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DESTRUCTION OF RECORDS AT EPA: 

WHEN RECORDS MUST BE KEPT 

JOINT HEARING 

BEFORE THE

SUBCOMMITTEE ON OVERSIGHT & 

SUBCOMMITTEE ON ENVIRONMENT 

COMMITTEE ON SCIENCE, SPACE, AND 

TECHNOLOGY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

MARCH 26, 2015 

Serial No. 114–13 

Printed for the use of the Committee on Science, Space, and Technology 

( 

Available via the World Wide Web: http://science.house.gov 
(II) 

COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY 

HON. LAMAR S. SMITH, Texas, Chair 

FRANK D. LUCAS, Oklahoma 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

DANA ROHRABACHER, California 

RANDY NEUGEBAUER, Texas 

MICHAEL T. MCCAUL, Texas 

STEVEN M. PALAZZO, Mississippi 

MO BROOKS, Alabama 

RANDY HULTGREN, Illinois 

BILL POSEY, Florida 

THOMAS MASSIE, Kentucky 

JIM BRIDENSTINE, Oklahoma 

RANDY K. WEBER, Texas 

BILL JOHNSON, Ohio 

JOHN R. MOOLENAAR, Michigan 

STEVE KNIGHT, California 

BRIAN BABIN, Texas 

BRUCE WESTERMAN, Arkansas 

BARBARA COMSTOCK, Virginia 

DAN NEWHOUSE, Washington 

GARY PALMER, Alabama 

BARRY LOUDERMILK, Georgia 

EDDIE BERNICE JOHNSON, Texas 

ZOE LOFGREN, California 

DANIEL LIPINSKI, Illinois 

DONNA F. EDWARDS, Maryland 

FREDERICA S. WILSON, Florida 

SUZANNE BONAMICI, Oregon 

ERIC SWALWELL, California 

ALAN GRAYSON, Florida 

AMI BERA, California 

ELIZABETH H. ESTY, Connecticut 

MARC A. VEASEY, TEXAS 

KATHERINE M. CLARK, Massachusetts 

DON S. BEYER, JR., Virginia 

ED PERLMUTTER, Colorado 

PAUL TONKO, New York 

MARK TAKANO, California 

BILL FOSTER, Illinois 

SUBCOMMITTEE ON OVERSIGHT

HON. BARRY LOUDERMILK, Georgia, Chair 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

BILL POSEY, Florida 

THOMAS MASSIE, Kentucky 

JIM BRIDENSTINE, Oklahoma 

BILL JOHNSON, Ohio 

LAMAR S. SMITH, Texas 

DON BEYER, Virginia 

ALAN GRAYSON, Florida 

ZOE LOFGREN, California 

VACANT 

EDDIE BERNICE JOHNSON, Texas 

SUBCOMMITTEE ON ENVIRONMENT

HON. JIM BRIDENSTINE, Oklahoma, Chair 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

RANDY NEUGEBAUER, Texas 

RANDY WEBER, Texas 

JOHN MOOLENAAR, Michigan 

BRIAN BABIN, Texas 

BRUCE WESTERMAN, Arkansas 

DAN NEWHOUSE, Washington 

GARY PALMER, Alabama 

LAMAR S. SMITH, Texas 

SUZANNE BONAMICI, Oregon 

DONNA F. EDWARDS, Maryland 

ALAN GRAYSON, Florida 

AMI BERA, California 

DON S. BEYER, JR., Virginia 

VACANT 

EDDIE BERNICE JOHNSON, Texas 
(III) 

C O N T E N T S 

March 26, 2015 

Page 

Witness List ............................................................................................................. 2 

Hearing Charter ...................................................................................................... 3 

Opening Statements 

Statement by Representative Barry Loudermilk, Chairman, Subcommittee 

on Oversight, Committee on Science, Space, and Technology, U.S. House 

of Representatives ................................................................................................ 6 

Written Statement ............................................................................................ 7 

Statement by Representative Donald S. Beyer, Jr, Ranking Minority Member, 

Subcommittee on Oversight, Committee on Science, Space, and Technology, 

U.S. House of Representatives ............................................................................ 8 

Written Statement ............................................................................................ 9 

Statement by Representative Jim Bridenstine, Chairman, Subcommittee on 

Environment, Committee on Science, Space, and Technology, U.S. House 

of Representatives ................................................................................................ 11 

Written Statement ............................................................................................ 12 

Statement by Representative Suzanne Bonamici, Ranking Minority Member, 

Subcommittee on Enviorment, Committee on Science, Space, and Technology, U.S. House of Representatives ............................................................... 12 

Written Statement ............................................................................................ 14 

Statement by Representative Lamar S. Smith, Chairman, Committee on 

Science, Space, and Technology, U.S. House of Representatives ..................... 15 

Written Statement ............................................................................................ 16 

Statement by Representative Eddie Bernice Johnson, Ranking Member, Committee on Science, Space, and Technology, U.S. House of Representatives .... 17 

Written Statement ............................................................................................ 18 

Witnesses: 

Mr. Paul M. Wester, Jr., Chief Records Officer, National Archives and 

Records Administration 

Oral Statement ................................................................................................. 19 

Written Statement ............................................................................................ 22 

Mr. Kevin Christensen, Assistant Inspector General for Audit, Office of Inspector General, Environmental Protection Agency 

Oral Statement ................................................................................................. 29 

Written Statement ............................................................................................ 31 

Dr. David Schnare, Former Sr. Attorney, EPA Office of Enforcement and 

Compliance Assurance; Director, Free-Market Environmental Law Clinic; 

Director, Center for Environmental Stewardship, Thomas Jefferson Institute for Public Policy; General Counsel, Energy & Environment Legal Institute 

Oral Statement ................................................................................................. 38 

Written Statement ............................................................................................ 40 

Discussion ................................................................................................................. 50 
Page

IV 

Appendix I: Answers to Post-Hearing Questions 

Mr. Paul M. Wester, Jr., Chief Records Officer, National Archives and 

Records Administration ....................................................................................... 70 

Mr. Kevin Christensen, Assistant Inspector General for Audit, Office of Inspector General, Environmental Protection Agency .......................................... 80 

Dr. David Schnare, Former Sr. Attorney, EPA Office of Enforcement and 

Compliance Assurance; Director, Free-Market Environmental Law Clinic; 

Director, Center for Environmental Stewardship, Thomas Jefferson Institute for Public Policy; General Counsel, Energy & Environment Legal Institute ........................................................................................................................ 88

Appendix II: Additional Material for the Record 

McCarthy text .......................................................................................................... 112 

EPA Web Collaboration Tools ................................................................................. 116 

Senate EPW letter to EPA OIG re EPA OIG 2013 report ................................... 119 

EPA OIG 2013 report re EPAs Use of Private and Alias Email Accounts ......... 123 

Senate EPW Minority Report re EPAs FOIA and Federal Records Failures 

Uncovered ............................................................................................................. 150 
(1) 

DESTRUCTION OF RECORDS AT EPA: 

WHEN RECORDS MUST BE KEPT 

THURSDAY, MARCH 26, 2015 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON ENVIRONMENT & 

SUBCOMMITTEE ON OVERSIGHT

COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY, 

Washington, D.C. 

