by Matthew Hardin
FME Law Counsel
E&E Legal recently obtained its first batch of Instant Messaging (IM) records from EPA. While E&E has been trying to obtain IM records from various agencies since 2013, we were never successful until now. Agencies claimed that the records didn’t exist, that the relevant software did not “capture” the messages, or that the Im conversations were not truly “records” within the meaning of federal law. Email correspondence obtained by E&E Legal and others had alluded to IM conversations which would have been responsive to our requests, but the IM conversations were never produced.
Obtaining records other than emails has been a major push for E&E Legal and its attorneys in recent months, because changes in technology have led to increasing amounts of government business being conducted through new types of software. Government employees who in years past would have corresponded via inter-office memos saved in an office filing cabinet are now chatting online or using videoconferencing software. While the law is clear that all records generated on any technology are subject to the Freedom of Information Act, it can be much tougher on a practical level to figure out what technologies bureaucrats are using and how to search them for records that will shine light on their activities.
When Chris Horner caught Lisa Jackson using an alias email address two years ago, our friends at the Competitive Enterprise Institute noted that the earliest emails from Lisa Jackson using her “Richard Windsor” email address referenced a chat technology called “Samtime” which officials at EPA had used to discuss creating the alias email account. This led to subsequent requests and eventually lawsuits from various groups seeking copies of any Instant Messaging records held by EPA. While agency employees referenced chat technologies in email records E&E and others obtained, we were never successful in obtaining records indicating what the bureaucrats were discussing using technology they believed to be more private than emails or other types of correspondence. Followup requests and litigation showed that EPA employees were using practically every option to avoid generating records they believed would be subject to FOIA, from arranging meetings at private coffee shops, to using text messaging to conduct official business.These excuses, while never convincing, now appear to be over. EPA recently changed its website to acknowledge that IM conversations “may” be public records subject to the federal Freedom of Information Act.
From EPA’s Website: Are instant messages (IM) records?
Yes, in certain circumstances. They are similar to e-mail messages; that is, if the messages are needed to substantiate your work, you must treat them the same way you would any e-mail record. You need to capture the text of the message, as well as who the message is to/from and the date and time. Also, due to the informal and sometimes cryptic nature of IM, it may be necessary to transcribe or capture the message in another format much as you would for a telephone conversation or other verbal communication if it is needed to document your activities. And finally, it is important to be careful if you use a non-EPA IM product to communicate with external users because it could result in unauthorized disclosure of information.
Records obtained last month by E&E Legal are significant in that they show EPA employees discussing various energy and work-related matters through EPA’s instant messaging software, rather than online. E&E remains hopeful that EPA’s newfound faith in its own ability to preserve and produce IM records will lead to further insight about how EPA and other federal agencies conduct their day-to-day business. Just as emails changed the way government conducted its day to day operations, instant messaging software has changed how employees at EPA interact with each other and formulate policies.
While software has changed and always will, federal open records laws and E&E Legal’s commitment to transparency in government remain as strong as ever.