[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
DESTRUCTION OF RECORDS AT EPA:
WHEN RECORDS MUST BE KEPT
=======================================================================
JOINT HEARING
BEFORE THE
SUBCOMMITTEE ON OVERSIGHT &
SUBCOMMITTEE ON ENVIRONMENT
COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
MARCH 26, 2015
__________
Serial No. 114-13
__________
Printed for the use of the Committee on Science, Space, and Technology
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Available via the World Wide Web: http://science.house.gov
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COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY
HON. LAMAR S. SMITH, Texas, Chair
FRANK D. LUCAS, Oklahoma EDDIE BERNICE JOHNSON, Texas
F. JAMES SENSENBRENNER, JR., ZOE LOFGREN, California
Wisconsin DANIEL LIPINSKI, Illinois
DANA ROHRABACHER, California DONNA F. EDWARDS, Maryland
RANDY NEUGEBAUER, Texas FREDERICA S. WILSON, Florida
MICHAEL T. McCAUL, Texas SUZANNE BONAMICI, Oregon
STEVEN M. PALAZZO, Mississippi ERIC SWALWELL, California
MO BROOKS, Alabama ALAN GRAYSON, Florida
RANDY HULTGREN, Illinois AMI BERA, California
BILL POSEY, Florida ELIZABETH H. ESTY, Connecticut
THOMAS MASSIE, Kentucky MARC A. VEASEY, TEXAS
JIM BRIDENSTINE, Oklahoma KATHERINE M. CLARK, Massachusetts
RANDY K. WEBER, Texas DON S. BEYER, JR., Virginia
BILL JOHNSON, Ohio ED PERLMUTTER, Colorado
JOHN R. MOOLENAAR, Michigan PAUL TONKO, New York
STEVE KNIGHT, California MARK TAKANO, California
BRIAN BABIN, Texas BILL FOSTER, Illinois
BRUCE WESTERMAN, Arkansas
BARBARA COMSTOCK, Virginia
DAN NEWHOUSE, Washington
GARY PALMER, Alabama
BARRY LOUDERMILK, Georgia
------
Subcommittee on Oversight
HON. BARRY LOUDERMILK, Georgia, Chair
F. JAMES SENSENBRENNER, JR., DON BEYER, Virginia
Wisconsin ALAN GRAYSON, Florida
BILL POSEY, Florida ZOE LOFGREN, California
THOMAS MASSIE, Kentucky VACANT
JIM BRIDENSTINE, Oklahoma EDDIE BERNICE JOHNSON, Texas
BILL JOHNSON, Ohio
LAMAR S. SMITH, Texas
------
Subcommittee on Environment
HON. JIM BRIDENSTINE, Oklahoma, Chair
F. JAMES SENSENBRENNER, JR., SUZANNE BONAMICI, Oregon
Wisconsin DONNA F. EDWARDS, Maryland
RANDY NEUGEBAUER, Texas ALAN GRAYSON, Florida
RANDY WEBER, Texas AMI BERA, California
JOHN MOOLENAAR, Michigan DON S. BEYER, JR., Virginia
BRIAN BABIN, Texas VACANT
BRUCE WESTERMAN, Arkansas EDDIE BERNICE JOHNSON, Texas
DAN NEWHOUSE, Washington
GARY PALMER, Alabama
LAMAR S. SMITH, Texas
C O N T E N T S
March 26, 2015
Page
Witness List..................................................... 2
Hearing Charter.................................................. 3
Opening Statements
Statement by Representative Barry Loudermilk, Chairman,
Subcommittee on Oversight, Committee on Science, Space, and
Technology, U.S. House of Representatives...................... 6
Written Statement............................................ 7
Statement by Representative Donald S. Beyer, Jr, Ranking Minority
Member, Subcommittee on Oversight, Committee on Science, Space,
and Technology, U.S. House of Representatives.................. 8
Written Statement............................................ 9
Statement by Representative Jim Bridenstine, Chairman,
Subcommittee on Environment, Committee on Science, Space, and
Technology, U.S. House of Representatives...................... 11
Written Statement............................................ 12
Statement by Representative Suzanne Bonamici, Ranking Minority
Member, Subcommittee on Enviorment, Committee on Science,
Space, and Technology, U.S. House of Representatives........... 12
Written Statement............................................ 14
Statement by Representative Lamar S. Smith, Chairman, Committee
on Science, Space, and Technology, U.S. House of
Representatives................................................ 15
Written Statement............................................ 16
Statement by Representative Eddie Bernice Johnson, Ranking
Member, Committee on Science, Space, and Technology, U.S. House
of Representatives............................................. 17
Written Statement............................................ 18
Witnesses:
Mr. Paul M. Wester, Jr., Chief Records Officer, National Archives
and Records Administration
Oral Statement............................................... 19
Written Statement............................................ 22
Mr. Kevin Christensen, Assistant Inspector General for Audit,
Office of Inspector General, Environmental Protection Agency
Oral Statement............................................... 29
Written Statement............................................ 31
Dr. David Schnare, Former Sr. Attorney, EPA Office of Enforcement
and Compliance Assurance; Director, Free-Market Environmental
Law Clinic; Director, Center for Environmental Stewardship,
Thomas Jefferson Institute for Public Policy; General Counsel,
Energy & Environment Legal Institute
Oral Statement............................................... 38
Written Statement............................................ 40
Discussion....................................................... 50
Appendix I: Answers to Post-Hearing Questions
Mr. Paul M. Wester, Jr., Chief Records Officer, National Archives
and Records Administration..................................... 70
Mr. Kevin Christensen, Assistant Inspector General for Audit,
Office of Inspector General, Environmental Protection Agency... 80
Dr. David Schnare, Former Sr. Attorney, EPA Office of Enforcement
and Compliance Assurance; Director, Free-Market Environmental
Law Clinic; Director, Center for Environmental Stewardship,
Thomas Jefferson Institute for Public Policy; General Counsel,
Energy & Environment Legal Institute........................... 88
Appendix II: Additional Material for the Record
McCarthy text.................................................... 112
EPA Web Collaboration Tools...................................... 116
Senate EPW letter to EPA OIG re EPA OIG 2013 report.............. 119
EPA OIG 2013 report re EPAs Use of Private and Alias Email
Accounts....................................................... 123
Senate EPW Minority Report re EPAs FOIA and Federal Records
Failures Uncovered............................................. 150
DESTRUCTION OF RECORDS AT EPA:.
WHEN RECORDS MUST BE KEPT
----------
THURSDAY, MARCH 26, 2015
House of Representatives,
Subcommittee on Environment &
Subcommittee on Oversight
Committee on Science, Space, and Technology,
Washington, D.C.
The Subcommittees met, pursuant to call, at 10:26 a.m., in
Room 2318 of the Rayburn House Office Building, Hon. Barry
Loudermilk [Chairman of the Subcommittee on Oversight]
presiding.
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Loudermilk. The Committee on Science, Space, and
Technology joint hearing of the Subcommittee on Oversight and
the Subcommittee on Environment will come to order.
Without objection, the Chair is authorized to declare a
recess of the Committee at any time.
Good morning, and welcome today to the hearing titled
``Destruction of Records at EPA: When Records Must Be Kept.''
In front of you are packets containing the written
testimony, biographies, and Truth in Testimony disclosures for
today's witnesses.
I recognize myself for five minutes for an opening
statement.
Good morning, everyone. I want to welcome and thank all of
our witnesses for being here today. As you might know, it was
brought to this Committee's attention last fall that the
Environmental Protection Agency deleted thousands of text
messages that it may have needed to preserve as federal
records. At that time, EPA spokeswoman Liz Purchia was quoted
as saying that, ``The agency maintains that the text messages
neither had to be preserved nor were subject to disclosure. The
text messages can be legally deleted.''
It is stated in the Federal Records Act that the head of
each federal agency shall make and preserve records containing
adequate and proper documentation of the organization,
functions, policies, decisions, procedures, and essential
transactions of the agency and designed to furnish the
information necessary to protect the legal and financial rights
of the government and of persons directly affected by the
agency's activities. The Federal Records Act was updated this
past September to further clarify that it is the information
that is important to preserve and not the medium in which that
information was created or received. This amendment was put
into place to ensure that no matter how the information is
transmitted in this digital age, if the information qualifies
as a federal record, it must be preserved as a federal record.
Further, the EPA's records management policy approved in
2009 seems to contradict Ms. Purchia's statement by noting that
each office within the EPA is required to establish and
maintain a records management program with the following
minimum requirements: Create, receive, and maintain official
records providing adequate and proper documentation and
evidence of EPA's activities; manage records, in any format, in
accordance with applicable statutes, regulations, and EPA
policy and guidance; and maintain electronic records.
Considering that approximately 5,000 of EPA's personnel are
issued mobile devices by the Agency, we must be certain that
the policies and procedures in place are strong enough to
protect and safeguard the text messages that qualify as federal
record that may be purposefully or even mistakenly deleted.
This Committee began its investigation into the
preservation of text messages as federal records last November
when it asked the EPA Inspector General to look into the
matter. Since then, the Committee has continued its
Congressional oversight of this important matter by trying to
work with the EPA to learn more about this situation. From the
information that the Committee has obtained thus far, it
appears that although EPA employees are allowed to use their
work phones for text messaging, there are virtually no text
messages preserved as federal records. I find this extremely
hard to believe.
What is disappointing to me is that it has been fairly
difficult to obtain helpful documents from the EPA in order to
conduct our investigation since the first letter sent to the
Administrator in January. This slow rolling and lack of a
complete response is unfortunately not something new to the
Committee in its interactions with the Administration. It has
the unfortunate resemblance to the Committee's obstructed
investigation of the role of the U.S. Chief Technology Officer
with the development and rollout of HealthCare.gov.
As the chairman of this Committee's Oversight Subcommittee,
I want to ensure that we restore transparency and
accountability across the government and this Administration,
with today's focus being on the EPA.
With that, I look forward to today's hearing where I hope
to learn from our witnesses more about the policies and
procedures that have been in place to ensure valuable federal
records are preserved. In the end, I would like to know what is
being done or what can be done to protect the inadvertent or
intentional destruction of federal records to ensure the
highest level of transparency that is owed to the American
people.
[The prepared statement of Mr. Loudermilk follows:]
Prepared Statement of Oversight Subcommittee
Chairman Barry Loudermilk
Good morning everyone. I want to welcome and thank all of our
witnesses for being here today.
As you might know, it was brought to this Committee's attention
last fall that the Environmental Protection Agency (EPA) deleted
thousands of text messages that it may have needed to preserve as
federal records. At that time, EPA spokeswoman Liz Purchia was quoted
as saying that,
`` . . . the agency maintains that the text messages neither had to
be preserved nor were subject to disclosure. Text messages can legally
be deleted.''
It is stated in the Federal Records Act that, ``The head of each
Federal agency shall make and preserve records containing adequate and
proper documentation of the organization, functions, policies,
decisions, procedures, and essential transactions of the agency and
designed to furnish the information necessary to protect the legal and
financial rights of the Government and of persons directly affected by
the agency's activities.''
The Federal Records Act was updated this past September to further
clarify that it is the information that is important to preserve and
not the medium in which that information was created or received. This
amendment was put in place to ensure that no matter how the information
is transmitted in this digital age, if the information qualifies as a
federal record, it must be preserved as a federal record.
Further, the EPA's records management policy approved in 2009 seems
to contradict Ms. Purchia's statement by noting that,
``Each office within EPA is required to establish and maintain a
records management program with the following minimum requirements:
Create, receive, and maintain official records providing adequate and
proper documentation and evidence of EPA's activities; manage records,
in any format, in accordance with applicable statutes, regulations, and
EPA policy and guidance; and maintain electronic records.''
Considering that ``approximately 5,000 of EPA's personnel are
issued a mobile device by the Agency,'' we must be certain that the
policies and procedures in place are strong enough to protect and
safeguard text messages that qualify as federal record that may be
purposefully or even mistakenly deleted.
This Committee began its investigation into the preservation of
text messages as federal records last November when it asked the EPA
Inspector General to look into the matter. Since then, the Committee
has continued its Congressional oversight of this important matter by
trying to work with the EPA to learn more about this situation. From
the information that the Committee has obtained thus far, it appears
that although EPA employees are allowed to use their work phones for
text messaging, there are virtually no text messages preserved as
federal records. I find this extremely hard to believe.
What is disappointing to me is that it has been fairly difficult to
obtain helpful documents from the EPA in order to conduct our
investigation since the first letter sent to the Administrator in
January. This slowrolling and lack of a complete response is
unfortunately not something new to the Committee in its interactions
with this Administration. It has the unfortunate resemblance to the
Committee's obstructed investigation of the role of the U.S. Chief
Technology Officer with the development and roll-out of HealthCare.gov.
As the Chairman of this Committee's Oversight Subcommittee, I want
to ensure that we restore transparency and accountability across the
government and this Administration, with today's focus being on the
EPA.
