A FOIA Request on EPA Employees in “The Resistance” Gets an Amazing Response From the Government

The EPA is one of a handful of agencies in which current and former employees have boasted about becoming part a Resistance to the Trump administration. Presumably, this means they seek to obstruct the administration’s agenda but, never fear because they are all apolitical civil servants and any form of considering a “deep state” brands one a conspiracy theorist.

Allegedly these apolitical civil servants were using a messaging encryption app to plot thwarting History’s Greatest Monster^TM. And their boasting about their secret plot had caused some attention:

House Science, Space and Technology Committee leaders are pushing the Environmental Protection Agency to crack down employees reportedly using encrypted chat apps to circumvent agency rules and public records laws.

Chairman Lamar Smith (R-Texas) and oversight subcommittee Chairman Darin LaHood (R-Ill.) sent a letter to EPA Inspector General Arthur Elkins on Tuesday asking him to investigate “a group of approximately a dozen career EPA officials … using an encrypted messaging application, Signal, to discuss potential strategies against any attempts by newly appointed political officials to redirect the EPA’s priorities.”

Smith was relying on a Politico story, and so were other people:

Citing POLITICO’s story, the Cause of Action Institute, a right-leaning watchdog group, filed a request under the Freedom of Information Act this month seeking EPA employees’ communications using Signal. “The bottom line is: An encrypted app is basically a way to avoid transparency,” Institute Assistant Vice President Henry Kerner said in an interview.

It’s not just encryption that is raising eyebrows. Republican research firm America Rising filed a FOIA request this month seeking all emails sent by John O’Grady, a top union official at the EPA, that “mentions or refers to President Trump.”

The FOIA request came in response to O’Grady’s comments to The Washington Post that Trump’s decision to firing then-acting Attorney General Sally Yates “sends kind of a chilling effect” through agencies. O’Grady did not respond to a request for comment.

“The public is entitled to know whether career federal government employees are engaged in partisan politics on the taxpayers’ dime,” said Allan Blutstein, vice president of FOIA operations at America Rising.

EPA employees said they are not using Signal for official government business, and they raised concerns that they’re being targeted because they are critical of Trump.

“I don’t think anybody can dictate which apps we use on our personal time, for personal conversations,” one EPA employee told POLITICO.

Cause Of Action Institute has received a partial response from EPA and it definitely isn’t what they’d expected:

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.

This is strange. An inquiry by an agency IG into not maintaining federal records is not going to pass the smell test for a FOIA exemption for a law enforcement investigation. The worst outcome, if the allegation as described in Politico panned out, would be a reprimand and maybe a short suspension. It is not plausibly covered by the law enforcement investigation exemption. Either something significant is going on in EPA and this investigation has uncovered more than Resistance (there is the reference to a union officer, so fraud is always a very real possibility) or EPA is up to its old game of lying to get out of responding to FOIA requests.

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