The Subcommittees met, pursuant to call, at 10:26 a.m., in Room 

2318 of the Rayburn House Office Building, Hon. Barry Loudermilk 

[Chairman of the Subcommittee on Oversight] presiding. 
2 
3 
4 
5 
6 

Chairman LOUDERMILK. The Committee on Science, Space, and 

Technology joint hearing of the Subcommittee on Oversight and the 

Subcommittee on Environment will come to order. 

Without objection, the Chair is authorized to declare a recess of 

the Committee at any time. 

Good morning, and welcome today to the hearing titled ‘‘Destruction of Records at EPA: When Records Must Be Kept.’’ 

In front of you are packets containing the written testimony, biographies, and Truth in Testimony disclosures for today’s witnesses. 

I recognize myself for five minutes for an opening statement. 

Good morning, everyone. I want to welcome and thank all of our 

witnesses for being here today. As you might know, it was brought 

to this Committee’s attention last fall that the Environmental Protection Agency deleted thousands of text messages that it may have 

needed to preserve as federal records. At that time, EPA spokeswoman Liz Purchia was quoted as saying that, ‘‘The agency maintains that the text messages neither had to be preserved nor were 

subject to disclosure. The text messages can be legally deleted.’’ 

It is stated in the Federal Records Act that the head of each federal agency shall 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 agency’s activities. The Federal Records Act was updated this past September to further clarify that it is the information that is important to preserve and not the medium in which 

that information was created or received. This amendment was put 

into place to ensure that no matter how the information is transmitted in this digital age, if the information qualifies as a federal 

record, it must be preserved as a federal record. 

Further, the EPA’s records management policy approved in 2009 

seems to contradict Ms. Purchia’s statement by noting that each office within the EPA is required to establish and maintain a records 

management program with the following minimum requirements: 

Create, receive, and maintain official records providing adequate 

and proper documentation and evidence of EPA’s activities; manage 

records, in any format, in accordance with applicable statutes, regulations, and EPA policy and guidance; and maintain electronic 

records. 

Considering that approximately 5,000 of EPA’s personnel are 

issued mobile devices by the Agency, we must be certain that the 

policies and procedures in place are strong enough to protect and 

safeguard the text messages that qualify as federal record that may 

be purposefully or even mistakenly deleted. 

This Committee began its investigation into the preservation of 

text messages as federal records last November when it asked the 

EPA Inspector General to look into the matter. Since then, the 

Committee has continued its Congressional oversight of this important matter by trying to work with the EPA to learn more about 

this situation. From the information that the Committee has obtained thus far, it appears that although EPA employees are allowed to use their work phones for text messaging, there are vir-
7 

tually no text messages preserved as federal records. I find this extremely hard to believe. 

What is disappointing to me is that it has been fairly difficult to 

obtain helpful documents from the EPA in order to conduct our investigation since the first letter sent to the Administrator in January. This slow rolling and lack of a complete response is unfortunately not something new to the Committee in its interactions with 

the Administration. It has the unfortunate resemblance to the 

Committee’s obstructed investigation of the role of the U.S. Chief 

Technology Officer with the development and rollout of 

HealthCare.gov. 

As the chairman of this Committee’s Oversight Subcommittee, I 

want to ensure that we restore transparency and accountability 

across the government and this Administration, with today’s focus 

being on the EPA. 

With that, I look forward to today’s hearing where I hope to 

learn from our witnesses more about the policies and procedures 

that have been in place to ensure valuable federal records are preserved. In the end, I would like to know what is being done or what 

can be done to protect the inadvertent or intentional destruction of 

federal records to ensure the highest level of transparency that is 

owed to the American people. 

[The prepared statement of Mr. Loudermilk follows:] 

PREPARED STATEMENT OF OVERSIGHT SUBCOMMITTEE

CHAIRMAN BARRY LOUDERMILK

Good morning everyone. I want to welcome and thank all of our witnesses for 

being here today. 

As you might know, it was brought to this Committee’s attention last fall that 

the Environmental Protection Agency (EPA) deleted thousands of text messages 

that it may have needed to preserve as federal records. At that time, EPA spokeswoman Liz Purchia was quoted as saying that, 

‘‘ . . . the agency maintains that the text messages neither had to be preserved nor 

were subject to disclosure. Text messages can legally be deleted.’’ 

It is stated in the Federal Records Act that, ‘‘The head of each Federal agency 

shall 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 agency’s activities.’’ 

The Federal Records Act was updated this past September to further clarify that 

it is the information that is important to preserve and not the medium in which 

that information was created or received. This amendment was put in place to ensure that no matter how the information is transmitted in this digital age, if the 

information qualifies as a federal record, it must be preserved as a federal record. 

Further, the EPA’s records management policy approved in 2009 seems to contradict Ms. Purchia’s statement by noting that, 

‘‘Each office within EPA is required to establish and maintain a records management program with the following minimum requirements: Create, receive, and maintain official records providing adequate and proper documentation and evidence of 

EPA’s activities; manage records, in any format, in accordance with applicable statutes, regulations, and EPA policy and guidance; and maintain electronic records.’’ 

Considering that ‘‘approximately 5,000 of EPA’s personnel are issued a mobile device by the Agency,’’ we must be certain that the policies and procedures in place 

are strong enough to protect and safeguard text messages that qualify as federal 

record that may be purposefully or even mistakenly deleted. 

This Committee began its investigation into the preservation of text messages as 

federal records last November when it asked the EPA Inspector General to look into 

the matter. Since then, the Committee has continued its Congressional oversight of 
8 

this important matter by trying to work with the EPA to learn more about this situation. From the information that the Committee has obtained thus far, it appears 

that although EPA employees are allowed to use their work phones for text messaging, there are virtually no text messages preserved as federal records. I find this 

extremely hard to believe. 

What is disappointing to me is that it has been fairly difficult to obtain helpful 

documents from the EPA in order to conduct our investigation since the first letter 

sent to the Administrator in January. This slowrolling and lack of a complete response is unfortunately not something new to the Committee in its interactions with 

this Administration. It has the unfortunate resemblance to the Committee’s obstructed investigation of the role of the U.S. Chief Technology Officer with the development and roll-out of HealthCare.gov. 

As the Chairman of this Committee’s Oversight Subcommittee, I want to ensure 

that we restore transparency and accountability across the government and this Administration, with today’s focus being on the EPA. 

With that, I look forward to today’s hearing where I hope to learn from our witnesses more about the policies and procedures that have been in place to ensure valuable federal records are preserved. In the end, I would like to know what is being 

done or what can be done to protect the inadvertent or intentional destruction of 

federal records to ensure the highest level of transparency that is owed to the American people. 

Chairman LOUDERMILK. I now recognize the Ranking Member of 

the Subcommittee on Oversight, the gentleman from Virginia, Mr. 

Beyer, for an opening statement. 

Mr. BEYER. Thank you, Chairman Loudermilk, and thank you for 

coming and testifying with us today. 

I want to make three points this morning in my opening remarks. First: I think we can all agree that federal recordkeeping 

is important and requires some modifications as our modes of communication change. Second: Many people misunderstand or intentionally mischaracterize what constitutes federal recordkeeping. 

And third: We should stick to the facts in the Science Committee, 

of all places, and we should not let intentional mischaracterizations 

color our process or our handling of an allegation. 

