
These could be coincidences, and officials may never have sent personal, encrypted messages about work. We seek to find out more, given the commonality in their app choices as well as the White House and these agencies’ evinced disregard for record-keeping law. While it’s possible to use phone bills and other evidence to piece together a picture of regular texting activity by government officials, using Signal or WhatsApp not only leaves the officials the sole custodians of these records but suggests an intent to keep them that way. After all, unless officials go to the trouble of printing and turning over hard copies, forwarding a Signal message to an official’s agency—as the law requires—defeats the purpose of choosing an encrypted app. The message is then insecure.
It was a seminal revelation when I uncovered in 2012 that Obama Environmental Protection Agency Administrator
used an email under the false identity “Richard Windsor” for EPA-related correspondence. Litigation also revealed that she used a separate non-official account for work. But since then, not enough has been done to hold government officials accountable. Biden officials seem to make wide use of what the SEC calls “non-email electronic communications” for work without keeping an official record. Yet federal employees appear much less likely than Wall Street firms to suffer serious consequences for those mediums’ misuse.
From what I’ve seen, a reckoning is in order. Congress has an important oversight role to play as do the courts. It is past time for us to guard our guardians. Investors have rights, but taxpayers do, too.
Mr. Horner is an attorney in Washington.
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