With that, I look forward to today's hearing where I hope to learn
from our witnesses more about the policies and procedures that have
been in place to ensure valuable federal records are preserved. In the
end, I would like to know what is being done or what can be done to
protect the inadvertent or intentional destruction of federal records
to ensure the highest level of transparency that is owed to the
American people.
Chairman Loudermilk. I now recognize the Ranking Member of
the Subcommittee on Oversight, the gentleman from Virginia, Mr.
Beyer, for an opening statement.
Mr. Beyer. Thank you, Chairman Loudermilk, and thank you
for coming and testifying with us today.
I want to make three points this morning in my opening
remarks. First: I think we can all agree that federal
recordkeeping is important and requires some modifications as
our modes of communication change. Second: Many people
misunderstand or intentionally mischaracterize what constitutes
federal recordkeeping. And third: We should stick to the facts
in the Science Committee, of all places, and we should not let
intentional mischaracterizations color our process or our
handling of an allegation.
So first, we can all be in consensus that it is important
to properly preserve government records. We can also agree that
we should continue to improve the system that allows federal
employees to identify and maintain records in accordance with
the Federal Records Act. If there is a problem, we must correct
it. If an agency or individual is not properly preserving
records, we must acknowledge that and take proper next steps.
If federal records have been intentionally deleted or
destroyed, then individuals should be held accountable. But
just because a record is deleted does not mean that a federal
record has been destroyed.
My second point is that many people, including perhaps
Members of Congress, misunderstand what is and is not a federal
record. This understanding extends to non-transitory records
that must be collected and preserved, and what constitutes a
transitory record that does not require preservation. Living in
the digital age, we all know that we generate far more written
communications in more forms than ever before. Identifying,
collecting and storing all the data generated in a federal
agency is neither necessary, realistic nor economical. On
average, only about ten percent of a federal agency's data
constitutes a federal record. In addition, despite some
misperceptions, personal emails may be used for official
government business provided the record is preserved by cc'ing
it to the agency email address.
Now to the third point: We should not engage in
mischaracterizations. And if others do, we should not encourage
or celebrate these mischaracterizations. In September 2013 the
EPA IG's office released a report titled: ``Congressionally
Requested Inquiry Into the EPA's Use of Private and Alias Email
Accounts.'' This was requested by Chairman Smith and others,
but some Members of Congress publicly mischaracterized the
findings of the IG, making false accusations as a result. In
one instance, some claimed that a specific EPA Regional
Administrator lied to OIG investigators and used his private
email to conduct agency business. What was not realized, and
was not acknowledged, was that this practice is permitted under
the Federal Records Act. In fact, in the OIG's lengthy public
response to set the record straight, they noted that the EPA
official had cc'd all of his work-related records from their
private email to their government epa.gov account, and that
rather than lying to the OIG investigators that the
individual's ``statement to the OIG was corroborated by the
emails obtained by the OIG.''
These sorts of sweeping and false characterizations are
troubling, and I point to them because I am deeply concerned by
the written testimony I read earlier by Dr. David Schnare for
this hearing today. His testimony alleges that senior EPA
officials, including Administrator Gina McCarthy, have
``blatantly violated the Federal Records Act, intentionally not
followed the law and kept Agency records secret in order to
conceal contacts with individuals or groups outside the
Agency.'' Dr. Schnare has made unsupported and sweeping
allegations against the EPA in the past also. I am attaching to
my statement four documents related to a 2012 lawsuit filed by
Dr. Schnare against the EPA accusing the Agency, and its then-
Administrator Lisa Jackson, of participating in human
experiments he likened to horrific experiments conducted by
Nazi doctors on prisoners in concentration camps during World
War II and claimed the EPA was using ``secret gas chambers'' to
conduct these studies on airborne particulate matter. The case
was dismissed after Dr. Schnare's lawsuit resulted in multiple
newspaper headlines, such as these: ``EPA's secret gas chamber
experiments: A deceitful failure,'' and ``EPA charged with
lethal experiments on hundreds of unsuspecting subjects.'' If
there are legitimate issues with EPA recordkeeping or the
processing of FOIA requests, then let us look at these issues
and let us address them in a serious way, and I am happy to
work with my colleagues on both sides of the aisle in a
productive way to do so. We have the reasoned and careful
testimony of the EPA Inspector General's office and the
National Archives, and there is little there to turn into
sensational headlines, and I commend these testimonies to my
colleagues' attention as being educational and fact-based.
Mr. Chair, I yield back.
[The prepared statement of Mr. Beyer follows:]
Prepared Statement of Subcommittee on Oversight
Minority Ranking Member Donald S. Beyer, Jr.
Good morning!
I want to make three points this morning in my opening remarks.
First: I think we can all agree that federal recordkeeping is
important AND requires some modifications as our modes of communication
change.
Second: Many people misunderstand or intentionally mischaracterize
what constitutes federal recordkeeping.
And third: We should stick to the facts in the Science Committee of
all places, and we should not let intentional mischaracterizations
color our process or our handling of an allegation.
So first: We can all be in consensus that it is important to
properly preserve government records. We can also agree that we should
continue to improve the system that allows federal employees to
identify and maintain records, in accordance with the Federal Records
Act.
If there is a problem, we must correct it. If an agency or
individual is not properly preserving records, we must acknowledge that
and take proper next steps. If federal records have been intentionally
deleted or destroyed, then individuals should be held to account. But
just because a record is deleted does not mean that a Federal Record
has been destroyed.
My second point is that many people, including perhaps Members of
Congress, misunderstand what is and is not a Federal Record. This
understanding extends to ``non-transitory'' records that must be
collected and preserved, and what constitutes a ``transitory'' record
that does not require preservation. Living in the digital age we all
know that we generate far more written communications in more forms
than ever before. Identifying, collecting and storing ALL the data
generated in a federal agency is neither necessary, realistic nor
economical. On average, only about 10 percent of a federal agency's
data constitutes a federal record. In addition, despite some
misperceptions, personal e-mails may be used for official government
business provided the record is preserved by cc'ing it to your agency
email address.
Now to the third point: We should not engage in
mischaracterizations. And if others do, we should not encourage or
celebrate these mischaracterizations.
In September 2013 the EPA IG's office released a report titled:
Congressionally Requested Inquiry Into the EPA's Use of Private and
Alias Email Accounts. Chairman Smith and others requested that
investigation. But some Members of Congress publicly mischaracterized
the findings of the IG, making false accusations as a result. In one
instance, some claimed that a specific EPA Regional Administrator lied
to OIG investigators and used his private email to conduct agency
business. What was not realized, or was not acknowledged, was that this
practice is permitted under the Federal Records Act. In fact, in the
OIG's lengthy public response to set the record straight they noted
that the EPA official had cc'd all of their work related records from
their private email to their government ``epa.gov'' account and that
rather than lying to the OIG investigators that the individual's
``statement to the OIG was corroborated by the emails obtained by the
OIG.''
These sorts of sweeping and false characterizations are troubling
and I point to them because I am deeply concerned by the written
testimony submitted by Dr. David Schnare for this hearing today. His
testimony alleges that senior EPA officials, including Administrator
Gina McCarthy, ``have blatantly violated the Federal Records Act,''
intentionally not followed the law and kept Agency records ``secret''
in order to conceal contacts with individuals or groups outside the
Agency. Dr. Schnare has made unsupported and sweeping allegations
against the EPA in the past too. I am attaching to my statement four
documents related to a 2012 lawsuit filed by Dr. Schnare against the
EPA accusing the Agency, and its then-Administrator Lisa Jackson, of
participating in human experiments he likened to horrific experiments
conducted by Nazi doctors on prisoners in concentration camps during
World War II and claimed the EPA was using ``secret gas chambers'' to
conduct these studies on airborne particulate matter. The case was
dismissed after Dr. Schnare's lawsuit resulted in multiple newspaper
headlines, such as these: ``EPA's secret gas chamber experiments: A
deceitful failure,'' and ``EPA Charged With Lethal Experiments on
Hundreds of Unsuspecting Subjects.''
If there are indeed legitimate issues with EPA record keeping or
the processing of FOIA requests, then let us look into those issues and
address them. I am happy to work with my colleagues in a productive way
to do so. However, I do not believe it is productive to allow someone
who shows such disregard for the facts to testify. It does not lend to
the credibility of this hearing or this In contrast, I look forward to
the reasoned and careful testimony of the EPA Inspector General's
office and the National Archives. There is little there to turn into
sensational headlines, but I commend those testimonies to my
colleagues' attention as being educational and fact-based.
I yield back.
Chairman Loudermilk. Thank you, Mr. Beyer, and I appreciate
that, and it is the intention of this Subcommittee to look into
this matter, and cooperation by the Agency is one of the things
that would be very helpful, and that is what we are seeking to
do.
At this point I now recognize the chairman of the
Subcommittee on Environment, the gentleman from Oklahoma, Mr.
Bridenstine, for an opening statement.
Mr. Bridenstine. Thank you, Chairman Loudermilk, and thank
you for your leadership on this issue. I would also like to
thank Chairman Lamar Smith for his leadership on this very
important issue. Welcome to all of our witnesses, and thank you
for being with us today.
Time and time again, we have seen the Environmental
Protection Agency use the regulatory process to increase the
federal government's authority and bypass Congressional intent
at the expense of states' rights. The EPA's regulations have an
enormous cost, stifling businesses, destroying jobs, and
increasing the cost of living for Americans, especially those
in my district. The EPA seems to believe it should be able to
operate without oversight.
Just last week, this Committee helped usher through the
House two bills that would simply require greater transparency
and more balanced and public input into EPA's rulemaking
processes. Unfortunately, the President has threatened to veto
both bills.
Today's hearing topic covers the same unfortunate theme.
Federal archiving laws exist, as the Federal Records Act
states, ``to protect the legal and financial rights of persons
directly affected by the agency's activities.'' And I can tell
you in my home State of Oklahoma, in my constituency, there are
many people directly affected by the Agency's activities.
However, the EPA would have us believe that despite the fact
that thousands of text messages are being sent and received,
virtually none is important enough to qualify as a federal
record and require preservation, and therefore can be deleted
by the individuals sending and receiving them.
If we, as representatives of the American people, people
who are directly affected by EPA's activities, are not provided
with the information necessary to verify that the agency's
practices are fulfilling both the letter and the spirit of the
law, how can we know that the agency isn't getting rid of the
very records it is required to preserve? EPA is once again
refusing to comply with the Committee's requests, necessitating
the chairman's issuance of a subpoena yesterday to compel
production. EPA's refusal to turn over records and documents is
yet another example of the lack of accountability and
transparency that has become a hallmark of this agency in its
dealings with Congress.
We here in the House are not alone. Members of the public
who request information can expect the same. The Center for
Effective Government recently released a report grading federal
agencies on how responsive they are to FOIA requests; the EPA
received a D. Again, I believe that we here in Congress have a
responsibility, on behalf of the people we represent, to
oversee the actions of agencies like the EPA. This is important
when those actions have such significant impacts on all of us,
and particularly the impacts in my State of Oklahoma. The EPA
has a responsibility and an obligation to provide the
information we have requested.
I thank the witnesses for being with us today and I look
forward to your testimony. I yield back.
[The prepared statement of Mr. Bridenstine follows:]
Prepared Statement of Subcommittee on Environment
Chairman Jim Bridenstine
Time and time again, we have seen the Environmental Protection
Agency, use the regulatory process to increase the federal government's
authority and bypass Congressional intent, at the expense of states'
rights. The EPA's regulations have an enormous cost, stifling
businesses, destroying jobs, and increasing the cost of living for
Americans.
The EPA seems to believe it should be able to operate without
oversight. Just last week, this Committee helped usher through the
House two bills that would simply require greater transparency and more
balanced and public input into EPA's rulemaking processes.
Unfortunately, the President has threatened to veto both bills.
Today's hearing topic covers the same unfortunate theme. Federal
archiving laws exist, as the Federal Records Act states, ``to protect
the legal and financial rights . of persons directly affected by the
agency's activities.'' However, the EPA would have us believe that
despite the fact that thousands of text messages are being sent and
received, virtually none is important enough to qualify as a federal
record and require preservation, and therefore can be deleted by the
individuals sending and receiving them.
If we, as representatives of the American people, people who are
directly affected by EPA's activities, are not provided with the
information necessary to verify that the agency's practices are
fulfilling both the letter and the spirit of the law, how can we know
that the agency isn't getting rid of the very records it is required to
preserve?
EPA is once again refusing to comply with the Committee's requests,
necessitating the Chairman's issuance of a subpoena yesterday to compel
production.
EPA's refusal to turn over records and documents is yet another
example of the lack of accountability and transparency that has become
a hallmark of this agency in its dealings with Congress. We here in the
House are not alone; members of the public who request information can
expect the same. The Center for Effective Government recently released
a report grading federal agencies on how responsive they are to FOIA
requests, and the EPA received a ``D.''