So first, we can all be in consensus that it is important to properly preserve government records. We can also agree that we 

should continue to improve the system that allows federal employees to identify and maintain records in accordance with the Federal 

Records Act. If there is a problem, we must correct it. If an agency 

or individual is not properly preserving records, we must acknowledge that and take proper next steps. If federal records have been 

intentionally deleted or destroyed, then individuals should be held 

accountable. But just because a record is deleted does not mean 

that a federal record has been destroyed. 

My second point is that many people, including perhaps Members of Congress, misunderstand what is and is not a federal 

record. This understanding extends to non-transitory records that 

must be collected and preserved, and what constitutes a transitory 

record that does not require preservation. Living in the digital age, 

we all know that we generate far more written communications in 

more forms than ever before. Identifying, collecting and storing all 

the data generated in a federal agency is neither necessary, realistic nor economical. On average, only about ten percent of a federal agency’s data constitutes a federal record. In addition, despite 

some misperceptions, personal emails may be used for official government business provided the record is preserved by cc’ing it to 

the agency email address. 
9 

Now to the third point: We should not engage in 

mischaracterizations. And if others do, we should not encourage or 

celebrate these mischaracterizations. In September 2013 the EPA 

IG’s office released a report titled: ‘‘Congressionally Requested Inquiry Into the EPA’s Use of Private and Alias Email Accounts.’’ 

This was requested by Chairman Smith and others, but some 

Members of Congress publicly mischaracterized the findings of the 

IG, making false accusations as a result. In one instance, some 

claimed that a specific EPA Regional Administrator lied to OIG investigators and used his private email to conduct agency business. 

What was not realized, and was not acknowledged, was that this 

practice is permitted under the Federal Records Act. In fact, in the 

OIG’s lengthy public response to set the record straight, they noted 

that the EPA official had cc’d all of his work-related records from 

their private email to their government epa.gov account, and that 

rather than lying to the OIG investigators that the individual’s 

‘‘statement to the OIG was corroborated by the emails obtained by 

the OIG.’’ 

These sorts of sweeping and false characterizations are troubling, 

and I point to them because I am deeply concerned by the written 

testimony I read earlier by Dr. David Schnare for this hearing 

today. His testimony alleges that senior EPA officials, including 

Administrator Gina McCarthy, have ‘‘blatantly violated the Federal 

Records Act, intentionally not followed the law and kept Agency 

records secret in order to conceal contacts with individuals or 

groups outside the Agency.’’ Dr. Schnare has made unsupported 

and sweeping allegations against the EPA in the past also. I am 

attaching to my statement four documents related to a 2012 lawsuit filed by Dr. Schnare against the EPA accusing the Agency, and 

its then-Administrator Lisa Jackson, of participating in human experiments he likened to horrific experiments conducted by Nazi 

doctors on prisoners in concentration camps during World War II 

and claimed the EPA was using ‘‘secret gas chambers’’ to conduct 

these studies on airborne particulate matter. The case was dismissed after Dr. Schnare’s lawsuit resulted in multiple newspaper 

headlines, such as these: ‘‘EPA’s secret gas chamber experiments: 

A deceitful failure,’’ and ‘‘EPA charged with lethal experiments on 

hundreds of unsuspecting subjects.’’ If there are legitimate issues 

with EPA recordkeeping or the processing of FOIA requests, then 

let us look at these issues and let us address them in a serious 

way, and I am happy to work with my colleagues on both sides of 

the aisle in a productive way to do so. We have the reasoned and 

careful testimony of the EPA Inspector General’s office and the National Archives, and there is little there to turn into sensational 

headlines, and I commend these testimonies to my colleagues’ attention as being educational and fact-based. 

Mr. Chair, I yield back. 

[The prepared statement of Mr. Beyer follows:] 

PREPARED STATEMENT OF SUBCOMMITTEE ON OVERSIGHT

MINORITY RANKING MEMBER DONALD S. BEYER, JR. 

Good morning! 

I want to make three points this morning in my opening remarks. 
10 

First: I think we can all agree that federal recordkeeping is important AND requires some modifications as our modes of communication change. 

Second: Many people misunderstand or intentionally mischaracterize what constitutes federal recordkeeping. 

And third: We should stick to the facts in the Science Committee of all places, 

and we should not let intentional mischaracterizations color our process or our handling of an allegation. 

So first: We can all be in consensus that it is important to properly preserve government records. We can also agree that we should continue to improve the system 

that allows federal employees to identify and maintain records, in accordance with 

the Federal Records Act. 

If there is a problem, we must correct it. If an agency or individual is not properly 

preserving records, we must acknowledge that and take proper next steps. If federal 

records have been intentionally deleted or destroyed, then individuals should be 

held to account. But just because a record is deleted does not mean that a Federal 

Record has been destroyed. 

My second point is that many people, including perhaps Members of Congress, 

misunderstand what is and is not a Federal Record. This understanding extends to 

‘‘non-transitory’’ records that must be collected and preserved, and what constitutes 

a ‘‘transitory’’ record that does not require preservation. Living in the digital age 

we all know that we generate far more written communications in more forms than 

ever before. Identifying, collecting and storing ALL the data generated in a federal 

agency is neither necessary, realistic nor economical. On average, only about 10 percent of a federal agency’s data constitutes a federal record. In addition, despite some 

misperceptions, personal e-mails may be used for official government business provided the record is preserved by cc’ing it to your agency email address. 

Now to the third point: We should not engage in mischaracterizations. And if others do, we should not encourage or celebrate these mischaracterizations. 

In September 2013 the EPA IG’s office released a report titled: Congressionally 

Requested Inquiry Into the EPA’s Use of Private and Alias Email Accounts. Chairman Smith and others requested that investigation. But some Members of Congress 

publicly mischaracterized the findings of the IG, making false accusations as a result. In one instance, some claimed that a specific EPA Regional Administrator lied 

to OIG investigators and used his private email to conduct agency business. What 

was not realized, or was not acknowledged, was that this practice is permitted 

under the Federal Records Act. In fact, in the OIG’s lengthy public response to set 

the record straight they noted that the EPA official had cc’d all of their work related 

records from their private email to their government ‘‘epa.gov’’ account and that 

rather than lying to the OIG investigators that the individual’s ‘‘statement to the 

OIG was corroborated by the emails obtained by the OIG.’’ 

These sorts of sweeping and false characterizations are troubling and I point to 

them because I am deeply concerned by the written testimony submitted by Dr. 

David Schnare for this hearing today. His testimony alleges that senior EPA officials, including Administrator Gina McCarthy, ‘‘have blatantly violated the Federal 

Records Act,’’ intentionally not followed the law and kept Agency records ‘‘secret’’ 

in order to conceal contacts with individuals or groups outside the Agency. Dr. 

Schnare has made unsupported and sweeping allegations against the EPA in the 

past too. I am attaching to my statement four documents related to a 2012 lawsuit 

filed by Dr. Schnare against the EPA accusing the Agency, and its then-Administrator Lisa Jackson, of participating in human experiments he likened to horrific experiments conducted by Nazi doctors on prisoners in concentration camps during 

World War II and claimed the EPA was using ‘‘secret gas chambers’’ to conduct 

these studies on airborne particulate matter. The case was dismissed after Dr. 

