March 13, 2017

Attorney General Jeff Sessions

U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530

Dear Attorney General Sessions:

Recent history is replete with examples of officials circumventing record preservation

requirements: emails were misplaced or improperly stored by scores of Bush administration
officials, multiple Secretaries of State, a Secretary of Defense, a Secretary of Homeland Security,
an EPA Administrator, and the chair of the Office of Science and Technology Policy, among
others. These lapses occurred despite previous administrations investments in upgrading the
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governments capacity to manage records electronically.

In 2017, people should know better.

Unfortunately, recent reports indicate that the new administration has not learned the lessons of
the past. There are reports that recent appointees continued to rely on non-governmental email
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accounts to conduct official government business after taking office. Indeed, even your own
spokesperson at the Department of Justice reportedly has been using her personal email account
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to conduct official Department of Justice business.

Worse, officials reportedly have begun to rely on encrypted chat programs to conduct official
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business, including programs that delete correspondence immediately after it is read. Just weeks

1
Presidential MemorandumManaging Government Records, 76 Fed. Reg. 75,423 (Nov. 28,
2011), available at https://obamawhitehouse.archives.gov/the-press-office/2011/11/28/presidential-
memorandum-managing-government-records; Office of Mgmt. & Budget, Exec. Office of the
President, Memorandum for the Heads of Executive Departments & Agencies & Independent
Agencies, Managing Government Records Directive, M-12-18 (Aug. 24, 2012), available at
https://www.archives.gov/files/records-mgmt/m-12-18.pdf.
2
See Nina Burleigh, Trump White House Senior Staff Have Private RNC Email Accounts,
NEWSWEEK, Jan. 25, 2017, http://www.newsweek.com/trump-emails-rnc-reince-priebus-white-
house-server-548191.
3
See Edward-Isaac Dovere (@IsaacDovere), Twitter (Mar. 1, 2017, 11:26 PM),
https://twitter.com/IsaacDovere/status/837157240599638016.
4
See, e.g., Jonathan Swan & David McCabe, Confide: The App for Paranoid Republicans, AXIOS
(Feb. 8, 2017), https://www.axios.com/confide-the-new-app-for-paranoid-republicans-
2246297664.html.

American Oversight | 1030 15th Street, NW, Suite B255 | Washington, DC 20005

into the new administration, there are reports of widespread use by White House staff of an
encryption application that defaults to deleting messages after they are read and even makes it
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difficult to preserve messages by way of screenshots.

As you know, the Presidential Records Act requires the President to take all such steps as may be
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necessary to assure that [presidential records] are preserved and maintained . . . The Federal
Records Act similarly requires each agency head to make and preserve records containing
adequate and proper documentation of the organization, functions, policies, decisions, procedures,
and essential transactions of the agency and designed to furnish the information necessary to
protect the legal and financial rights of the Government and of persons directly affected by the
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agencys activities, and to establish and maintain an active, continuing program for the
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management of federal records, including the maintenance of such records. Both statutes, and
the National Archives and Records Administrations implementing regulations, make clear that
these requirements apply to electronic communications regarding presidential and agency business
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that occur on non-official systems.

The use of non-governmental systems to conduct government business presents a serious risk that
appointees will not comply with these statutory requirements for the preservation of federal and
presidential records. The administrations response to date only amplifies those concerns. Despite
categorically denying the accuracy of numerous reports that officials were using such
communication channels, the White House appears not to have undertaken any meaningful
investigation into the improper use of private communication channels to conduct official
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government business, although the White Houses own actions suggest that they believe White
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House staff might be using such communication channels. Given the widespread media reports