Again, I believe that we here in Congress have a responsibility, on
behalf of the people we represent, to oversee the actions of agencies
like the EPA. This is important when those actions have such
significant impacts on all of us, and particularly on my home state of
Oklahoma. The EPA has a responsibility and an obligation to provide the
information we have requested. I thank the witnesses for being with us
today and look forward to their testimony.
Chairman Loudermilk. Thank you, Mr. Bridenstine.
I now recognize the Ranking Member of the Subcommittee on
Environment, the gentlewoman from Oregon, Ms. Bonamici, for her
opening statement.
Ms. Bonamici. Thank you very much, Mr. Chairman.
As someone who strongly believes in transparent government,
I would certainly take issue with any government agency
unlawfully destroying records. I do want to point out, however,
that the title of today's hearing, ``Destruction of Records at
EPA--When Records Must Be Kept,'' makes it appear that we have
reached a verdict before we have examined the evidence. Given
that the EPA Inspector General is beginning an investigation
into this issue at the request of Chairman Smith, it would have
been more prudent to wait until the investigation had came back
with to report before holding this hearing.
And just yesterday, the chairman issued a subpoena to
Administrator McCarthy requiring that the Agency turn over
billing records and text messages, without redaction, for the
past six years. The EPA has been responsive to numerous
Committee requests for information on this topic, so the
issuance of this subpoena seems premature and hard to justify.
Nevertheless, I am pleased that both the EPA's Assistant
Inspector General and the Chief Records Officer of the National
Archives and Records Administration are here today to provide
us with some background on the preservation of federal records.
I am also interested in reviewing the actions taken by EPA in
response to the Inspector General's 2013 report on the Agency's
email practices. It is my understanding that the EPA
steadfastly maintains that the Agency did not circumvent
federal record management responsibilities, a claim that was
validated by the 2013 report, and reiterated in a letter to our
Senate colleagues in 2014. I am attaching both the report and
the letter to my statement.
In this modern age of rapid, often electronic
communication, important questions are rightly raised about the
nature of federal records. Is a note passed between colleagues
at a meeting a federal record? Does it depend on what it says?
What about a text message from an assistant to a supervisor
about ordering the donuts for a breakfast meeting?
The process of conducting business within the government is
complex and nuanced, and it stands to reason that the law
governing the retention and preservation of the records of such
business is equally nuanced. Both the Federal Records Act and
the National Archives and Records Administration Act provide
guidance on how such items should be preserved and when they
can properly be destroyed.
Now, having had an opportunity to review the testimony, I
am somewhat puzzled about part of the hearing today. It is easy
to understand why both the EPA IG and NARA have been asked to
testify, but I do hope we get clarification about what Dr.
Schnare's role is here today. Is he here as General Counsel of
E&E Legal, the group that apparently sent the FOIA request to
the EPA asking for text messages? I see that Dr. Schnare says
he has years of experience responding to FOIA requests, but is
he here claiming to be an expert on record retention?
Also, Dr. Schnare's testimony in places is quite
accusatory, and I do hope that any opinions are clearly
conveyed as just that: opinions. For example, in the place in
the testimony when Dr. Schnare states, ostensibly as fact, that
EPA senior management is ``pleased'' when they allegedly
destroy public records. So I acknowledge Dr. Schnare is a
lawyer and a Ph.D., but he is neither judge nor jury. So I will
be listening carefully, as I hope all Members will do, to
determine what specific evidence is provided to support such
serious accusations.
Now, make no mistake: willfully and unlawfully destroying
or deleting, or attempting to destroy or delete federal records
carry severe fines and sometimes prison terms, and I am wholly
supportive of efforts to ensure the proper preservation of
government records, and equally supportive of holding
accountable those who have intentionally and unlawfully
destroyed federal records. But let us not be quick to condemn
until we have fully understood if the obligations and actions
were consistent with the law.
Thank you, Mr. Chairman, and I yield back the balance of my
time.
[The prepared statement of Ms. Bonamici follows:]
Prepared Statement of Subcommittee on Oversight
Minority Ranking Member Suzanne Bonamici
Thank you Mr. Chair. As someone who strongly believes transparent
government, I would certainly take issue with any government agency
unlawfully destroying records. However, the title of today's hearing,
``Destruction of Records at EPA - When Records Must Be Kept,'' makes it
appear that we have reached a verdict before we have examined any
evidence.
Given that the EPA Inspector General is just beginning an
investigation into this issue at the request of Chairman Smith, it
would have been more prudent to wait until the investigation had
something to report before holding this hearing.
Just yesterday, the Chairman issued a subpoena to Administrator
McCarthy requiring that the Agency turn over billing records and text
messages, without redaction, for the past six years. EPA has been
responsive to the numerous Committee requests for information on this
topic, so the issuance of this subpoena seems quite premature and hard
to justify. Nevertheless, I am pleased that both the EPA's Assistant
Inspector General and the Chief Records Officer of the National
Archives and Records Administration are here today to provide us with
some background on the preservation of federal records. I am also
interested in reviewing the actions taken by EPA in response to the
Inspector General's 2013 report on the Agency's emailpractices.
It is my understanding that EPA steadfastly maintains that the
Agency did not use private or secondary emails to circumvent federal
record management responsibilities, a claim that was validated by the
2013 report, and reiterated in a letter to our Senate colleagues in
2014. I am attaching both the report and the letter to my statement.
In this modern age of rapid, often electronic communication,
important questions are rightly raised about the nature of federal
records. Is a note passed between colleagues at a meeting a federal
record? What about a text message from an assistant to a supervisor
about ordering donuts for a breakfast meeting? The process of
conducting business within the government is complex and nuanced, and
it stands to reason that the law governing the retention and
preservation of the records of such business is equally nuanced. Both
the Federal Records Act and NARA provide guidance on how such items
should be preserved and when they can properly be destroyed.
Having had an opportunity to review the testimony, I am somewhat
puzzled about why we are hearing from one of the witnesses called to
this hearing. It is easy to understand why both the EPA IG and NARA
have been asked to testify. But I'm wondering what Dr. Schnare's role
is today. Is he here as General Counsel of E&E Legal, the group that
apparently sent the FOIA request to the EPA asking for text messages? I
see that Dr. Schnare says he has years of experience responding to FOIA
requests, but is he here claiming to be an expert on record retention?
His testimony is quite accusatory; I do hope that any opinions are
clearly conveyed as just that--opinions--like the place in the
testimony when Dr. Schnare state, ostensibly as fact, that EPA senior
management is ``pleased'' when they allegedly destroy public records.
And I am already concerned based on the written testimony that some
of these accusations could be considered defamatory. Dr. Schnare is a
Phd and a lawyer, but he is neither judge nor jury.
I will be listening carefully, as I hope all members will do, to
determine what specific evidence Dr Schnare has to support such serious
accusations. Make no mistake: willfully and unlawfully destroying or
deleting, or attempting to destroy or delete, federal records carry
severe fines and prison terms. I am wholly supportive of efforts to
ensure the proper preservation of government records, and equally
supportive of holding accountable those who have intentionally and
unlawfully destroyed federal records. But let us not be quick to
condemn until we have fully understood if the obligations and actions
were consistent with the law.
I yield back.
Chairman Loudermilk. Thank you, Ms. Bonamici, and let me
remind the Members of this hearing that the evidence is that
text messages were in fact deleted, which was confirmed by the
EPA.
At this point I recognize the chairman of the full
Committee, Mr. Smith.
Chairman Smith. Thank you, Mr. Chairman, and let me add my
thanks to yours for our expert testimony today. We really do
appreciate all three of you all being here, and you have much
to contribute, and we will get to questions and answers in a
few minutes.
Mr. Chairman, this Committee often addresses technical and
scientific integrity standards. However, in the past few years,
the Committee has had to repeatedly examine the standard of
transparency and accountability. Unfortunately, certain
agencies and federal officials have failed to meet it.
We have seen a disregard for agency transparency several
times in recent years across the federal government such as
with Lois Lerner's IRS targeting controversy and Hillary
Clinton's secret server issue.
We have also seen this within the agencies under this
Committee's jurisdiction. There have been transparency issues
at the EPA going back as far as the Clinton Administration, and
just this past year, a federal judge held the EPA in contempt
for disregarding a court order not to destroy records. In that
case, former EPA Administrator Carol Browner asked an employee
to delete all her as well as other senior officials' computer
files as a new Administration was about to take over. Her
excuse was that she wanted to have some games removed from her
computer. Yes, she was undoubtedly playing games.
Not long after the contempt finding, reports surfaced that
EPA Administrator Lisa Jackson created a secret email account
under the pseudonym Richard Windsor in an apparent attempt to
conceal emails. It has been reported that this led to her
resignation.
At the EPA, lack of transparency is even more pronounced
when coupled with the EPA's use of secret science to justify
costly regulations. What is clear is that this Administration
has failed to meet its promise of being the most transparent in
American history. We would settle for just plain transparent.
Recently, a majority--listen to this--a majority of the
Inspectors General signed a letter to the Administration
criticizing its lack of cooperation in providing public
documents, and many in the media say that this Administration
is the least forthcoming they can remember.
Today the Committee once again examines the EPA's practices
for the preservation of federal records and how they may
reflect how this Agency makes its decisions on scientific
issues. Last year, the Committee learned that since 2009, the
current EPA Administrator Gina McCarthy has deleted thousands
of text messages from her official mobile device. The EPA
claims that these text messages are all of a personal nature
and therefore not subject to the Federal Records Act. But it is
simply not believable that of the almost 6,000 text messages
between 2009 and 2013 and many since, that only one was related
to EPA business. The single text message produced by EPA was
received at the start of this year. This was months after the
EPA Office of Inspector General began its investigation and
within days of receiving a letter of inquiry from this
Committee. While Committee staff has repeatedly asked for
certain unredacted documents that the EPA has already collected
under a FOIA request, the EPA has failed to turn over these
documents. This pattern of withholding, concealing, and
destroying records must stop.
The American people deserve an open and transparent
government. This firm belief in transparency and the
disappointing response to this Committee's request from the EPA
compelled the Committee to authorize a subpoena yesterday. This
stonewalling and slow-rolling of documents in response to
Congressional requests must end. Americans deserve to have the
facts.
I hope, Mr. Chairman, that today's witnesses will provide
additional information crucial to this investigation, and I
will yield back the balance of my time.
[The prepared statement of Mr. Smith follows:]
Prepared Statement of Full Committee Chairman Lamar S. Smith
Thank you, Chairman Loudermilk, for holding this hearing. I also
thank the witnesses for being here today to provide their valuable
testimony.
This Committee often addresses technical and scientific integrity
standards. However, in the past few years, the Committee has had to
repeatedly examine the standard of transparency and accountability.
Unfortunately, certain agencies and federal officials have failed to
meet it.
We have seen a disregard for agency transparency several times in
recent years across the federal government--such as with Lois Lerner's
11IRS targeting controversy'' and Hillary Clinton's ``secret server''
issue.
We have also seen this within the agencies under this Committee's
jurisdiction. There have been transparency issues at the EPA going back
as far as the Clinton Administration. And just this past year, a
federal judge held the EPA in contempt for disregarding a court order
not to destroy records. In that case, former EPA Administrator Carol
Browner asked an employee to delete all her as well as other senior
officials' computer files as a new Administration was about to take
over. Her excuse was that she wanted to have some ``games'' removed
from her computer. Yes she was undoubtedly playing games.
Not long after the contempt finding, reports surfaced that EPA
Administrator Lisa Jackson created a secret email account under the
pseudonym ``Richard Windsor'' in an apparent attempt to conceal emails.
It has been reported that this unfortunate incident lead to her
resignation.
At the EPA, lack of transparency is even more pronounced when
coupled with the EPA's use of ``secret science'' to justify costly
regulations. What is clear is that this Administration has failed to
meet its promise of being the most transparent in American history. We
would settle for just plain transparent.
Recently, a majority of Inspectors General signed a letter to the
Administration criticizing its lack of cooperation in providing public
documents. And many in the media say that this Administration is the
least forthcoming they can remember.
Today the Committee once again examines the EPA's practices for the
preservation of federal records and how they may reflect how this
Agency makes its decisions on scientific issues.
Last year, the Committee learned that since 2009, the current EPA
Administrator Gina McCarthy has deleted thousands of text messages from
her official mobile device. The EPA claims that these text messages are
all of a personal nature and therefore not subject to the Federal
Records Act. But it is not believable that of the almost 6,000 text
messages between 2009 and 2013 and many since, that only one was
related to EPA business. The single text message produced by EPA was
received at the start of this year. This was months after the EPA
Office of Inspector General began its investigation and within days of
receiving a letter of inquiry from this Committee.