Schnare’s lawsuit resulted in multiple newspaper headlines, such as these: ‘‘EPA’s 

secret gas chamber experiments: A deceitful failure,’’ and ‘‘EPA Charged With Lethal Experiments on Hundreds of Unsuspecting Subjects.’’ 

If there are indeed legitimate issues with EPA record keeping or the processing 

of FOIA requests, then let us look into those issues and address them. I am happy 

to work with my colleagues in a productive way to do so. However, I do not believe 

it is productive to allow someone who shows such disregard for the facts to testify. 

It does not lend to the credibility of this hearing or this In contrast, I look forward 

to the reasoned and careful testimony of the EPA Inspector General’s office and the 

National Archives. There is little there to turn into sensational headlines, but I commend those testimonies to my colleagues’ attention as being educational and factbased. 

I yield back. 
11 

Chairman LOUDERMILK. Thank you, Mr. Beyer, and I appreciate 

that, and it is the intention of this Subcommittee to look into this 

matter, and cooperation by the Agency is one of the things that 

would be very helpful, and that is what we are seeking to do. 

At this point I now recognize the chairman of the Subcommittee 

on Environment, the gentleman from Oklahoma, Mr. Bridenstine, 

for an opening statement. 

Mr. BRIDENSTINE. Thank you, Chairman Loudermilk, and thank 

you for your leadership on this issue. I would also like to thank 

Chairman Lamar Smith for his leadership on this very important 

issue. Welcome to all of our witnesses, and thank you for being 

with us today. 

Time and time again, we have seen the Environmental Protection Agency use the regulatory process to increase the federal government’s authority and bypass Congressional intent at the expense of states’ rights. The EPA’s regulations have an enormous 

cost, stifling businesses, destroying jobs, and increasing the cost of 

living for Americans, especially those in my district. The EPA 

seems to believe it should be able to operate without oversight. 

Just last week, this Committee helped usher through the House 

two bills that would simply require greater transparency and more 

balanced and public input into EPA’s rulemaking processes. Unfortunately, the President has threatened to veto both bills. 

Today’s hearing topic covers the same unfortunate theme. Federal archiving laws exist, as the Federal Records Act states, ‘‘to 

protect the legal and financial rights of persons directly affected by 

the agency’s activities.’’ And I can tell you in my home State of 

Oklahoma, in my constituency, there are many people directly affected by the Agency’s activities. However, the EPA would have us 

believe that despite the fact that thousands of text messages are 

being sent and received, virtually none is important enough to 

qualify as a federal record and require preservation, and therefore 

can be deleted by the individuals sending and receiving them. 

If we, as representatives of the American people, people who are 

directly affected by EPA’s activities, are not provided with the information necessary to verify that the agency’s practices are fulfilling both the letter and the spirit of the law, how can we know 

that the agency isn’t getting rid of the very records it is required 

to preserve? EPA is once again refusing to comply with the Committee’s requests, necessitating the chairman’s issuance of a subpoena yesterday to compel production. EPA’s refusal to turn over 

records and documents is yet another example of the lack of accountability and transparency that has become a hallmark of this 

agency in its dealings with Congress. 

We here in the House are not alone. Members of the public who 

request information can expect the same. The Center for Effective 

Government recently released a report grading federal agencies on 

how responsive they are to FOIA requests; the EPA received a D. 

Again, I believe that we here in Congress have a responsibility, on 

behalf of the people we represent, to oversee the actions of agencies 

like the EPA. This is important when those actions have such significant impacts on all of us, and particularly the impacts in my 

State of Oklahoma. The EPA has a responsibility and an obligation 

to provide the information we have requested. 
12 

I thank the witnesses for being with us today and I look forward 

to your testimony. I yield back. 

[The prepared statement of Mr. Bridenstine follows:] 

PREPARED STATEMENT OF SUBCOMMITTEE ON ENVIRONMENT

CHAIRMAN JIM BRIDENSTINE

Time and time again, we have seen the Environmental Protection Agency, use the 

regulatory process to increase the federal government’s authority and bypass Congressional intent, at the expense of states’ rights. The EPA’s regulations have an 

enormous cost, stifling businesses, destroying jobs, and increasing the cost of living 

for Americans. 

The EPA seems to believe it should be able to operate without oversight. Just last 

week, this Committee helped usher through the House two bills that would simply 

require greater transparency and more balanced and public input into EPA’s rulemaking processes. Unfortunately, the President has threatened to veto both bills. 

Today’s hearing topic covers the same unfortunate theme. Federal archiving laws 

exist, as the Federal Records Act states, ‘‘to protect the legal and financial rights 

. of persons directly affected by the agency’s activities.’’ However, the EPA would 

have us believe that despite the fact that thousands of text messages are being sent 

and received, virtually none is important enough to qualify as a federal record and 

require preservation, and therefore can be deleted by the individuals sending and 

receiving them. 

If we, as representatives of the American people, people who are directly affected 

by EPA’s activities, are not provided with the information necessary to verify that 

the agency’s practices are fulfilling both the letter and the spirit of the law, how 

can we know that the agency isn’t getting rid of the very records it is required to 

preserve? 

EPA is once again refusing to comply with the Committee’s requests, necessitating the Chairman’s issuance of a subpoena yesterday to compel production. 

EPA’s refusal to turn over records and documents is yet another example of the 

lack of accountability and transparency that has become a hallmark of this agency 

in its dealings with Congress. We here in the House are not alone; members of the 

public who request information can expect the same. The Center for Effective Government recently released a report grading federal agencies on how responsive they 

are to FOIA requests, and the EPA received a ‘‘D.’’ 

Again, I believe that we here in Congress have a responsibility, on behalf of the 

people we represent, to oversee the actions of agencies like the EPA. This is important when those actions have such significant impacts on all of us, and particularly 

on my home state of Oklahoma. The EPA has a responsibility and an obligation to 

provide the information we have requested. I thank the witnesses for being with us 

today and look forward to their testimony. 

Chairman LOUDERMILK. Thank you, Mr. Bridenstine. 

I now recognize the Ranking Member of the Subcommittee on 

Environment, the gentlewoman from Oregon, Ms. Bonamici, for her 

opening statement. 

Ms. BONAMICI. Thank you very much, Mr. Chairman. 

As someone who strongly believes in transparent government, I 

would certainly take issue with any government agency unlawfully 

destroying records. I do want to point out, however, that the title 

of today’s hearing, ‘‘Destruction of Records at EPA—When Records 

Must Be Kept,’’ makes it appear that we have reached a verdict before we have examined the evidence. Given that the EPA Inspector 

General is beginning an investigation into this issue at the request 

of Chairman Smith, it would have been more prudent to wait until 

the investigation had came back with to report before holding this 

hearing. 

And just yesterday, the chairman issued a subpoena to Administrator McCarthy requiring that the Agency turn over billing 

records and text messages, without redaction, for the past six 

years. The EPA has been responsive to numerous Committee re-
13 

quests for information on this topic, so the issuance of this subpoena seems premature and hard to justify. 

