Hours after filing a lawsuit demanding that the Environmental Protection Agency (“EPA”) disclose records about its employees’ use of an encrypted messaging application, Cause of Action Institute (“CoA Institute”) received a letter from the EPA’s Office of General Counsel acknowledging that there is an “open law enforcement” investigation looking into the matter.

The EPA indicated 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 such 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.”  Further, the EPA stated that it could not find any records reflecting “permission, clearance, or approval” for the use of the encrypted messaging app.

Cause of Action Institute Assistant Vice President Henry Kerner: “The EPA’s response to our lawsuit is unsurprising, but still deeply disturbing.  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.  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.  It will be up to the courts to decide.”

Even though the EPA purports to have provided a final response to CoA Institute’s FOIA request, the recently filed lawsuit will continue. 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).

The EPA’s letter can be found here