Politics

Cause of Action Targets CFPB, EPA Feds Using Encryption to Hide Public Docs

Nonprofit seeks documents on federal workers using digital cloaks to conceal work — that the law requires to be open

Agents of the federal government have been sending coded messages to one another, but they aren’t deep-cover spies evading the Russian spooks or transmitting North Korean launch codes.

They are run-of-the-mill bureaucrats who appear to be using digital technology to evade the American people and their representatives in Congress and the White House.

“There’s no elected control if the bureaucrats can have conversations that are not reviewable by elected officials,” said John Vecchione, president and CEO of the Cause of Action Institute (COA). “They can’t control the bureaucracy.”

Vecchione’s group filed a Freedom of Information Act (FOIA) request earlier this week on how many devices being used by Consumer Financial Protection Bureau (CFPB) employees have encrypted messaging applications, along with the policy guidelines governing their use. The FOIA also requests the employees’ messages.

The FOIA requires that all official federal documents, including employee correspondence in whatever format they are created, be available on request to members of the public, subject to only certain exemptions for privacy, national security, and related situations.

COA filed a lawsuit seeking similar information in November against the Environmental Protection Agency.

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The COA request and litigation come as members of Congress are pushing to bring CFPB under congressional oversight, which was not included in the Dodd-Frank Wall Street reform law that established the bureau.

Outgoing CFPB director Richard Cordray was prevented by a federal judge from installing a deputy, paving the way for Office of Management and Budget (OMB) Director Mick Mulvaney to lead the agency temporarily.

Against this backdrop, The New York Times reported Tuesday that bureau employees calling themselves “Dumbledore’s Army” have taken extraordinary measures to communicate without leaving a paper trail.

“An atmosphere of intense anxiety has taken hold, several employees said,” the Times reported. “In some cases, conversations between staff that used to take place by phone or text now happen almost exclusively in person or through encrypted messaging apps.”

That is not how government is supposed to work, said Vecchione. He said Congress needs access to information for oversight and the political appointees of the president need to be in control of setting policy for their departments.

That is not how government is supposed to work, said Vecchione. He said Congress needs access to information for oversight.

“Apparently, there are bureaucrats who did not want to have the bureaucracy controlled by elected members of the other branches,” he said.

Sterling Burnett, a senior fellow on environmental policy at the free market Heartland Institute, said there are legitimate reasons for government secrecy, but there is no justification for it among federal employees working on issues such as environmental policy and regulation.

“We pay for it,” Burnett said. “It’s important to see the information that goes into making these decisions. We are in charge, not the bureaucrats.”

Vecchione said encrypted messages can evade Federal Records Act requirements to preserve official documents. Emails and text messages generally are subject to those requirements, he said.

Related: Mick’s the Man: Judge Sides with Trump in CFPB Dispute

He conceded that it would be difficult to write rules that would prohibit employees from under-the-radar oral communications.

“There is a famous Starbucks near the White House where this is alleged to have happened,” he said. “I’m sure it has.”

Vecchione said it is too soon to guess about how widespread the practice of using apps to send encrypted messages is. He said that will not become apparent until the government responds to Cause of Action’s request.

PoliZette senior writer Brendan Kirby can be reached at [email protected].

(photo credit, homepage image: Environmental Protection Agency & Andrew W. Mellon Auditorium, CC BY 2.0, by Cliff / CFPB, CC BY-SA 2.0, by Ted Eytan; photo credit, article image: Environmental Protection Agency building, CC 0, by USEPA Environmental-Protection-Agency / CFPB, CC BY-SA 2.0, by Ted Eytan)

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