Nevertheless, I am pleased that both the EPA’s Assistant Inspector General and the Chief Records Officer of the National Archives 

and Records Administration are here today to provide us with some 

background on the preservation of federal records. I am also interested in reviewing the actions taken by EPA in response to the Inspector General’s 2013 report on the Agency’s email practices. It is 

my understanding that the EPA steadfastly maintains that the 

Agency did not circumvent federal record management responsibilities, a claim that was validated by the 2013 report, and reiterated 

in a letter to our Senate colleagues in 2014. I am attaching both 

the report and the letter to my statement. 

In this modern age of rapid, often electronic communication, important questions are rightly raised about the nature of federal 

records. Is a note passed between colleagues at a meeting a federal 

record? Does it depend on what it says? What about a text message 

from an assistant to a supervisor about ordering the donuts for a 

breakfast meeting? 

The process of conducting business within the government is 

complex and nuanced, and it stands to reason that the law governing the retention and preservation of the records of such business is equally nuanced. Both the Federal Records Act and the National Archives and Records Administration Act provide guidance 

on how such items should be preserved and when they can properly 

be destroyed. 

Now, having had an opportunity to review the testimony, I am 

somewhat puzzled about part of the hearing today. It is easy to understand why both the EPA IG and NARA have been asked to testify, but I do hope we get clarification about what Dr. Schnare’s 

role is here today. Is he here as General Counsel of E&E Legal, the 

group that apparently sent the FOIA request to the EPA asking for 

text messages? I see that Dr. Schnare says he has years of experience responding to FOIA requests, but is he here claiming to be an 

expert on record retention? 

Also, Dr. Schnare’s testimony in places is quite accusatory, and 

I do hope that any opinions are clearly conveyed as just that: opinions. For example, in the place in the testimony when Dr. Schnare 

states, ostensibly as fact, that EPA senior management is ‘‘pleased’’ 

when they allegedly destroy public records. So I acknowledge Dr. 

Schnare is a lawyer and a Ph.D., but he is neither judge nor jury. 

So I will be listening carefully, as I hope all Members will do, to 

determine what specific evidence is provided to support such serious accusations. 

Now, make no mistake: willfully and unlawfully destroying or deleting, or attempting to destroy or delete federal records carry severe fines and sometimes prison terms, and I am wholly supportive 

of efforts to ensure the proper preservation of government records, 

and equally supportive of holding accountable those who have intentionally and unlawfully destroyed federal records. But let us not 

be quick to condemn until we have fully understood if the obligations and actions were consistent with the law. 

Thank you, Mr. Chairman, and I yield back the balance of my 

time. 
14 

[The prepared statement of Ms. Bonamici follows:] 

PREPARED STATEMENT OF SUBCOMMITTEE ON OVERSIGHT

MINORITY RANKING MEMBER SUZANNE BONAMICI

Thank you Mr. Chair. As someone who strongly believes transparent government, 

I would certainly take issue with any government agency unlawfully destroying 

records. However, the title of today’s hearing, ‘‘Destruction of Records at EPA - 

When Records Must Be Kept,’’ makes it appear that we have reached a verdict before we have examined any evidence. 

Given that the EPA Inspector General is just beginning an investigation into this 

issue at the request of Chairman Smith, it would have been more prudent to wait 

until the investigation had something to report before holding this hearing. 

Just yesterday, the Chairman issued a subpoena to Administrator McCarthy requiring that the Agency turn over billing records and text messages, without redaction, for the past six years. EPA has been responsive to the numerous Committee 

requests for information on this topic, so the issuance of this subpoena seems quite 

premature and hard to justify. Nevertheless, I am pleased that both the EPA’s Assistant Inspector General and the Chief Records Officer of the National Archives 

and Records Administration are here today to provide us with some background on 

the preservation of federal records. I am also interested in reviewing the actions 

taken by EPA in response to the Inspector General’s 2013 report on the Agency’s 

emailpractices. 

It is my understanding that EPA steadfastly maintains that the Agency did not 

use private or secondary emails to circumvent federal record management responsibilities, a claim that was validated by the 2013 report, and reiterated in a letter 

to our Senate colleagues in 2014. I am attaching both the report and the letter to 

my statement. 

In this modern age of rapid, often electronic communication, important questions 

are rightly raised about the nature of federal records. Is a note passed between colleagues at a meeting a federal record? What about a text message from an assistant 

to a supervisor about ordering donuts for a breakfast meeting? The process of conducting business within the government is complex and nuanced, and it stands to 

reason that the law governing the retention and preservation of the records of such 

business is equally nuanced. Both the Federal Records Act and NARA provide guidance on how such items should be preserved and when they can properly be destroyed. 

Having had an opportunity to review the testimony, I am somewhat puzzled about 

why we are hearing from one of the witnesses called to this hearing. It is easy to 

understand why both the EPA IG and NARA have been asked to testify. But I’m 

wondering what Dr. Schnare’s role is today. Is he here as General Counsel of E&E 

Legal, the group that apparently sent the FOIA request to the EPA asking for text 

messages? I see that Dr. Schnare says he has years of experience responding to 

FOIA requests, but is he here claiming to be an expert on record retention? His testimony is quite accusatory; I do hope that any opinions are clearly conveyed as just 

that—opinions—like the place in the testimony when Dr. Schnare state, ostensibly 

as fact, that EPA senior management is ‘‘pleased’’ when they allegedly destroy public records. 

And I am already concerned based on the written testimony that some of these 

accusations could be considered defamatory. Dr. Schnare is a Phd and a lawyer, but 

he is neither judge nor jury. 

I will be listening carefully, as I hope all members will do, to determine what specific evidence Dr Schnare has to support such serious accusations. Make no mistake: 

willfully and unlawfully destroying or deleting, or attempting to destroy or delete, 

federal records carry severe fines and prison terms. I am wholly supportive of efforts 

to ensure the proper preservation of government records, and equally supportive of 

holding accountable those who have intentionally and unlawfully destroyed federal 

records. But let us not be quick to condemn until we have fully understood if the 

obligations and actions were consistent with the law. 

I yield back. 

Chairman LOUDERMILK. Thank you, Ms. Bonamici, and let me remind the Members of this hearing that the evidence is that text 

messages were in fact deleted, which was confirmed by the EPA. 

At this point I recognize the chairman of the full Committee, Mr. 

Smith. 
15 

Chairman SMITH. Thank you, Mr. Chairman, and let me add my 

thanks to yours for our expert testimony today. We really do appreciate all three of you all being here, and you have much to contribute, and we will get to questions and answers in a few minutes. 

Mr. Chairman, this Committee often addresses technical and scientific integrity standards. However, in the past few years, the 

Committee has had to repeatedly examine the standard of transparency and accountability. Unfortunately, certain agencies and 

federal officials have failed to meet it. 

We have seen a disregard for agency transparency several times 

in recent years across the federal government such as with Lois 

Lerner’s IRS targeting controversy and Hillary Clinton’s secret 

server issue. 

We have also seen this within the agencies under this Committee’s jurisdiction. There have been transparency issues at the EPA 

going back as far as the Clinton Administration, and just this past 

year, a federal judge held the EPA in contempt for disregarding a 

court order not to destroy records. In that case, former EPA Administrator Carol Browner asked an employee to delete all her as well 

as other senior officials’ computer files as a new Administration 

was about to take over. Her excuse was that she wanted to have 

some games removed from her computer. Yes, she was undoubtedly 

playing games. 