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Id.
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44 U.S.C. 2203(a).
7
44 U.S.C. 3101.
8
44 U.S.C. 3102.
9
See 44 U.S.C. 2209 (prohibiting the use of non-official electronic messaging accounts by the
President, Vice President, and covered White House employees unless the message copies an
official account or a complete copy is forwarded within 20 days); 44 U.S.C. 2911(prohibiting the
use of non-official electronic messaging accounts by federal agency employees unless the message
copies an official account or a complete copy is forwarded within 20 days); 36 C.F.R. 1236.22(b)
(Agencies that allow employees to send and receive official electronic mail messages using a
system not operated by the agency must ensure that Federal records sent or received on such
systems are preserved in the appropriate agency recordkeeping system.).
10
See Sheera Frenkel, White House Staff Are Using a Secure App Thats Really Not So Secure,
BUZZFEED NEWS (Feb. 16, 2017, 8:23 PM), https://www.buzzfeed.com/sheerafrenkel/white-house-
staff-are-using-a-secure-app-thats-really-not-so?utm_term=.oaALnvyRY; Andrew Restuccia &
Nancy Cook, Trump Inspires Encryption Boom in Leaky D.C., POLITICO (Feb. 28, 2017, 11:54
AM), http://www.politico.com/story/2017/02/trump-encryption-cybersecurity-leaks-235417.
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Annie Karni, Sean Spicer Targets Own Staff in Leak Crackdown, POLITICO (Feb. 26, 2017, 6:27
PM), http://www.politico.eu/article/sean-spicer-journalists-leaks-crackdown-news-trump-us/; Jeff
Zeleny & Daniella Diaz, Sources: Trump Signed Off on Checking White House Staffers Phones,

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and the White Houses own evident concerns, surely a serious investigation of the use of personal
communication channels to conduct official business is warranted.

In the absence of a well-established, systematic process to ensure that all presidential or agency
communications on non-official electronic messaging accounts are copied or forwarded in
complete form to official accounts consistent with the requirements of 44 U.S.C. 2209 and
2911, the use of personal email accounts or encrypted communications applications to conduct
official government business, whether done for convenience or with the intent to insulate
communications from scrutiny now or in the future, presents a clear, prima facie circumvention of
the law, including the Federal Records Act, the Presidential Records Act, and the Freedom of
Information Act (FOIA). These statutes collectively establish a fundamental principle that the
public owns and has a right to access government records. The use of non-official accounts also
creates a significant risk that government information will be compromised.

Everyone is harmed when officials improperly use private communication channels for public
business. The public loses its right to a complete record of American history; Congress, the media,
law enforcement, and inspectors general lose the raw material to conduct proper oversight; and
agencies lose access to records of their own actions. Officials candid positions on issues of national
importancesuch as health care, immigration, national security, and environmental policyare
hidden from view, forever.

American Oversight is a non-profit organization dedicated to transparency, accountability, and

ethics in government. Our mission is irreparably harmed by the administrations circumvention of
federal record-keeping requirements. Unless this issue is investigated and remedied, American
Oversightand the public more broadlycan have no faith that the searchable public record is
complete, or ever will be.

We call on you to investigate the violations of law occurring on your watch, to ensure that all
records reflecting official government business are properly preserved, and to report publicly on
your findings to the public can have confidence that the administration is not shirking
accountability by hiding its records. For example, it is imperative to know:

What email, chat, or text message, or encrypted communication accounts are senior
officials using to conduct official business?
If non-governmental systems are being used, are officials complying with preservation and
FOIA requirements?
What training have senior officials received concerning the use of non-governmental
systems to conduct official business and what procedures are in place to ensure their
compliance with federal record-keeping laws?
What training have senior officials received concerning FOIA, including whether they must
search non-governmental accounts for responsive material?
How are agencies ensuring that senior officials properly and thoroughly search their files in
response to FOIA and other requests?

CNN, (Feb. 28, 2017, 5:30 AM), http://www.cnn.com/2017/02/27/politics/donald-trump-white-
house-staffer-cell-phones-leaks/.

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 What training and guidance has White House staff received regarding compliance with the
Presidential Records Act?
What violations of the Presidential Records Act were uncovered by the White House Press
Secretarys search of staff telecommunications devices? Have violations of the Federal
Records Act been uncovered at other agencies?
What discipline and/or corrective measures were taken in response to any violations that
were uncovered?

We share a common mission to promote transparency in government. In light of recent reports, it

is incumbent on your office to take steps to ensure that government officials are not undermining
that principle, whether negligently or willfully.

Sincerely,

Austin R. Evers
Executive Director
American Oversight

Cc: The Honorable David S. Ferriero

Archivist of the United States
National Archives and Records Administration
700 Pennsylvania Avenue, N.W.
Washington, D.C. 20408