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The concept of a deep state in the United States is a theory whose adherents believe that there exists a coordinated effort by career government employees to influence state policy without regard for democratically elected leadership.

A search in the Bing search engine revealed about 7.3 million results. If nothing else, recent events have spurred an interest in the “Deep State” term.

Federal Employees and the Deep State

Numerous Twitter “alt” accounts with the name of federal agencies have popped up and many of them have hundreds of thousands of followers. It is doubtful, so far at least, that there is solid evidence current federal employees are involved in distributing information through these accounts, that their actions were on government time using government equipment and that information that is prohibited from being released is being funneled to the public.

The Environmental Protection Agency (EPA) has been an agency cited as having employees with bad morale and engaging in activity designed to thwart the Trump administration from following new priorities. The agency’s budget has been slashed in a recent budget proposal for fiscal year 2018, and some EPA employees could be transferred or lose their jobs as a result.

EPA employees were openly campaigning to prevent Scott Pruitt from becoming the new agency head. The EPA is described in one recent article as “the heartland of the deep state.”

The House Committee on Science, Space and Technology has asked for an investigation by the EPA Inspector General into reports that federal employees at the agency are using an encrypted messaging app to communicate. The committee expressed concern that EPA employees were using a strategy against attempts by new political appointees to undermine the agency’s mission. The House Committee is concerned that these reports, if true, are violating federal record keeping requirements.

Investigation by EPA into Employee Activities

A Freedom of Information Act (FOIA) request was filed by the Cause of Action law firm on February 22nd. The firm writes that within hours after filing a lawsuit on the use of an encrypted messaging program by employees, the EPA responded to the FOIA request.

Cause of Action describes its organization as “a 501(c)(3) public interest law firm which represents pro bono clients in government investigations and litigation…”

The FOIA request was related to activities associated with the “Deep State.” Signal is an encryption program for messages. It uses the Internet to send one-to-one and group messages, including images and video messages. It can also be used for making one-to-one voice and video calls. This is the same program which concerned the House Committee in asking for an investigation.

The FOIA request from Cause of Action requested information, including the following:

All records created or received by any EPA employee on Signal.

All records concerning EPA efforts to retrieve, recover, or retain records created or received by EPA employees on Signal.

In its response, the EPA stated that records created or received by its employees on “Signal,” and records concerning efforts “to retrieve, recover, or retain” those messages, were “part of one or more open law enforcement file(s).”

The agency claimed the records were exempt from disclosure under the Freedom of Information Act (“FOIA”) because they were compiled for “law enforcement purposes” and their disclosure “could reasonably be expected to interfere with ongoing enforcement proceedings.”

The EPA response also noted that it does not have any records regarding giving “permission, clearance, or approval” to EPA employees to use the Signal program or other “instant messaging programs, for the conduct of official EPA business.

Cause of Action Response

The Cause of Action organization indicated in a statement that the lawsuit will proceed.

The EPA’s response to our lawsuit is unsurprising, but still deeply disturbing. The unauthorized use of an encrypted messaging app by a government employee is inappropriate, and the EPA appears to agree that its employees might have broken the law. Although we are pleased to learn that the agency is examining potential wrongdoing, we will continue to fight for the disclosure of records responsive to our FOIA request because we do not agree that the law prohibits the disclosure of the Signal messages. It will be up to the courts to decide.

Federal Records Act and Federal Employee Communication Methods

This event is the latest in a series involving federal employees and covert communications or communicating with personal email accounts regarding government business.

The House Committee on Oversight and Government Reform recently sent letters to 55 federal agencies seeking information on federal employees’ use of unofficial government communication methods.

The Committee is concerned about reports federal workers are using alternate means of communication, including personal email accounts or encrypted messaging applications. If this is done, such as with using a personal email account, the Federal Records Act requires that the employee copy the message to his or her official account within 20 days to preserve the official government record.

What Comes Next?

It is possible some employees are becoming enthralled with using outside sources to work toward personal political goals. The House Oversight Committee is also looking into the protection of classified information. The letter from the Committee to the Inspector General for the Department of Justice notes there have been news reports “recounting potentially classified national security information.” Reports indicated the “National Security Division of the Department of Justice had applied for a warrant from the Foreign Intelligence Surveillance Court to intercept electronic records from Russian banks.” (See Leaking Information, Federal Employees and Political Ideology)

Opinions on whether there is a “Deep State” of federal employees who are working to thwart the priorities and programs of the Trump administration appears to now depend largely on political leanings. Presumably, litigation and investigations such as this effort to obtain information from the EPA or the several investigations requested by Congressional committees will ultimately provide more definitive answers.

EPA Response to FOIA on Use of Encrypted Messaging by Employees by FedSmith, Inc. on Scribd