Not long after the contempt finding, reports surfaced that EPA 

Administrator Lisa Jackson created a secret email account under 

the pseudonym Richard Windsor in an apparent attempt to conceal 

emails. It has been reported that this led to her resignation. 

At the EPA, lack of transparency is even more pronounced when 

coupled with the EPA’s use of secret science to justify costly regulations. What is clear is that this Administration has failed to meet 

its promise of being the most transparent in American history. We 

would settle for just plain transparent. 

Recently, a majority—listen to this—a majority of the Inspectors 

General signed a letter to the Administration criticizing its lack of 

cooperation in providing public documents, and many in the media 

say that this Administration is the least forthcoming they can remember. 

Today the Committee once again examines the EPA’s practices 

for the preservation of federal records and how they may reflect 

how this Agency makes its decisions on scientific issues. Last year, 

the Committee learned that since 2009, the current EPA Administrator Gina McCarthy has deleted thousands of text messages from 

her official mobile device. The EPA claims that these text messages 

are all of a personal nature and therefore not subject to the Federal 

Records Act. But it is simply not believable that of the almost 6,000 

text messages between 2009 and 2013 and many since, that only 

one was related to EPA business. The single text message produced 

by EPA was received at the start of this year. This was months 

after the EPA Office of Inspector General began its investigation 

and within days of receiving a letter of inquiry from this Committee. While Committee staff has repeatedly asked for certain 

unredacted documents that the EPA has already collected under a 

FOIA request, the EPA has failed to turn over these documents. 
16 

This pattern of withholding, concealing, and destroying records 

must stop. 

The American people deserve an open and transparent government. This firm belief in transparency and the disappointing response to this Committee’s request from the EPA compelled the 

Committee to authorize a subpoena yesterday. This stonewalling 

and slow-rolling of documents in response to Congressional requests must end. Americans deserve to have the facts. 

I hope, Mr. Chairman, that today’s witnesses will provide additional information crucial to this investigation, and I will yield 

back the balance of my time. 

[The prepared statement of Mr. Smith follows:] 

PREPARED STATEMENT OF FULL COMMITTEE CHAIRMAN LAMAR S. SMITH

Thank you, Chairman Loudermilk, for holding this hearing. I also thank the witnesses for being here today to provide their valuable testimony. 

This Committee often addresses technical and scientific integrity standards. However, in the past few years, the Committee has had to repeatedly examine the standard of transparency and accountability. Unfortunately, certain agencies and federal 

officials have failed to meet it. 

We have seen a disregard for agency transparency several times in recent years 

across the federal government—such as with Lois Lerner’s 11IRS targeting controversy’’ and Hillary Clinton’s ‘‘secret server’’ issue. 

We have also seen this within the agencies under this Committee’s jurisdiction. 

There have been transparency issues at the EPA going back as far as the Clinton 

Administration. And just this past year, a federal judge held the EPA in contempt 

for disregarding a court order not to destroy records. In that case, former EPA Administrator Carol Browner asked an employee to delete all her as well as other senior officials’ computer files as a new Administration was about to take over. Her excuse was that she wanted to have some ‘‘games’’ removed from her computer. Yes 

she was undoubtedly playing games. 

Not long after the contempt finding, reports surfaced that EPA Administrator 

Lisa Jackson created a secret email account under the pseudonym ‘‘Richard Windsor’’ in an apparent attempt to conceal emails. It has been reported that this unfortunate incident lead to her resignation. 

At the EPA, lack of transparency is even more pronounced when coupled with the 

EPA’s use of ‘‘secret science’’ to justify costly regulations. What is clear is that this 

Administration has failed to meet its promise of being the most transparent in 

American history. We would settle for just plain transparent. 

Recently, a majority of Inspectors General signed a letter to the Administration 

criticizing its lack of cooperation in providing public documents. And many in the 

media say that this Administration is the least forthcoming they can remember. 

Today the Committee once again examines the EPA’s practices for the preservation of federal records and how they may reflect how this Agency makes its decisions on scientific issues. 

Last year, the Committee learned that since 2009, the current EPA Administrator 

Gina McCarthy has deleted thousands of text messages from her official mobile device. The EPA claims that these text messages are all of a personal nature and 

therefore not subject to the Federal Records Act. But it is not believable that of the 

almost 6,000 text messages between 2009 and 2013 and many since, that only one 

was related to EPA business. The single text message produced by EPA was received at the start of this year. This was months after the EPA Office of Inspector 

General began its investigation and within days of receiving a letter of inquiry from 

this Committee. 

While Committee staff has repeatedly asked for certain unredacted documents 

that the EPA has already collected under a FOIA request, the EPA has failed to 

turn over these documents. This pattern of withholding, concealing, and destroying 

records must stop. The American people deserve an open andtransparent government. 

This firm belief in transparency and the disappointing response to this Committee’s request from the EPA compelled the Committee to authorize a subpoena yesterday. This stonewalling and slow-rolling of documents in response to Congressional requests must end. Americans deserve to have the facts. 
17 

I hope that today’s witnesses will provide additional information crucial to this 

investigation. 

Chairman LOUDERMILK. Thank you, Mr. Chairman. 

I now recognize the Ranking Member of the full Committee, Ms. 

Johnson. 

Ms. JOHNSON. Thank you very much, Mr. Chairman. 

I learned yesterday that the chairman of the full Committee 

issued a subpoena to the Environmental Protection Agency for documents related to allegations of text and email messages being deleted at EPA. When the Committee adopted the new subpoena 

rules at the beginning of this Congress, he assured the Minority 

that when he issued a subpoena, it would not come as a surprise. 

Yesterday we saw the first subpoena go out, and let me assure you 

that we were surprised. 

As we understand it, the chairman sent two letters asking for 

documents, one on January 27, 2015, and one on March 6, 2015. 

EPA was in the process of producing records responsive to these 

two requests, which had different scopes, over the last two weeks. 

Just Friday, EPA sent an email to the Majority that read, in part, 

‘‘I do want to emphasize our strong desire to continue to work with 

the Committee in a cooperative manner.’’ Then five days later, on 

March 25th, the chairman issued his subpoena. 

It is a longstanding tradition in relations between the Legislative 

and Executive branches that there is an expectation that the two 

sides will accommodate the legitimate needs of each other in struggles over documents. And the fact of the matter is that EPA was 

complying with the Committee’s request, consistent with their responsibility to try to protect the Administrator’s privacy regarding 

personal contact and billing information. This subpoena was thus 

entirely unnecessary from an oversight perspective. However, from 

a press-release perspective, I imagine that issuing the subpoena before this hearing may be considered a score, to be a clever move. 

But issuing a subpoena for press impact undermines the seriousness of the chairman’s oversight work. That is not good for the 

Committee, the Congress, or the country. 

I am attaching to my statement a timeline of contacts on this 

matter so that people can see that EPA was in truth working to 

meet our needs, and I would ask unanimous consent to allow this 

to be attached to my comments. 

Chairman LOUDERMILK. I am sorry. Will the lady—— 

Ms. JOHNSON. Today’s hearing, sadly, is about political theater 

and inflammatory claims that are not tied to any real facts. There 

are a lot of allegations being made about text messages and EPA, 

but these are not a lot of facts and it is just not facts that we can 

rely on to know what really happened. 

