March 15, 2019
At a time when President Trump and his administration are busting through virtually every governmental norm and going to great lengths to keep their actions from view, federal recordkeeping laws are one of the best tools to let the public know what the government is up to and provide a safeguard to our history. The Federal Records Act (FRA) and the Presidential Records Act (PRA) have taken on increased importance under this administration, with agencies intentionally not making records that would hold them accountable, and the president deleting official statements from his Twitter. CREW has found new ways to use these laws aggressively and shine a light on behavior that the administration would prefer to remain obscured.
The FRA applies to federal agencies and imposes an obligation to create records that document the agency’s actions and decisions. It prescribes whether and how agency records may be destroyed if they are no longer needed. Most lawsuits under the FRA have focused on record destruction, but CREW has taken advantage of a lesser-known provision of the FRA that requires agencies to affirmatively create records.
Last year, CREW, and the Public Employees for Environmental Responsibility, filed the first case under the FRA’s record-creation provisions against then-EPA Administrator Scott Pruitt and the EPA. We argued that Pruitt’s avoidance of scrutiny by preventing the creation of records that would document his actions violated the FRA. The district court agreed it could hear our claim and had the power to award CREW relief. The lawsuit was dismissed once Pruitt left office in part because EPA’s failure to create records was tied directly to Pruitt himself. However, a recent decision in the case affirmed the need for agencies to create and keep records, which should affect reforms far beyond EPA.
Having established a new path for litigation under the FRA, CREW and immigration rights group, RAICES, filed a lawsuit against the Department of Homeland Security (DHS) and Secretary Nielsen challenging their failure to create records of families separated at the border. Without proper records that enabled the government to match up children with their parents, guardians, or other family members, DHS had no way reunite thousands of children ripped from their families at the border. Last week we filed a motion for a preliminary injunction, asking the Court to order DHS and Secretary Nielsen to stop separating children from their families until they create proper records that can guarantee those families could be reunited.
The PRA applies to the president, vice president, and White House officials that advise them. Like the FRA, the PRA imposes an affirmative obligation on the president to create records that document virtually everything done in office.
The PRA also dictates the process a president must follow to destroy presidential records, which is especially relevant during a presidency where tweets should be treated as presidential statements, but are openly deleted. In the past few months, Trump has deleted tweets from an announcement of a speech in the wrong state, to a tweet about cities suing over the emergency declaration, when it was really states that sued.
The destruction of presidential records goes beyond President Trump’s tweets. Early on in the Trump administration, reports detailed how White House officials were using messaging applications that automatically delete messages. CREW and the National Security Archive sued, arguing use of these apps violates the PRA because there is no decision about whether the message is a presidential record, or whether it can be destroyed. We lost the first round of litigation in district court and the case is now on appeal, and an oral argument was held today before the D.C. Circuit.
With an administration operating in secrecy, records of its actions are more important than ever. Stay tuned for a new PRA lawsuit we expect to file in the near future.