While Committee staff has repeatedly asked for certain unredacted
documents that the EPA has already collected under a FOIA request, the
EPA has failed to turn over these documents. This pattern of
withholding, concealing, and destroying records must stop. The American
people deserve an open andtransparent government.
This firm belief in transparency and the disappointing response to
this Committee's request from the EPA compelled the Committee to
authorize a subpoena yesterday. This stonewalling and slow-rolling of
documents in response to Congressional requests must end. Americans
deserve to have the facts.
I hope that today's witnesses will provide additional information
crucial to this investigation.
Chairman Loudermilk. Thank you, Mr. Chairman.
I now recognize the Ranking Member of the full Committee,
Ms. Johnson.
Ms. Johnson. Thank you very much, Mr. Chairman.
I learned yesterday that the chairman of the full Committee
issued a subpoena to the Environmental Protection Agency for
documents related to allegations of text and email messages
being deleted at EPA. When the Committee adopted the new
subpoena rules at the beginning of this Congress, he assured
the Minority that when he issued a subpoena, it would not come
as a surprise. Yesterday we saw the first subpoena go out, and
let me assure you that we were surprised.
As we understand it, the chairman sent two letters asking
for documents, one on January 27, 2015, and one on March 6,
2015. EPA was in the process of producing records responsive to
these two requests, which had different scopes, over the last
two weeks. Just Friday, EPA sent an email to the Majority that
read, in part, ``I do want to emphasize our strong desire to
continue to work with the Committee in a cooperative manner.''
Then five days later, on March 25th, the chairman issued his
subpoena.
It is a longstanding tradition in relations between the
Legislative and Executive branches that there is an expectation
that the two sides will accommodate the legitimate needs of
each other in struggles over documents. And the fact of the
matter is that EPA was complying with the Committee's request,
consistent with their responsibility to try to protect the
Administrator's privacy regarding personal contact and billing
information. This subpoena was thus entirely unnecessary from
an oversight perspective. However, from a press-release
perspective, I imagine that issuing the subpoena before this
hearing may be considered a score, to be a clever move. But
issuing a subpoena for press impact undermines the seriousness
of the chairman's oversight work. That is not good for the
Committee, the Congress, or the country.
I am attaching to my statement a timeline of contacts on
this matter so that people can see that EPA was in truth
working to meet our needs, and I would ask unanimous consent to
allow this to be attached to my comments.
Chairman Loudermilk. I am sorry. Will the lady----
Ms. Johnson. Today's hearing, sadly, is about political
theater and inflammatory claims that are not tied to any real
facts. There are a lot of allegations being made about text
messages and EPA, but these are not a lot of facts and it is
just not facts that we can rely on to know what really
happened.
To the degree that we know anything, it is that EPA is
probably doing about as well as any agency in trying to keep up
with the changing landscape of communications technologies and
the obligations to retain records. We also know that the most
inflated claims regarding former EPA Administrator Lisa
Jackson's use of email were found to be largely unsubstantiated
or just plain wrong.
In spite of that, we will have a witness appearing before
us today who has been at the center of a steady attack on EPA
regarding allegations that its employees lie, that they
purposefully delete and withhold records, and that the top
political officials take satisfaction in skirting the law. In
short, there will be a lot of heated rhetoric at today's
hearing, but not much evidence.
I wish this Committee would not be rushing to judgment in
an attempt to score political points, and instead would let the
IG do its job and finish its probe into these allegations. Then
we will know whether or not we have a mountain or a molehill
and we can act accordingly.
I thank you, Mr. Chairman, and I hope that our witnesses
realize they are under oath today. Thank you. I yield back.
[The prepared statement of Ms. Johnson follows:]
Prepared Statement of Full Committee
Ranking Member Eddie Bernice Johnson
Mr. Chairman, I learned yesterday that the Chairman of the full
committee issued a subpoena to the Environmental Protection Agency for
documents related to allegations of text and email messages being
deleted at EPA.
When the Committee adopted the new subpoena rulesat the beginning
of this Congress, he assured the Minority that when he issued a
subpoena it would not come as a surprise. Yesterday we saw the first
subpoena go out, and let me assure the Chairman that we weresurprised.
As we understand it, the Chairman sent two letters asking for
documents, one on January 27, 2015 and one on March 6, 2015. EPA was in
the process of producing records responsive to these two requests,
which had different scopes, over the last two weeks. Just Friday, EPA
sent an email to the Majority that read, in part ``I do want to
emphasize our strong desire to continue to work with the Committee in a
cooperative manner.'' Then five days later, on March 25th, the Chairman
issued his subpoena.
It is a long-standing tradition in relations between the
Legislative and Executive branches, that there is an expectation that
the two sides will accommodate the legitimate needs of each other in
struggles over documents. And the fact of the matter is that EPA was
complying with the Committee's request, consistent with their
responsibility to try to protect the Administrator's privacy regarding
personal contact and billing information.
This subpoena was thus entirely unnecessary from an oversight
perspective. However, from a press release perspective, I imagine that
issuing the subpoena before this hearing may be considered by some to
be a clever move. But issuing a subpoena for press impact undermines
the seriousness of the Chairman's oversight work. That is not good for
the Committee, the Congress, or the country.
I am attaching to my statement a timeline of contacts on this
matter so that people can see that EPA was in truth working to meet our
needs. Today's hearing, sadly, is about political theater and
inflammatory claims that are not tied to any real facts. There are a
lot of allegations being made about text messages and EPA, but there
are not a lot of facts to rely on to know what really happened. To the
degree we know anything, it is that EPA is probably doing about as well
as any agency in trying to keep up with the changing landscape of
communications technologies and its obligations to retain records. We
also know that the most inflated claims regarding former EPA
Administrator Lisa Jackson's use of email were found to be largely
unsubstantiated or just plain wrong.
In spite of that, we will have a witness appearing before us today
who has been at the center of a steady attack on EPA regarding
allegations that its employees lie, that they purposefully delete and
withhold records, and that the top political officials take
satisfaction in skirting the law. In short, there will be a lot of
heated rhetoric at today's hearing, but not much evidence. I wish this
Committee would not be rushing to judgment in an attempt to score
political points, and instead would let the IG do its job and finish
its probe into these allegations. Then we will know whether we have a
mountain or a molehill and we can act accordingly.
Thank you, and I yield back.
Chairman Loudermilk. Thank you, Ms. Johnson.
The letter sent in March put both the EPA and the Minority
on notice that the Committee would compel its production if the
documents were not turned over in an unredacted form.
Also, if there are Members who wish to submit additional
opening statements, their statements will be added to the
record at this point.
At this point I ask unanimous consent to enter the
documents into the record. Without objection, the documents are
entered.
Chairman Loudermilk. At this time I would like to introduce
our witnesses.
Our first witness is Mr. Paul M. Wester. Mr. Wester is the
Chief Records Officer for the National Archives and Records
Administration, or NARA.
The next witness on today's panel is Mr. Kevin Christensen.
Mr. Christensen is the Assistant Inspector General for Audit
for the Office of the Inspector General at the Environmental
Protection Agency. Welcome.
Today's final witness is Dr. David Schnare. Dr. Schnare is
a former Senior Attorney at the EPA's Office of Enforcement and
Compliance Assurance. He is also the Director of the Free
Market Environmental Law Clinic, the Director of the Center for
Environmental Stewardship at the Thomas Jefferson Institute for
Public Policy, and General Counsel at the Energy and
Environment Legal Institute.
Welcome to all of our witnesses here today.
Pursuant to Committee rules, all witnesses will be sworn in
before they testify. If you will please rise and raise your
right hand? Do you solemnly swear or affirm that the testimony
that you will give here today will be the truth, the whole
truth and nothing but the truth, so help you God? Let the
record reflect that the witnesses answered in the affirmative.
Before we begin, I will request that our witnesses please
limit your testimony to five minutes. It seems there will be
another series of votes, which could happen at any time, and I
want to make sure that we have time for discussion. Your entire
written statement will be made part of the record. And if we do
have votes coming up, we will suspend for those votes and then
come back here for the remainder of the testimony.
I now recognize Mr. Wester for five minutes to present his
testimony.
TESTIMONY OF MR. PAUL M. WESTER, JR.,
CHIEF RECORDS OFFICER,
NATIONAL ARCHIVES AND RECORDS ADMINISTRATION
Mr. Wester. Chairman Loudermilk, Chairman Bridenstine,
Ranking Member Beyer, and Ranking Member Bonamici, and other
distinguished Members of the Committee, I am Paul Wester, the
Chief Records Officer for the U.S. Government at the National
Archives and Records Administration. Thank you for holding this
hearing on the importance of federal recordkeeping and the
challenges agencies face managing government records.
In my prepared testimony, I provided a detailed summary of
a number of recent activities that the National Archives, the
Office of Management and Budget, and other federal agencies
across the government have undertaken to improve the management
of government records. I also make special note of the
enactment by the 113th Congress of the Presidential and Federal
Records Act Amendments of 2014 under the leadership of Chairman
Issa and Ranking Member Cummings of the House Oversight and
Government Reform Committee. I look forward to answering
questions this Committee may have on those activities.
The Committee asked me to address three specific questions
today. First, what does the Federal Records Act require of
federal agencies? The Federal Records Act requirements for
federal agencies are found at 44 U.S.C. Chapter 31, which is
titled ``Records management by federal agencies.'' At a high
level, agency heads are responsible for ensuring several things
including the adequate and proper documentation of agency
activities, a program of management to ensure effective
controls over the creation, maintenance, and use of records in
the conduct of their current business, and compliance with NARA
guidance and regulations and compliance with other sections of
the Federal Records Act that give NARA authority to promulgate
guidance, regulations, and records disposition authority to
federal agencies.
The second question the Committee asked me to address today
is what are transitory records and how is the disposition of
them different than other federal records. Under the General
Record Schedule 23, records common to most agencies within--
records common to most offices within agencies, transitory
records are defined at item 7 as records of short-term
interest, 180 days or less, including records in electronic
form like email messages or text messages, which have minimal
or no documentary or evidential value. Included are such
records as routine requests for information or publications and
copies of replies which require no administrative action, no
policy decision and no special compilation or research for the
reply or originating office copies of letters of transmittal
that do not add any information to that contained in the
transmitted material and receiving office copy if filed
separately from transmitted material and records documenting
routine activities containing no substantive information such
as routine notifications of meetings, scheduling of work-
related trips and visits, and other scheduling-related
activities. The disposition of these records is destroy
immediately or when no longer needed for reference, or
according to a predetermined time period or business rule like
implementing an auto-delete feature on an email system. The
disposition of transitory records is not different from the
disposition of other federal records. Federal employees are
encouraged to dispose of transitory records consistent with the
General Records Schedule 23 just as they are encouraged to
carry out disposition of other federal records according to
agency-specific and NARA-approved records disposition
schedules.
The third issue that the Committee asked me to address is
EPA's compliance with the Federal Records Act itself. As a
general matter, NARA cannot speak authoritatively to agency
compliance with the Federal Records Act. Departments and
agencies are responsible for managing their programs consistent
with the Act. I can say that the EPA has participated in NARA's
annual Records Management Self-Assessment, also known as the
RMSA, since it was established in 2009. The RMSA is a self-
reported evaluation of compliance with NARA's records
management regulations. NARA does some validation of survey
responses but the validation is limited to the verification
that records management program policies are in place. Overall,
the EPA has scored well on the self-assessment since we have
administered it since 2009.
Like other agencies, EPA has self-reported records
management issues to NARA as required in the Federal Records
Act. My staff and I work to resolve these issues with the EPA
records management staff. EPA has been responsive and
cooperative with NARA in these dialogs and has provided
supplementary information to NARA as it has been requested.
In conclusion, the management of federal records in all
their forms is a central, animating issue for the National
Archives and for the government as a whole. In that regard, the
Science Committee's interest in records management at the EPA
and all its sister agencies is also topic of interest to the
National Archives.
The talented staff of the National Archives and Records
Administration looks forward to working on records management
with EPA now and for many years to come. The long-term success
of the National Archives and the historical record of our
Nation depends on our collective success.
Thank you for the opportunity to appear today. I look
forward to answering your questions.
[The prepared statement of Mr. Wester follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Loudermilk. Thank you, Mr. Wester, and I now
recognize Mr. Christensen for five minutes to present his
testimony.
TESTIMONY OF MR. KEVIN CHRISTENSEN,
ASSISTANT INSPECTOR GENERAL FOR AUDIT,
OFFICE OF INSPECTOR GENERAL,
ENVIRONMENTAL PROTECTION AGENCY
Mr. Christensen. Good morning, Chairman Loudermilk,
Chairman Bridenstine, Ranking Member Beyer, and Ranking Member
Bonamici, and the Members of the Subcommittees. I am Kevin
Christensen, the EPA OIG, Office of Inspector General, the
Assistant Inspector General for Office of Audit. Today I will
discuss three matters: the records management policies of the
EPA, OIG's report congressionally requested inquiry into EPA's
use of private and alias email accounts, and EPA's compliance
with the Federal Records Act. I will highlight some of the
EPA's most significant records management policies and
procedures.