To the degree that we know anything, it is that EPA is probably 

doing about as well as any agency in trying to keep up with the 

changing landscape of communications technologies and the obligations to retain records. We also know that the most inflated claims 

regarding former EPA Administrator Lisa Jackson’s use of email 

were found to be largely unsubstantiated or just plain wrong. 

In spite of that, we will have a witness appearing before us today 

who has been at the center of a steady attack on EPA regarding 

allegations that its employees lie, that they purposefully delete and 
18 

withhold records, and that the top political officials take satisfaction in skirting the law. In short, there will be a lot of heated rhetoric at today’s hearing, but not much evidence. 

I wish this Committee would not be rushing to judgment in an 

attempt to score political points, and instead would let the IG do 

its job and finish its probe into these allegations. Then we will 

know whether or not we have a mountain or a molehill and we can 

act accordingly. 

I thank you, Mr. Chairman, and I hope that our witnesses realize 

they are under oath today. Thank you. I yield back. 

[The prepared statement of Ms. Johnson follows:] 

PREPARED STATEMENT OF FULL COMMITTEE

RANKING MEMBER EDDIE BERNICE JOHNSON

Mr. Chairman, I learned yesterday that the Chairman of the full committee 

issued a subpoena to the Environmental Protection Agency for documents related 

to allegations of text and email messages being deleted at EPA. 

When the Committee adopted the new subpoena rulesat the beginning of this 

Congress, he assured the Minority that when he issued a subpoena it would not 

come as a surprise. Yesterday we saw the first subpoena go out, and let me assure 

the Chairman that we weresurprised. 

As we understand it, the Chairman sent two letters asking for documents, one 

on January 27, 2015 and one on March 6, 2015. EPA was in the process of producing records responsive to these two requests, which had different scopes, over the 

last two weeks. Just Friday, EPA sent an email to the Majority that read, in part 

‘‘I do want to emphasize our strong desire to continue to work with the Committee 

in a cooperative manner.’’ Then five days later, on March 25th, the Chairman issued 

his subpoena. 

It is a long-standing tradition in relations between the Legislative and Executive 

branches, that there is an expectation that the two sides will accommodate the legitimate needs of each other in struggles over documents. And the fact of the matter 

is that EPA was complying with the Committee’s request, consistent with their responsibility to try to protect the Administrator’s privacy regarding personal contact 

and billing information. 

This subpoena was thus entirely unnecessary from an oversight perspective. However, from a press release perspective, I imagine that issuing the subpoena before 

this hearing may be considered by some to be a clever move. But issuing a subpoena 

for press impact undermines the seriousness of the Chairman’s oversight work. That 

is not good for the Committee, the Congress, or the country. 

I am attaching to my statement a timeline of contacts on this matter so that people can see that EPA was in truth working to meet our needs. Today’s hearing, 

sadly, is about political theater and inflammatory claims that are not tied to any 

real facts. There are a lot of allegations being made about text messages and EPA, 

but there are not a lot of facts to rely on to know what really happened. To the 

degree we know anything, it is that EPA is probably doing about as well as any 

agency in trying to keep up with the changing landscape of communications technologies and its obligations to retain records. We also know that the most inflated 

claims regarding former EPA Administrator Lisa Jackson’s use of email were found 

to be largely unsubstantiated or just plain wrong. 

In spite of that, we will have a witness appearing before us today who has been 

at the center of a steady attack on EPA regarding allegations that its employees 

lie, that they purposefully delete and withhold records, and that the top political officials take satisfaction in skirting the law. In short, there will be a lot of heated 

rhetoric at today’s hearing, but not much evidence. I wish this Committee would not 

be rushing to judgment in an attempt to score political points, and instead would 

let the IG do its job and finish its probe into these allegations. Then we will know 

whether we have a mountain or a molehill and we can act accordingly. 

Thank you, and I yield back. 

Chairman LOUDERMILK. Thank you, Ms. Johnson. 

The letter sent in March put both the EPA and the Minority on 

notice that the Committee would compel its production if the documents were not turned over in an unredacted form. 
19 

Also, if there are Members who wish to submit additional opening statements, their statements will be added to the record at this 

point. 

At this point I ask unanimous consent to enter the documents 

into the record. Without objection, the documents are entered. 

Chairman LOUDERMILK. At this time I would like to introduce 

our witnesses. 

Our first witness is Mr. Paul M. Wester. Mr. Wester is the Chief 

Records Officer for the National Archives and Records Administration, or NARA. 

The next witness on today’s panel is Mr. Kevin Christensen. Mr. 

Christensen is the Assistant Inspector General for Audit for the Office of the Inspector General at the Environmental Protection 

Agency. Welcome. 

Today’s final witness is Dr. David Schnare. Dr. Schnare is a 

former Senior Attorney at the EPA’s Office of Enforcement and 

Compliance Assurance. He is also the Director of the Free Market 

Environmental Law Clinic, the Director of the Center for Environmental Stewardship at the Thomas Jefferson Institute for Public 

Policy, and General Counsel at the Energy and Environment Legal 

Institute. 

Welcome to all of our witnesses here today. 

Pursuant to Committee rules, all witnesses will be sworn in before they testify. If you will please rise and raise your right hand? 

Do you solemnly swear or affirm that the testimony that you will 

give here today will be the truth, the whole truth and nothing but 

the truth, so help you God? Let the record reflect that the witnesses answered in the affirmative. 

Before we begin, I will request that our witnesses please limit 

your testimony to five minutes. It seems there will be another series of votes, which could happen at any time, and I want to make 

sure that we have time for discussion. Your entire written statement will be made part of the record. And if we do have votes coming up, we will suspend for those votes and then come back here 

for the remainder of the testimony. 

I now recognize Mr. Wester for five minutes to present his testimony. 

TESTIMONY OF MR. PAUL M. WESTER, JR., 

CHIEF RECORDS OFFICER, 

NATIONAL ARCHIVES AND RECORDS ADMINISTRATION 

Mr. WESTER. Chairman Loudermilk, Chairman Bridenstine, 

Ranking Member Beyer, and Ranking Member Bonamici, and other 

distinguished Members of the Committee, I am Paul Wester, the 

Chief Records Officer for the U.S. Government at the National Archives and Records Administration. Thank you for holding this 

hearing on the importance of federal recordkeeping and the challenges agencies face managing government records. 

In my prepared testimony, I provided a detailed summary of a 

number of recent activities that the National Archives, the Office 

of Management and Budget, and other federal agencies across the 

government have undertaken to improve the management of government records. I also make special note of the enactment by the 

113th Congress of the Presidential and Federal Records Act 
20 

Amendments of 2014 under the leadership of Chairman Issa and 

Ranking Member Cummings of the House Oversight and Government Reform Committee. I look forward to answering questions 

this Committee may have on those activities. 

The Committee asked me to address three specific questions 

today. First, what does the Federal Records Act require of federal 

agencies? The Federal Records Act requirements for federal agencies are found at 44 U.S.C. Chapter 31, which is titled ‘‘Records 

management by federal agencies.’’ At a high level, agency heads 

are responsible for ensuring several things including the adequate 

and proper documentation of agency activities, a program of management to ensure effective controls over the creation, maintenance, and use of records in the conduct of their current business, 

and compliance with NARA guidance and regulations and compliance with other sections of the Federal Records Act that give 

NARA authority to promulgate guidance, regulations, and records 

disposition authority to federal agencies. 

