What Happens When Agencies Don’t — or Won’t — Create Records?

The first important thing to know is the Federal Records Act imposes obligations on agency heads to “make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures and essential transactions of the agency.” Moreover, the federal agencies have an affirmative obligation to retain all recorded information—”regardless of form or characteristics”— that was “made or received by a Federal agency under Federal law or in connection with the transaction of public business” and serves as “evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the United States Government….” 44 U.S.C. § 3301 (2012).  A thoroughly-researched memo by the Sierra Club Environmental Law Program details the record retention policies at the Environmental Protection Administration, the Department of Interior, and the Department of Energy.

The New York Times reported1 earlier this month on reports and indications of secrecy at the EPA—including employees sometimes being told not to take notes at meetings.  More troubling for accountability, Administrator Pruitt’s aides recently asked career employees to make major changes in a rule regulating water quality in the United States (Waters of the United States or WOTUS)—without any records of the changes they were being ordered to make.  Citizens for Responsibility and Ethics in Washington (CREW) has noted that “That same rule was initially backed up by an analysis of “the economic benefits of preventing water pollution,” but once Mr. Pruitt decided to reverse the rule EPA “‘economists were verbally told to produce a new study that changed the wetlands benefit[.]’”* 

As the above memo notes, EPA’s records policy covers “all records made or received by EPA employees under federal law or in connection with the transaction of public business, and preserved or appropriate for preservation as evidence of EPA functions, organization and activities or because of the value of the information they contain.”2 Records must be retained if they contain information related to how EPA carries out its mission, such as communicating EPA requirements, or documenting the agency’s
decision-making process.

In a letter to the Archivist of the United States, CREW points out that Mr. Pruitt and EPA “are evading public scrutiny of their decisions by failing to create records in the first place.  Not only are these actions bad from a public policy perspective, but also they appear to violate the FRA requirements to both document and preserve records reflecting essential EPA decisions and policies and how they are made.  Adequate documentation is one of the two main pillars of the FRA; EPA’s failure to create this documentation undermines the goals of the FRA and deprives the public of access to records that document how the agency is fulfilling its statutory mission.”

The letter requests that the Archivist exercise his authority and responsibility under the Federal Records Act to evaluate actions of the U.S. Environmental Protection Agency (“EPA”) and EPA Administrator Scott Pruitt that appear to violate the Federal Records Act, and make recommendations to EPA for their correction and “full compliance with the FRA and inform both the President and Congress of these violations.”

* There is a pattern in this Administration; see White House Blocks Report Showing Societal Benefits of Refugees in the US

1Coral Davenport and Eric Lipton, Scott Pruitt is Carrying Out His E.P.A. Agenda in Secret, Critics Say, New York Times, Aug. 11, 2017 ;  EPA Information Policy, Records Management Policy (dated 7/07/2005),  at 1 – from SCELP Memo3  Id at 3.

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