In June 2009, the records management policy was revised to
establish responsibilities and requirements to ensure that the
Agency is in compliance with federal laws and regulations and
the best practices for managing records. In June 2013, the
records management policy was again revised to provide EPA
employees with guidance when using personal email accounts to
conduct government business and instant messaging. Recently in
February 2015, the records management policy was revised
further to include guidance on the use of text message on EPA's
information system and personal devices. The EPA has also
published several reminders to Agency senior officials and
employees regarding their records management responsibilities.
In response to a request from the House Committee on
Science, Space, and Technology, the OIG completed an audit to
determine whether the EPA followed applicable laws and
regulations when using private and alias email accounts to
conduct official business. We issued our final report in
September 2013. The audit found no indications that EPA senior
officials had used, promoted or encouraged the use of private
non-governmental email accounts to circumvent records
management responsibilities or any EPA senior official
reprimanded, counseled or took administrative actions against
personnel for the use of private email or alias email accounts
for conducting official government business.
We uncovered no facts to support Agency senior officials
had used private email intentionally to circumvent federal
recordkeeping responsibilities. We determined that assigning
personnel multiple email accounts is widely practiced within
the Agency.
However, this is not limited to EPA senior officials and
presents risk to the EPA's records management efforts if these
additional email accounts are not searched during FOIA requests
or preserved as records.
We also conducted an audit of the Clean Water Act Section
404 permit notification reviews for surface coalmining and
issued our report in February 2012. We found without complete
records, it was difficult for the EPA to know the permit status
and the resolution of EPA's comments related to the Clean Water
Act.
Additionally, we are currently conducting an audit
reviewing the processes for preserving text messages. The
objectives include whether EPA implemented policies and
procedures to determine which text messages to preserve and
steps to ensure that the employees are knowledgeable of this
guidance, implemented processes to respond to Congressional and
FOIA requests involving agency employees' text messages, used
text messages for informational business, and deleted,
destroyed, lost or misplaced text messages needs for records
management, and if applicable, the rationale for destroying
text communication records. We anticipate this audit to be
completed in September of 2015.
I am here today at the request of the Committee to report
on how the EPA has conducted itself in line with relevant laws
and rules--laws and records--rules for records management.
Today I have outlined the records management policies within
EPA and the result of our audit work into EPA records
management practices along with the ongoing work into the
Agency text messaging. We are committed to working with
Congress and the EPA to help realize the benefits of an
effective records management program that enables and supports
the Agency work to fulfill its mission.
This concludes my statement. Thank you for the opportunity
to testify before you today. I will be pleased to answer any
questions you may have.
[The prepared statement of Mr. Christensen follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Loudermilk. Thank you, Mr. Christensen.
I now recognize Dr. Schnare for five minutes to present his
testimony.
TESTIMONY OF DR. DAVID SCHNARE, FORMER SR. ATTORNEY,
EPA OFFICE OF ENFORCEMENT AND COMPLIANCE ASSURANCE;
DIRECTOR, FREE-MARKET ENVIRONMENTAL LAW CLINIC;
DIRECTOR, CENTER FOR ENVIRONMENTAL STEWARDSHIP,
THOMAS JEFFERSON INSTITUTE FOR PUBLIC POLICY;
GENERAL COUNSEL, ENERGY & ENVIRONMENT LEGAL INSTITUTE
Dr. Schnare. Thank you, Mr. Chairman, all the Members of
the Committee. I appreciate your interest in this subject. My
role here today apparently is to be a foil, and all I wish to
do is to be a witness, and so I will fulfill that role.
The question before the Committee today is whether it can
have confidence that EPA is implementing the Freedom of
Information Act and the Public Records Act, especially in the
context of text messages. My three decades and more of
experience at EPA including working with very high officials
including the political-appointee level suggests, sadly, that
you cannot.
Let me make a few points, and I will rest on my written
testimony. Let me first say that with regard to fake email
addresses, there has been a change in the culture of the
Agency. For example, Administrator Whitman had an email address
called ``towit,'' rather clever, I thought, but when you
received an email from that private email account, it said
``from Administrator Whitman,'' unlike Administrator Johnson,
who when she used ``Richard Windsor'' showed it as coming from
Richard Windsor. This is a level of artifice that frankly is
inappropriate and was a change from previous Administrations.
Secondly, I have had the pleasure, if you will, if having
to deal with a great deal of civil discovery and Freedom of
Information request activities, and had to help senior
officials with review of documents that they had in their
personal possession. We managed a 7-million-page discovery
request in a civil case. We ended up producing 2.2 million
pages of material. The privilege log stood taller than I am
myself. The fact is that when you get large requests of this
kind, many hands make light work, and so the slowdown of the
Agency in producing documents is merely a question of whether
they are going to put the people on it and spread the work or
not.
Thirdly, there is a critical time when Agency officials and
where they are and what they are doing is important to know.
When the Agency is making decisions, for example, on a
regulatory matter, after the record closes, ex parte
communications are inappropriate. So if you see a text message
between the Administrator and someone who is an advocate or
lobbyist and it says ``I'll see you at Starbucks at 3,'' that
may seem as though it is a benign text message that has no
content or meaning and could be destroyed, but it is more than
that. It is an indication that the Administrator is meeting or
some official is meeting with someone from outside the Agency
at a time when one must take great care in what those meetings
are and what is said about them and how they are recorded, and
thus it is important for the public to know when Administrators
and other high officials are talking to people, and that
includes the media and the press, and we have seen documents
that say during this period of time when text messages were
destroyed, that in fact the phone records show the records were
made--the text messages were made to members of the media.
And so when you look at what is going on and how text
messages are used and what has been kept secret, you have to
actually ask someone who has been in the belly of the beast. I
have had the fortune of having to go through senior executives'
materials for purposes of production, and inevitably, one finds
messages and materials you really don't wish to make public
because they are embarrassing, not because they shouldn't be
released, and indeed, there are almost always files set aside
that you are not--you are asked not to look at, and in fact,
some of these folks have said to me when I identify some of
these, ``Oh, I really don't want those out. Let's just ignore
those.'' And when I asked for help from the Administrator's
office on Freedom of Information requests to which they must
respond and they did not, my own senior management went up and
asked for that, and the answer we got back was ``let it go.''
And so, Mr. Chairman, I will be happy to answer your
questions. I thank you for the opportunity to come up here. I
didn't seek it but I will be happy to answer your questions as
you may choose.
[The prepared statement of Dr. Schnare follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Loudermilk. And thank you for your testimony, and
to all of our witnesses, we really appreciate you coming here
to testify. The purpose of this Subcommittee hearing is not to
put our witnesses on trial; it is to get to the bottom of why
messages were deleted and what changes need to be made, and I
assure you that is the purpose of this hearing.
I now recognize myself for five minutes for questions. This
question I will present to each one of our witnesses. The one
text message record involving Gina McCarthy provided to this
Committee was coincidentally sent about a week after the
Committee inquired with the Agency about text message
retention. What is even more interesting is that the text
message came from Gene Karpinski, the President of the League
of Conservation Voters, and he said, ``Karpinski here. Great
job on the EPA comments on Keystone. I feel like the end is
very near.''
First, Dr. Schnare, as someone who once worked at the
Agency, do you find that there was a culture of text messaging
or giving out government-issued cell phone numbers to outside
groups?
Dr. Schnare. It was routine, and the way it worked was,
before there were text messages--and I am said to say I
remember when we thought fax was a pretty cool thing--the
telephone was the way you engaged in these conversations. There
was no record other than that you made the call, and that is
how people dealt with these outside groups where they didn't
really wish to have it known what they were saying and it
didn't matter what Administration you were in, that is the
practice.
As text messaging came along, it became the shorthand way
to do precisely the same thing. So what we have now is a
culture of text messages to be very brief but to essentially
engage in those kinds of communications that generally you
didn't want to have public or you didn't need to have public.
That is not the only reason people use text messages. They use
them for a variety of purposes but that became one of the
mechanisms used to engage in private conversations.
Chairman Loudermilk. Thank you, sir.
Mr. Wester, do you know if text messages like these with
the heads of agencies or departments speaking with outside
influential groups are commonly preserved as federal records?
Mr. Wester. What I do know is that records that are created
or received in the conduct of federal business, which can
include text messages and other kinds of electronic
communications that document those transactions can be federal
records and often are federal records and need to be managed
appropriately. Sometimes they can be characterized as
transitory records, as I described in my testimony. Otherwise
there are specific schedules that are in place within agencies
that require different kinds of dispositions for those kinds of
materials, but what you are describing, it sounds like it is a
message that has been created and received in the conduct of
federal business, which means it is a federal record that needs
to be managed appropriately. It is a question of which
disposition applies to it.
Chairman Loudermilk. Thank you, sir.
Mr. Christensen, in your role as Assistant Inspector
General for Audit at the EPA OIG, have you found there to be a
practice of text messaging or giving out government-issued cell
phone numbers to outside groups? In addition, do you know if
the text messages like these between the Administrator at the
EPA speaking with outside influential groups are commonly
preserved as federal records using EPA's policies and
procedures over the years?
Mr. Christensen. Sir, we had one audit ongoing, which I
mentioned in my testimony, about the text messages. We are
still in the field work or the initial research phase of that.
We have not reached any conclusions so I couldn't provide any
definite yes or no on that answer. We would be happy to share
the results when we get finished with the audit.
Chairman Loudermilk. Working inside the EPA, would it be
common practice that 100 percent of text messages in a four-
year period would all be transitory or personal in nature?
Mr. Christensen. We haven't completed our work so we
haven't come to any conclusion based on our report.
Chairman Loudermilk. All right. Thank you.
Considering groups like the League of Conservation Voters
can influence important policy decisions that the EPA weighs in
on that eventually affect the daily lives of Americans, I find
it necessary that communications like these are brought forward
and recorded as federal records in order to ensure
transparency. Without transparency at the EPA, as we see in the
only text message example, there is an appearance of
impropriety and undue influence on the EPA's decision makers
that could essentially end up hurting American taxpayers
without their knowledge of it ever occurring, and that is the
context of where we want to go with this.
I will yield back my time at this point. I am sure others
have several questions that they would like to engage in, and
at this time I recognize Mr. Beyer for five minutes.
Mr. Beyer. Thank you, Mr. Chairman.
I would like to begin just by noting that there is a world
of difference between deleting text messages and deleting a
federal record and we need to be clear and careful in this
matter.
I am new to text messaging. I discovered I had no choice
because my children would not return my phone calls, but they
answer my text messages right away. And I discovered with my
U.S. Congress-issued cell phone that almost all the text
messages I get from the staff are: are you still stuck on the
14th Street Bridge; I will meet you at the Science Committee
room; votes are called--virtually nothing--I have never seen a
vote recommendation or anything else. They have all been in
emails or handed to me but never text message because they are
a few things long.
I want to just quickly repeat some of the points from Mr.
Wester and Mr. Christensen. From Mr. Wester, he said there is--
Mr. Christensen rather, Phase 3, no evidence--``We uncovered no
evidence of these individuals that used private email
intentionally to circumvent federal recordkeeping
responsibilities.'' Page 4, ``We made five recommendations of
the EPA and the EPA agency reported completed corrective
actions for two in June and July of '13, one in December of
'13, the remaining two recommendations in November and December
2014.'' And finally, the last page, ``The EPA has taken
significant steps to publish policies that address compliance
with NARA and the Federal Records Act requirements. And the
EPA's leadership has shown a commitment to address many of the
problems and weaknesses identified by the OIG.'' And in Mr.
Wester's statement on page 5, ``The EPA has been responsive and
cooperative with NARA staff in these dialogues and has provided
all supplementary information NARA has requested.'' So there is
a lot of good stuff up there.
But in Dr. Schnare's written testimony, the last page, you
say that ``There is no penalty if EPA employees''--``EPA
employees are emboldened to flout FOIA and public record
preservation duties. There is no penalty if they do, and senior
management is pleased when they do. Destroying public records
allows senior management to keep secret its outside contacts
outside the agency, more free to collude with political
advocates, including those who are supposed to be bound by
nonprofit restrictions, disallowing direct lobbying.''
Those are very strong statements, especially that senior
management is pleased. How do you know this as a fact and did
you ever take these to the Inspector General?
Dr. Schnare. I know it is a fact because I am a witness to
some of those statements and that is the kind of thing people
will say at senior levels, including political appointee
levels. You get--when you are as old and gray as I am and you
have been around as long as I have, you know, you do work that
is of a sensitive nature with people at high political office,
and you have loyalty to them and they share statements that
otherwise perhaps they might not have and should not have. And
I am not going to name names here today, but the fact of the
matter is people will say things like, yeah, I got rid of all
of that or they will never find that; I have washed that
machine clean. That happens. It is not frequent and I don't
think you see junior members of EPA do it.
I am very proud of my experience at EPA. I am very proud of
the people at EPA and what they have done, but from time to
time, the culture changes and it did change under the current
Administration.
With respect to making report to the Inspector General, I
have done--from time to time called colleagues of mine in the
office and pointed out things but not on this subject.
Mr. Beyer. Can I ask, Mr. Christensen, you do have a
hotline where people can report these allegations are ongoing?
Mr. Christensen. Yes, the--
Mr. Beyer. Or something like a hotline?
Mr. Christensen. Yes, the OIG does have a hotline run by
our Office of Investigations.
Mr. Beyer. If someone like Dr. Schnare had reported these
things, would you have taken him seriously and investigated
them?
Mr. Christensen. It would have been going into the Office
of Investigations and they would have taken the appropriate
action that they saw fit. It is outside of my office so I don't
oversee that myself.
Mr. Beyer. Dr. Schnare talked about the Richard Windsor/
Lisa Jackson email thing. Did you do any investigation on that
and did you find any violations of federal law or federal
regulation there?
Mr. Christensen. During the audit that we did, the--titled
``Congressionally Requested Inquiry into EPA's Use of Private
and Alias Email Accounts,'' we did come across that and we did
not find any violations, as you saw in the report.
Mr. Beyer. Okay. Mr. Chairman, I yield back. Thank you very
much.
Chairman Loudermilk. Thank you, sir.
I now recognize Mr. Bridenstine of Oklahoma.
Mr. Bridenstine. Thank you, Mr. Chairman.
This is a question for Mr. Wester. In 2011 in a hearing
before the House Oversight Committee Brook Colangelo, who was
then the White House Chief Information Officer, said the
following: ``We have also upgraded our email and Blackberry
servers to improve reliability and we are the first
administration to begin archiving SNS text and pin-to-pin
messages on EOP Blackberry devices.'' The White House CIO made
this statement back in 2011. Have other agencies started to
follow this practice in the four years since then?
Mr. Wester. So what has happened since then--I should say
two things, first, that Mr. Colangelo is operating under the
Presidential Records Acts within the White House, which are
separate laws that govern what goes on in the rest of the
federal government with the Federal Records Act upon which I am
an expert witness in.
The second point I would make is that since that time,
agencies have identified text messaging and instant messaging
along with email management as issues that they needed to
address and have guidance put in place within their agencies so
that they understand what the value of this material is and how
effective it needs to be managed over time. So I would
characterize it more as an emerging issue that needs to be
dealt with first from a policy perspective and then by
implementing technology to make that policy happen within each
of the agencies across the government.
Mr. Bridenstine. Has the EPA implemented these policies?
Mr. Wester. The EPA is in the process of implementing
policies specific to text messaging, and part of what they have
discussed with us and our staff at the National Archives are
the different policies that they are intending to or have
implemented or intend to implement with training and specific
policy guidance on how to identify substantive records versus
transitory records what kind of actions individual EPA
employees need to take to manage those substantive records and
that have enduring or continuing value so that they are
maintained through the end of their retention period.
Mr. Bridenstine. So it would appear that if it is important
for the White House, it would also be important for the EPA, is
that correct?
Mr. Wester. Yes, they are governed by two separate
statutes, but yes.
Mr. Bridenstine. Okay. On your agency's website there is a
frequently-asked-questions section for agency records managers.
Mr. Wester. Um-hum.
Mr. Bridenstine. One of those FAQs is for instant
messaging. The FAQ states, ``Agencies that allow IM traffic,
instant messaging traffic, on their networks must recognize
that such content may be a federal record,'' and it says, ``The
ephemeral nature of IM heightens the need for users to be aware
that they may be creating records using this application and to
properly manage and preserve record content.''
Mr. Wester, EPA has repeatedly told this committee that
text messages are really just ``transitory records'' and
therefore not subject to archiving rules. This FAQ seems to
urge a bit more caution. Isn't it true that the text messages
are just as capable as qualifying as a federal record as any
other electronic communication?
Mr. Wester. The short answer to your question is yes. One
of the things that I tried to reiterate as part of my testimony
is that transitory records have a retention of up to 180 days
so the value of them is generally less than other federal
records, but as it states on our frequently asked questions,
with text messages and instant messaging and other kinds of
more ephemeral--as it is characterized in the FAQ--electronic
communication, that material still needs to be managed as
federal record material if it rises to the level of being a
federal record.
Mr. Bridenstine. So regardless of the medium that the
person uses to communicate, the content is what determines
whether or not is a federal record----
Mr. Wester. Yes, sir.
Mr. Bridenstine. Okay. Is it appropriate for individual
employees to be the arbiter--and this is just for, you know, as
we go forward as a nation, how do we deal with these kind of
activities--for the individual employees to be the arbiter of
what is a record and what is not a record? The individual
employee is responsible for determining that. Is that
appropriate or should--and maybe the Federal Records Act be
updated so that maybe a third party would be responsible for
determining what is a Federal record and what is a personal
record?
Mr. Wester. So right now under the Federal Records Act
individual federal employees, over 2 million of them across the
government, are empowered to make that decision every day based
on their understanding of the work that they conduct and we
expect them to be able to understand the rules and guidance and
make that determination of record versus non-record or record
versus personal material and manage it appropriately.
Over the longer term the archives hopes that technologies
can be brought to bear to do auto categorization using machine
learning and those sorts of things so that we can have these
processes done in an automated way so that we can eliminate the
possibility of human error or other sorts of things that would
possibly--
Mr. Bridenstine. Real quick, last question.
Mr. Wester. Sure.
Mr. Bridenstine. Is it true that under General Record 23
and EPA Schedule 167 that senior officials may not delete
electronic records without permission from NARA?
Mr. Wester. I would have to look at the schedule and get
back to you on that specifically.
Mr. Bridenstine. Okay. I would appreciate that.
Mr. Wester. I will do that. Thank you.
Mr. Bridenstine. Thank you so much. I will yield back.
Chairman Loudermilk. The Chair now recognizes the
gentlewoman from Oregon, Ms. Bonamici.
Ms. Bonamici. Thank you very much, Mr. Chairman. I want to
start by aligning myself with the comments of Ranking Member
Beyer. I do want to point out some concerns, Dr. Schnare, that
you are mentioning, some problems that you observed at the EPA.
I am a little troubled that you did not come forward in an
effective way while you were there but suddenly now are
expressing this concern in a more litigious fashion.
So, Dr. Schnare, I want to have a better understanding of
what hats you are wearing today, who you are working for and
who is funding your organizations. Apparently the financial
disclosure form you filled out for the Committee, it contains
limited conflict-of-interest disclosures but of course we are
big on transparency so please help me understand how you are
supported in your work. So since your retirement you are listed
as a--from the EPA you are listed as a Director for the Center
for Environmental Stewardship at the Thomas Jefferson Institute
for Public Policy, a Director of the Free Market Environmental
Law Clinic, General Counsel for the Energy and Environmental
Legal Institute, past Director of the Occoquan--I hope I said
that right--Watershed Coalition, Chairman of the Coalitions of
Environmental and Land Use Committee, and you are CEO of
Schnare and Associates. So that is quite a list.
So are we leaving out any corporations on which you serve
as an officer or director or employee or any other entities
that were established by you?
Dr. Schnare. No, you are not, although Schnare and
Associates no longer exists; I don't have time for that. The
long list you gave is just a wonderful list of activities that
I have been involved in. For example, in the Thomas Jefferson
Institute for almost two decades I worked with them, all of it
pro bono.
Ms. Bonamici. Terrific. And I wanted to ask you, as Counsel
of the Energy and Environment Legal Institute, so you filed
many lawsuits against the EPA and other agencies and also have
filed public submissions to propose to EPA rulemakings on
behalf of, for example, oil, gas, and mining companies. So have
you been paid for creating and/or filing those submissions?
Dr. Schnare. I am General Counsel for Energy and
Environment Legal Institute. I don't draw a salary. I work pro
bono.
Ms. Bonamici. So you don't receive any legal fees for your
work on these lawsuits?
Dr. Schnare. I don't.
Ms. Bonamici. And how are your various corporations
supported, through contributions or do you sell products or
services?
Dr. Schnare. We don't sell products or services. These are
501(c)(3)'s, which of course can sell products and services but
you have to pay taxes on those. The ones with whom I have been
involved have all been 501(c)(3)'s that do not provide
services.
Ms. Bonamici. Do you receive financial or in-kind support
from foundations or other nonprofits?
Dr. Schnare. Much like every Member behind the dais that is
an elected official, we all get donations and we get donations
from folks in an interesting way. Implied in your question, for
example, is whether there is a quid pro quo for the money we
get, much like your money. When you are given donations, large
donations from single individuals, no one here in this room
would suggest that you were being purchased, that there is a
quid pro quo. Those people donate to you because you take
positions and have views with which they are comfortable and
that they want to see supported, and that is true exactly for
the kinds of--
Ms. Bonamici. I am going to reclaim my time----
Dr. Schnare. --things that we are--
Ms. Bonamici. --and ask Mr. Christensen a question. Thank
you.
Dr. Schnare--Mr. Christensen, Dr. Schnare claims that
senior agency officials were destroying records and interfering
with FOIA requests. So I know your office conducted the
examination of the complaints surrounding former Administrator
Lisa Jackson regarding destruction or withholding of email. So
can you explain to us what your office found? Did you find any
evidence of willful destruction?
Mr. Christensen. As I said in my oral statement, we did not
find any evidence of intentionally destroying.
Ms. Bonamici. And did you find any evidence of a pattern of
encouraging employees for engaging in destruction or
obstruction of records requests?
Mr. Christensen. No, we do not.
Ms. Bonamici. Okay. And, Mr. Wester, I wanted to ask you to
follow up on a comment you made about the work that is being
done to change over to a system that may automatically preserve
records. Can you just--this is a Science, Space, and Technology
Committee. Could you tell us a little bit about that?
Mr. Wester. So one of the things that we are working on at
the National Archives is implementing a policy for managing
email records across the government called Capstone, and what
we are encouraging agencies to do is capture all of their email
records and identifying the level at which above--a certain
line within an agency all of the records are presumptively
permanent and would be eventually transferred to the National
Archives for permanent retention and accessed by the public.
And then beneath that line following this Capstone policy
identifying different shorter-term retentions that still
protect the rights and interests of the government, allow for
agencies to carry out their business on a daily basis, and
protect the rights and interests of citizens, and then be able
to destroy those records after a shorter period of time,
usually somewhere around seven years when there is a statute of
limitations passing.
Ms. Bonamici. Thank you. We look forward to following up
with you on that effort.
And I yield back the balance of my time. Thank you, Mr.
Chairman.
Chairman Loudermilk. Thank you. I now recognize the
Chairman of the full Committee, Mr. Smith from Texas.
Chairman Smith. All right. Thank you, Mr. Chairman. First
of all, I want to thank Dr. Schnare for his replies to some
questions he just had. One, I want to thank you for your pro
bono work. I know that has got to be a sacrifice. And secondly,
I would like to thank you for your trenchant answer and
response to putting contributions in context. I thought that
was exactly right.
Let me address my first question to all three of you and
start with Mr. Wester. And I think a yes-or-no answer will be
fine here. Using a commonsense standard, is it credible that
someone could send 6,000 text messages on an official
Blackberry or later on an official iPhone and that only one of
those text messages would be work-related?
Mr. Wester. I would want to see how--the content, the
structure, and the whole volume of text messages was before I
can make that determination.
Chairman Smith. Right. And I agree with you and that was
the reason for the subpoena, so we could get those records and
determine that exact point.
Mr. Christensen, is it credible?
Mr. Christensen. Again, I would be similar to Mr. Wester
here. I would need to see what the context was a----
Chairman Smith. Okay.
Mr. Christensen. --and we have the audit ongoing and we
have not completed our work on that.
Chairman Smith. Right. I understand that, but just using
the commonsense standard, without saying definitively one way
or the other, is it credible that 6,000 text messages would be
sent that would not be related to work and the messages all
sent on official devices?
Mr. Christensen. I would question it and that would be why
I would want to see the context before I reached a conclusion.
Chairman Smith. Good. I have got two yeses to the subpoena.
And, Dr. Schnare, what do you think?
Dr. Schnare. Let me give you two more. I think that that
level of texting is going to inevitably have something in it,
but I would share with you that Judge Collier, who has to deal
with this matter of law when we brought the matter, made the
comment that he thought it was implausible and so I defer to
the Judge.
Chairman Smith. I like implausible. To me that is a synonym
for incredible or not credible.
And, Dr. Schnare, just to follow up on a couple of other
things, this goes back to your written testimony, and I know
you didn't have time to cover all of your written testimony in
your verbal testimony, but in your written testimony you
indicate that EPA officials ``lack a willingness to properly
search for records when requested to do so. Could you elaborate
on this and tell us what you base your opinion upon?''
Dr. Schnare. Well, I can base it on personal opinion--or
personal experience rather. When I was at the Agency I spent
more time than anyone would like having to respond to civil
discovery and to FOIA, which are quite similar. In two cases I
had FOIA, which I was responsible for the final response, that
required responses from several regional offices, several
offices within the Agency, including the Office of the
Administrator. We were under a time deadline, we had to
communicate with the requester to get additional time, but the
one office that never responded and refused to respond was the
Office of the Administrator.
And my approach to this, the only approach I had available
besides talking directly to the young man who was supposed to
be doing that job, was to go up my own chain of command, which
I did, all the way to the presidential appointee and ask that
he talk to Chief of Staff and shake things up and loosen it up.
The answer I got back unhappily was just let it go.
And so on two occasions we had situations where clearly
there were documents within that office and clearly we weren't
going to get them, and so I was forced to complete and close
out the FOIA request without being able to obtain those
documents.
Chairman Smith. That says a lot. Also in your written
statement you say there is a culture ``to keep secret what
should be available to the public.'' Is this along the same
lines of that personal experience you just recounted?
Dr. Schnare. Yes.
Chairman Smith. And then lastly, you mentioned in your
statement, staff working directly in the Office of the
Administrator simply refused to comply with FOIA. Anything you
want to add to your observations there?
Dr. Schnare. Well, I think I gave you the two examples----
Chairman Smith. Okay.
Dr. Schnare. --to which I was referring.
Chairman Smith. Believe me, that was plenty. Thank you, Dr.
Schnare.
I yield back. Thank you, Mr. Chairman.
Chairman Loudermilk. Thank you, Mr. Chairman.
The Chair now recognizes the gentlewoman from Maryland, Ms.
Edwards.
Ms. Edwards. Thank you very much, Mr. Chairman, and thank
you to our witnesses.
I think today I am just going to focus on Dr. Schnare. And,
Dr. Schnare, I just want to focus not on the Ph.D. part but on
the J.D. part. You are a licensed attorney?
Dr. Schnare. I am. I am licensed in Virginia and the
District of Columbia.
Ms. Edwards. And how long have you been licensed?
Dr. Schnare. Over a decade.
Ms. Edwards. And so when you testify here about things that
other people said and everything, you are probably glad that we
are actually not in a courtroom because a lot of that is just
hearsay, isn't it?
Dr. Schnare. What I observed myself is not and obviously--
--
Ms. Edwards. No, you testified earlier about things that
you heard other people saying or that you knew of other people
saying but not that you heard directly, but never mind that. I
just want to ask you for a moment you also testified that in
the things that you heard that were blatantly illegal, don't
you have an obligation as an attorney? What is your obligation
as a licensed attorney? Because I mean I am not licensed
anymore but I do remember taking the oath. What is your
obligation?
Dr. Schnare. Well, the obligation of any attorney is it to
try to counsel people into the--what is known as the trail of
the law or the path of the law.
Ms. Edwards. No, no, no. You--as a licensed attorney, your
obligation is to the court, to the bench, and in your
profession, your ethical obligation is actually to report that
wrongdoing, isn't it?
Dr. Schnare. Yes, and----
Ms. Edwards. Okay.
Dr. Schnare. --the question is to whom----
Ms. Edwards. So, thank you. You said yes, right?
Dr. Schnare. --so if you report to the--your own chain, you
have done that.
Ms. Edwards. Thank you. Thank you. I don't think so. I
think as a licensed attorney, you have more of an obligation
than that.
I just want to go back to some of the--you referred to
yourself as a climate change skeptic, right?
Dr. Schnare. I have no idea what that has to do with text
messages today but----
Ms. Edwards. Let me just ask----
Dr. Schnare. --that is certainly true.
Ms. Edwards. --it is not up to you to determine what I can
ask you.
You referred to yourself as a climate change skeptic, is
that correct?
Dr. Schnare. Yes.
Ms. Edwards. Right. And so I want to look at something that
I find again on the J.D. part and not on the Ph.D. what is
disserving. In 2011 an attorney representing the University of
Virginia gave sworn testimony regarding a lawsuit you were
involved in surrounding Dr. Michael Mann's emails. That
attorney testified and I want to quote this. ``The fact that
Dr. Schnare has, for whatever reason, felt compelled to make
misleading statements to me about his employment status with
the EPA and demonstrably false statements about his having
obtained requisite approvals to represent the American
Tradition Institute in this lawsuit while still being employed
by the EPA is extremely troubling and has destroyed Dr.
Schnare's credibility in my mind.''
That is from a university--an attorney representing the
University of Virginia that is pretty strong accusations from
the Associate General Counsel at UVA. So how do you actually
represent, Dr. Schnare, an outside client without clearance
from the EPA?
Dr. Schnare. What----
Ms. Edwards. Is that appropriate?
Dr. Schnare. What you do is you get permission, which I had
done and what many employees do. There is a process for getting
and----
Ms. Edwards. So you got permission to represent a client
who was a challenging the--challenging your employer? I find
that really----
Dr. Schnare. No, that is not at all accurate, and those
kinds of inaccuracies from someone who has been a lawyer and an
attorney is disturbing to me.
Ms. Edwards. Oh, you know what, I am just like, you know,
just a regular old street lawyer, you know, so don't hold that
against me.
Let me see. Dr. Schnare, in your original testimony that
you circulated to the Committee, to your credit you did expunge
an element of that testimony that might have defamed an
individual. However, in the original testimony you accuse
someone of not cooperating in the searches of Administrator's
records and admitted that you were aware they had not done
adequate searches. In fact, you wrote, ``In each case I was
forced to respond to the FOIA request without his input despite
knowing that in doing so the responses were legally deficient.
Is it your obligation as an attorney to submit responses
that are legally deficient?
Dr. Schnare. Of course not but that doesn't mean that that
isn't the way it sometimes happens----
Ms. Edwards. So----
Dr. Schnare. --especially when your senior managers----
Ms. Edwards. --let me reclaim my time----
Dr. Schnare. --tell you what to do and how to do it.
Ms. Edwards. --I only have 30 seconds, Dr. Schnare, and it
is not yours. So I just want to be really clear that you have
submitted legally deficient responses, you have misled a
general counsel, you have witnessed wrongdoing and not reported
it. Why is it that someone shouldn't file a claim against you
to have you disbarred and to have your license removed?
With that, I yield the balance of my time.
Chairman Loudermilk. Thank you. And again, we appreciate
the witnesses volunteering your time to come here, and you are
not compelled to answer questions that are outside the scope of
this hearing. We want to make sure the hearing stays focused on
the issue at hand. And again, I want to tell you we appreciate
each and every one of you taking your time to be here.
I now recognize the gentleman from Florida, Mr. Posey.
I recognize the gentleman from Ohio, Mr. Johnson.
Mr. Johnson. Okay. Thank you, Mr. Chairman. You know, I
spent 26-1/2 years in the Air Force and I had--as a commander I
had a lot of opportunities to deal with the Inspector General
on many different occasions and issues, and I have got some
real concerns this morning, Mr. Christensen, that I would like
to address with you.
The EPA Office of Inspector General's September 13, 2013,
report found no evidence that the EPA used, promoted, or
encouraged the use of private nongovernmental email accounts to
circumvent records management. Were you at the EPA at that time
in the Inspector General's Office at the time that
investigation was done?
Mr. Christensen. I was within the EPA when that audit work
was done.
Mr. Johnson. In the Inspector General's Office?
Mr. Christensen. Yes, sir.
Mr. Johnson. Okay. This finding is even more surprising
given that revelation of the use of this secret account led to
both Administrator Lisa Jackson and senior official Scott
Fulton's resignation. What is puzzling to me is learning that
the investigators never actually spoke with Administrator Lisa
Jackson or Scott Fulton, who both were at the EPA when the OIG
received the request for an investigation.
In my experience with the Inspector General, certainly
within the United States Air Force, the veracity of the
investigation and the consequences and the accountability
associated with the findings were taken very, very seriously by
everyone. So why did the OIG fail to interview Administrator
Jackson and Scott Fulton even though they were still at the
agency when the investigation began?
Mr. Christensen. Sir, I was in a different position at that
time and I would have to get back to you----
Mr. Johnson. Okay. Please get back to me.
Mr. Christensen. --because I did not----
Mr. Johnson. How did the EPA Office of Inspector General
conclude that senior officials did not use private or alias
email addresses to circumvent records management without ever
speaking to these individuals? I mean it is pretty common sense
that there is no way they could have, correct?
Mr. Christensen. There could be other evidence but I would
have to get back to you, sir, on that----
Mr. Johnson. Okay. Please get back to me on that.
According to the testimony we have heard this morning, it
appears that the office in charge of FOIA was not aware that
the Richard Windsor email account was associated with
Administrator Lisa Jackson. If this is true, then didn't having
an alias email account violate EPA's own policies about having
an unidentifiable email account? If that is true that that
Richard Windsor account was associated with Administrator
Jackson, didn't that violate EPA's own policies?
Mr. Christensen. I would have to look into that and get
back to you.
Mr. Johnson. Do you know the policy?
Mr. Christensen. I have seen the policy, sir.
Mr. Johnson. As the Assistant Inspector General, if you
know the policy, doesn't that violate the policy? That is a
yes-or-no question.
Mr. Christensen. I would have to get back to you and
confirm.
Mr. Johnson. Okay. Please do that also.
The 2013 report's finding that the EPA did not use private
email to subvert the Federal Records Act also seems
questionable given that Region 9 Administrator Jared Blumenfeld
admitted to having misled your investigators and subsequently
turned over 1,500 pages of emails sent via his private email
account. Are you aware that the Region 9 Administrator Mr.
Blumenfeld admitted that he lied to your investigators about
his use of that private email account for official business?
Mr. Christensen. I have heard that, sir, and it was the
auditors and I think we have heard today that the government
email was cc'ed on----
Mr. Johnson. Do you plan on amending your conclusions in
your report to reflect that evidence?
Mr. Christensen. There is no plan right now, sir.
Mr. Johnson. Why not? Are there no consequences in the EPA
when violations of the EPA's policies are conducted? Why would
you not amend the report?
Mr. Christensen. That report was put out based on what we
had at the time.
Mr. Johnson. I said amendment. I said are you planning on
amending the report?
Mr. Christensen. No, we are not, sir.
Mr. Johnson. You are not? Okay. Well, I have got to
question the veracity of the EPA's OIG operation. When can we
expect you to get back to me on the questions that you said you
would get back to me on?
Mr. Christensen. We will get back to you this week, sir.
Mr. Johnson. Okay. Very good. Thank you very much.
Mr. Chairman, I yield back.
Chairman Loudermilk. Thank you.
And as all Members are aware, there are votes currently
going on on the Floor so this committee will stand in recess
until ten minutes after the last vote.
[Recess.]
Chairman Loudermilk. If everyone will take their seat, we
will reconvene this hearing.
We appreciate your indulgence as we had to go deal with
matters of the State.
At this point the Chair recognizes the gentleman from
Alabama, Mr. Palmer.
Mr. Palmer. Thank you, Mr. Chairman.
Mr. Christensen, I appreciate your willingness to be here
and testify. I appreciate the work that the Inspector General's
Office does. It is absolutely critical to the functioning of
our government. And I just want to ask you, in your work with
EPA have you found them to be forthcoming? I mean when you have
requested documents and other information, have they been
forthcoming with you?
Mr. Christensen. Yes, sir.
Mr. Palmer. Well, I find that interesting considering that
the Inspector General for the EPA was one of 47 Inspectors
General who sent a letter to the Committee on Oversight and
Government Reform complaining that federal organizations,
including the EPA, were impeding investigations by withholding
information. Were you aware of that?
Mr. Christensen. Yes, sir. That was the deal with the CSB
impeding an investigation.
Mr. Palmer. My impression was it wasn't just the CSB but do
you agree with Mr. Elkins' assessment that the EPA was not
forthcoming?
Mr. Christensen. There have been times where the EPA has
not been forthcoming at the beginning but eventually we have
gotten all the documentation.
Mr. Palmer. Now, in regard to the CSB matter, and this is
in the context of the problems with EPA not coming forward, he
said that this impairment by the EPA was ongoing when he
arrived four years ago. Now, this testimony was given September
10, 2014, and he said it is still not resolved. And it seems to
me that there is a culture here of almost, for lack of a better
way to put it, lawlessness.
Mr. Christensen. I believe I stand corrected when I said
CSB earlier. I believe that is with the Office of Homeland
Security, sir, within EPA.
Mr. Palmer. That particular reference was to Homeland
Security; it was also in regard to the CSB. I have got the
testimony right here. And I just want to ask you. Does it not
seem odd that the EPA would in your opinion be cooperative when
they haven't been with other people?
Mr. Christensen. Ultimately, we have--for audits we have
had cooperation ultimately. I think with the testimony you are
talking about was with some of our investigations, which would
be underneath the Office of Investigations.
Mr. Palmer. Okay. Dr. Schnare, in your testimony you talk
about a culture of secrecy, and I just want to read something
here that you said in your written testimony that says EPA
prepared an 83-page PowerPoint presentation on how to use
electronic tools to collaborate with external partners. This
presentation encourages use of instant messaging, other real-
time correspondence tools, and even encourages using AOL and
Yahoo and asking third parties to set up chat rooms, the
purpose of which, according to this was, is that if it--it
encourages employees to help outside parties to sponsor the
web-based collaboration tools, noting that as long as we are
only participants, not administrators of a web collaboration
site, the site is not limited by those same FOIA and Public
Records Act constraints. I can't think of a better word to use
than conspiracy. If you have got a better word for this, it
seems that this is organized in an attempt to keep certain
information from the public and from Congress for that matter.
How do you respond to that?
Dr. Schnare. Congressman, EPA employees, like many
government employees, have the challenge of trying to do their
job, stay on top of new technologies, use everything they can,
and we encourage innovation, but there came a time in the
Agency in 1980 when we had a disagreements within the Agency.
They were kept within the Agency and there was one point, and
then at that point in time after there was a culture shift and
there was a lot of leaking going on, a lot of whistleblowing
without being called a whistleblower, it was a situation in
which younger people at the Agency simply felt they should
speak out on things they cared about personally and they
disregarded the authority and the chain of command. It
happened.
Now, the next change in culture really came with the
current Administration where in fact basically it was Katy bar
the door; we are going to do anything we can. And so what we
ended up seeing is a great deal of we will just keep this to
ourselves.
Mr. Palmer. Well, in regard to the 5,932 emails and the
fact that, as I understand it, there are two months of text
messages that are missing, it kind of begs the question how
much work Ms. McCarthy was able to get done? I mean I don't
think my teenage daughters text that much.
Mr. Chairman, I believe my time is expired. I yield.
Chairman Loudermilk. Since it appears we have a few more
minutes, we will do a short second round. The Ranking Member
has agreed to that.
And with that I will recognize myself for a question.
Mr. Christensen, is there a written policy or an existing
policy within the EPA that regulates or restricts the private
use of cell phone--government/taxpayer-issued cell phone by
employees of the EPA?
Mr. Christensen. Are you talking cell phone usage or with
emails and text messages?
Chairman Loudermilk. Well, since you can use the cell for
text, for email, for all of those, I would anticipate that
whatever policy would cover any use of the cell phone so----
Mr. Christensen. Yes, in June 2013 the records management
policy was amended to include the personal email and private--
from private email, so that would cover the cell phone. Also in
February 2015 the--they amended the records management policy
to cover the text messaging.
Chairman Loudermilk. You say they covered it. What is the
regulation? Does it prohibit? Is there a certain number or
amount that you can use? Specifically getting at----
Mr. Christensen. It doesn't get into anything on the
number. It is just how you would do the records management for
those.
Chairman Loudermilk. So if the information that we are
getting is correct, that for a four-year period that cell phone
in question was used exclusively--text message-wise exclusively
for personal use, you are saying an exclusive personal use of a
cell phone would not violate existing EPA policy?
Mr. Christensen. There was none that I know of but I would
have to get back to you on that, sir.
Chairman Loudermilk. Dr. Schnare, is that a common--in your
experience in the EPA, using a taxpayer-funded device
exclusively for personal use, was that a common practice or was
it known to violate at least common practice or some type of
policy?
Dr. Schnare. Mr. Chairman, the policy is laid out in our
email policy, not in our records management policy. And it is
clear that while there are uses--and this was--this was what
happened when the internet first came in and was used a lot--it
was made clear that the use of email and voiceover protocol and
the like for personal purposes could be done but should not be
the dominant use. And so, yes, you are allowed to do some of
that and it was more on the order of, honey, I am on my way
home or please pick up a loaf of bread, but for the exclusive
use for personal purposes would just be--it is not done that
way. I don't know anyone that would do it that way.
Chairman Loudermilk. Mr. Wester, I know that this is
outside of your purview of the actual regulations, but with
your working with other agencies, have you encountered to where
a public-funded or taxpayer-funded government-issued device was
allowed to be exclusively used for personal use?
Mr. Wester. I am not familiar with anything like that. Most
agencies have appropriate-use policies for different kinds of
office equipment that is given to them, and that is usually
where those kinds of things are covered.
Chairman Loudermilk. Okay. Thank you.
With that, I now recognize Mr. Beyer for five minutes.
Mr. Beyer. Thank you, Mr. Chairman.
Chairman Loudermilk, one thing that I would love to clarify
is that Members from the majority today have made statements
about Lisa Jackson leaving the EPA over the Richard Windsor
email issue, and I just never heard that before on our side and
not necessarily right now but if the majority could share the
source of that information, we would very much appreciate it.
Mr. Christensen, we mentioned the Chemical Safety Board,
the CSB. Is that part of the EPA?
Mr. Christensen. It is not part of the EPA but the EPA OIG
has jurisdiction over the Chemical Safety Board.
Mr. Beyer. So it is your responsibility but it is an
independent agency?
Mr. Christensen. Yes, sir.
Mr. Beyer. So if they have had problems with transparency
and the like, it does not necessarily reflect poorly on the
EPA?
Mr. Christensen. That is correct, sir.
Mr. Beyer. How many employees does the EPA have, Mr.
Christensen?
Mr. Christensen. Just over 15,000 right now, between 15 and
16,000.
Mr. Beyer. I know this is an evolving art but do you have
any idea how many text messages from each employee would be
considered a federal record?
Mr. Christensen. I have no idea on that, sir.
Mr. Beyer. Certainly not every text message, though. I am
just trying--we are trying----
Mr. Christensen. I have no information to respond to that,
sir.
Mr. Beyer. I am trying to do the math on 2009, six years
times 15,000 employees times the number of text messages and
wondering how much time, effort, and money it is going to take
to review all that.
Mr. Christensen. It would be a big effort, sir.
Mr. Beyer. When the GAO and the IG are asked to work
together on the same issue, how do you work that out?
Mr. Christensen. We haven't been asked to work together on
any issue that I know of, sir.
Mr. Beyer. Okay. You have certainly been doing this for a
while. Does the issuance of the subpoena by this committee,
will that interfere in any way with your ability to carry out a
timely investigation?
Mr. Christensen. It shouldn't impact our audit work, sir.
Mr. Beyer. Mr. Chairman, that is all I have so I yield
back.
Chairman Loudermilk. I thank the gentleman and recognize
the gentleman from Texas, Mr. Babin, for five minutes.
Mr. Babin. Thank you, Mr. Chairman.
With an Administration that has claimed that it would be
the most transparent in history, we seem to have a repeated
pattern of the exact opposite. I believe we need a new level of
accountability not only at the EPA but for this entire
Administration.
And, Dr. Schnare, in your opening statement you describe a
culture of secrecy at the EPA. What can be done in the future
to ensure more accountability and transparency in terms of what
the leadership should be telling folks?
Dr. Schnare. I am going to offer you something I have been
thinking about in that regard. I don't believe it is possible
to easily motivate or to alter the culture at the top of an
agency but I do think there are some things that could be put
in place that would have an effect on the career employees who
can actually change the culture on their own.
It is very difficult to reprimand a person for failing to
follow the Freedom of Information Act. They are never credited
for doing a good job; it is just part of that ten percent other
duties as assigned. But I believe that if there were a sanction
that went to the pocketbook of the employee----
Mr. Babin. Yes.
Dr. Schnare. --that said you don't do that job and you
suffer a $5,000 fine out of your own pocket, then the employee
would go up his management chain and say I am not doing that
for you, sir. Ma'am, I am giving these emails away. Because
they are not going to put themselves at risk. And so that is
something that this body would have to look at, what kind of
sanctions would be available, but presently, there really are
none.
Mr. Babin. But you--if I understood you to say the senior
leadership at the agency or any agency for that matter, they
are the ones that need to set the standard and they lead to a
culture of secrecy or not, don't you agree?
Dr. Schnare. Congressman, policy is personnel. There is no
way around it.
Mr. Babin. Right.
Dr. Schnare. It is the people that make the difference. All
I am suggesting to you is that in this town over my last 40
years that is not an approach that I see as very helpful.
People do what they do. But I do think there are ways to get to
it that would have a greater effect by making the public
servants, the people who come into government particularly
because they want to serve and who are honest and good people.
Scott Fulton's name was mentioned earlier today. Scott
Fulton is one of the most honorable men I know. He is a great
guy. What happened and how he was involved in an investigation
I have no idea but I know this: Scott Fulton is not the kind of
guy who would lie, cheat, or steal.
Mr. Babin. Well, and I have heard the opposing side, the
other side today talk about thousands and thousands, the vast
volume of emails or texts. Does that really matter whether it
is a vast volume or whether it is just a few?
Dr. Schnare. Let me just share very simply----
Mr. Babin. It is still a record. It is a record.
Dr. Schnare. That is right. And in a case I brought against
EPA, when we settled the matter, EPA came to me and said as
part of the settlement we are going to require Region 10 to--
every employee in Region 10 to be re-trained on FOIA because
clearly they did not respond adequately in this case. That
wasn't our request and I don't really think it came from EPA. I
think it came from the AUSA who was trying to negotiate a deal.
But the reality is it is up to the individuals to do the
job and you have got to give them the tools. And I credit the
Agency and in particular Larry Gottesman, for doing a wonderful
job in getting the tools available. It is, however, the
culture.
Mr. Babin. All right. Following that up then, during your
time at the EPA, how often was agency staff reminded that what
they were working on could be construed as federal records and
that would need to be preserved? Did you hear this? Did you
experience it?
Dr. Schnare. Well, we had--with some regularity there was
an online training the folks had to do and they do regular
time. Now, at the end of my career I was a lawyer and we had to
do more training than most so I don't know how it reached out
to everyone. But every employee that comes into the agency is
required to get FOIA training. What we found, though, in our
recommendations briefly was that no one remembers it. So when
we built the system to try to help people do it, we helped re-
teach them what their responsibilities were, but that doesn't
reach to text messages, it doesn't reached to clearing out your
own email box for the most part.
Mr. Babin. And it needs to be so.
Dr. Schnare. I agree, sir.
Mr. Babin. Okay. Thank you very much. I yield back, Mr.
Chairman.
Chairman Loudermilk. Thank you, Mr. Babin.
Mr. Palmer. Would you yield the balance of your time?
Chairman Loudermilk. The Chair will recognize Mr. Palmer
for five minutes.
Mr. Palmer. Thank you, Mr. Chairman.
I just want to make a clarification in regard to the
testimony by Arthur Elkins, the Inspector General for the EPA,
that that was specific to the EPA. And I will read from the
testimony a question asked by Congressman John Mica, a
Republican on the Oversight and Government Reform Committee,
and he says this, he says, ``Mr. Elkins, with the EPA it
appears that actions taken by the EPA in really ignoring you
and allowing whistleblowers and others to be intimidated, this
has undermined your position as Inspector General to conduct
your legitimate investigative oversight responsibilities. Would
that be a fair statement?'' Mr. Christensen, I would like to
add this to my comments to you, that Mr. Elkins' response was,
``yeah, that would be a fair statement.''
So in regard to this pattern of obstruction and impeding
investigations, I think it is fairly clear. In regard to the
comments made to Dr. Schnare about coming forward, I think that
when you add to the impeding of information being brought
forward, the withholding of documents and atmosphere of
intimidation, I do believe there is a culture at EPA that needs
to be thoroughly investigated.
I yield the balance of my time.
Chairman Loudermilk. First of all, I want to thank the
witnesses for your attendance here today and your testimony.
There is still a lot that needs to be determined here and
hopefully as we receive the results from our subpoena that we
will be able to continue on.
We would like to in the future have more cooperation out of
these agencies, especially when we are just trying to do the
will of the people and make sure that we are following our own
laws and policies.
The record will remain open for two weeks for additional
written comments and written questions from the Members. This
hearing is adjourned.
[Whereupon, at 12:42 p.m., the Subcommittees were
adjourned.]
Appendix I
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Answers to Post-Hearing Questions
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Answers to Post-Hearing Questions
Responses by Mr. Paul M. Wester, Jr.
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Responses by Mr. Kevin Christensen
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Responses by Dr. David Schnare
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Appendix II
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Additional Material for the Record
McCarthy text
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
EPA Web Collaboration Tools
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senate EPW letter to EPA OIG
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
EPA OIG 2013 report re EPAs Use of
Private and Alias Email Accounts
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senate EPW Minority Report re EPAs FOIA and
Federal Records Failures Uncovered
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
[all]