The second question the Committee asked me to address today 

is what are transitory records and how is the disposition of them 

different than other federal records. Under the General Record 

Schedule 23, records common to most agencies within—records 

common to most offices within agencies, transitory records are defined at item 7 as records of short-term interest, 180 days or less, 

including records in electronic form like email messages or text 

messages, which have minimal or no documentary or evidential 

value. Included are such records as routine requests for information or publications and copies of replies which require no administrative action, no policy decision and no special compilation or research for the reply or originating office copies of letters of transmittal that do not add any information to that contained in the 

transmitted material and receiving office copy if filed separately 

from transmitted material and records documenting routine activities containing no substantive information such as routine notifications of meetings, scheduling of work-related trips and visits, and 

other scheduling-related activities. The disposition of these records 

is destroy immediately or when no longer needed for reference, or 

according to a predetermined time period or business rule like implementing an auto-delete feature on an email system. The disposition of transitory records is not different from the disposition of 

other federal records. Federal employees are encouraged to dispose 

of transitory records consistent with the General Records Schedule 

23 just as they are encouraged to carry out disposition of other federal records according to agency-specific and NARA-approved 

records disposition schedules. 

The third issue that the Committee asked me to address is EPA’s 

compliance with the Federal Records Act itself. As a general matter, NARA cannot speak authoritatively to agency compliance with 

the Federal Records Act. Departments and agencies are responsible 

for managing their programs consistent with the Act. I can say 

that the EPA has participated in NARA’s annual Records Management Self-Assessment, also known as the RMSA, since it was established in 2009. The RMSA is a self-reported evaluation of compliance with NARA’s records management regulations. NARA does 

some validation of survey responses but the validation is limited to 
21 

the verification that records management program policies are in 

place. Overall, the EPA has scored well on the self-assessment 

since we have administered it since 2009. 

Like other agencies, EPA has self-reported records management 

issues to NARA as required in the Federal Records Act. My staff 

and I work to resolve these issues with the EPA records management staff. EPA has been responsive and cooperative with NARA 

in these dialogs and has provided supplementary information to 

NARA as it has been requested. 

In conclusion, the management of federal records in all their 

forms is a central, animating issue for the National Archives and 

for the government as a whole. In that regard, the Science Committee’s interest in records management at the EPA and all its sister 

agencies is also topic of interest to the National Archives. 

The talented staff of the National Archives and Records Administration looks forward to working on records management with EPA 

now and for many years to come. The long-term success of the National Archives and the historical record of our Nation depends on 

our collective success. 

Thank you for the opportunity to appear today. I look forward to 

answering your questions. 

[The prepared statement of Mr. Wester follows:] 
22 
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24 
25 
26 
27 
28 
29 

Chairman LOUDERMILK. Thank you, Mr. Wester, and I now recognize Mr. Christensen for five minutes to present his testimony. 

TESTIMONY OF MR. KEVIN CHRISTENSEN, 

ASSISTANT INSPECTOR GENERAL FOR AUDIT, 

OFFICE OF INSPECTOR GENERAL, 

ENVIRONMENTAL PROTECTION AGENCY 

Mr. CHRISTENSEN. Good morning, Chairman Loudermilk, Chairman Bridenstine, Ranking Member Beyer, and Ranking Member 

Bonamici, and the Members of the Subcommittees. I am Kevin 

Christensen, the EPA OIG, Office of Inspector General, the Assistant Inspector General for Office of Audit. Today I will discuss three 

matters: the records management policies of the EPA, OIG’s report 

congressionally requested inquiry into EPA’s use of private and 

alias email accounts, and EPA’s compliance with the Federal 

Records Act. I will highlight some of the EPA’s most significant 

records management policies and procedures. 

In June 2009, the records management policy was revised to establish responsibilities and requirements to ensure that the Agency 

is in compliance with federal laws and regulations and the best 

practices for managing records. In June 2013, the records management policy was again revised to provide EPA employees with guidance when using personal email accounts to conduct government 

business and instant messaging. Recently in February 2015, the 

records management policy was revised further to include guidance 

on the use of text message on EPA’s information system and personal devices. The EPA has also published several reminders to 

Agency senior officials and employees regarding their records management responsibilities. 

In response to a request from the House Committee on Science, 

Space, and Technology, the OIG completed an audit to determine 

whether the EPA followed applicable laws and regulations when 

using private and alias email accounts to conduct official business. 

We issued our final report in September 2013. The audit found no 

indications that EPA senior officials had used, promoted or encouraged the use of private non-governmental email accounts to circumvent records management responsibilities or any EPA senior 

official reprimanded, counseled or took administrative actions 

against personnel for the use of private email or alias email accounts for conducting official government business. 

We uncovered no facts to support Agency senior officials had 

used private email intentionally to circumvent federal recordkeeping responsibilities. We determined that assigning personnel 

multiple email accounts is widely practiced within the Agency. 

However, this is not limited to EPA senior officials and presents 

risk to the EPA’s records management efforts if these additional 

email accounts are not searched during FOIA requests or preserved 

as records. 

We also conducted an audit of the Clean Water Act Section 404 

permit notification reviews for surface coalmining and issued our 

report in February 2012. We found without complete records, it 

was difficult for the EPA to know the permit status and the resolution of EPA’s comments related to the Clean Water Act. 
30 

Additionally, we are currently conducting an audit reviewing the 

processes for preserving text messages. The objectives include 

whether EPA implemented policies and procedures to determine 

which text messages to preserve and steps to ensure that the employees are knowledgeable of this guidance, implemented processes 

to respond to Congressional and FOIA requests involving agency 

employees’ text messages, used text messages for informational 

business, and deleted, destroyed, lost or misplaced text messages 

needs for records management, and if applicable, the rationale for 

destroying text communication records. We anticipate this audit to 

be completed in September of 2015. 

I am here today at the request of the Committee to report on 

how the EPA has conducted itself in line with relevant laws and 

rules—laws and records—rules for records management. Today I 

have outlined the records management policies within EPA and the 

result of our audit work into EPA records management practices 

along with the ongoing work into the Agency text messaging. We 

are committed to working with Congress and the EPA to help realize the benefits of an effective records management program that 

enables and supports the Agency work to fulfill its mission. 

This concludes my statement. Thank you for the opportunity to 

testify before you today. I will be pleased to answer any questions 

you may have. 

[The prepared statement of Mr. Christensen follows:] 
31 
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34 
35 
36 
37 
38 

Chairman LOUDERMILK. Thank you, Mr. Christensen. 

I now recognize Dr. Schnare for five minutes to present his testimony. 

TESTIMONY OF DR. DAVID SCHNARE, FORMER SR. ATTORNEY, 

EPA OFFICE OF ENFORCEMENT AND COMPLIANCE 

ASSURANCE; 

DIRECTOR, FREE-MARKET ENVIRONMENTAL LAW CLINIC; 

DIRECTOR, CENTER FOR ENVIRONMENTAL STEWARDSHIP, 

THOMAS JEFFERSON INSTITUTE FOR PUBLIC POLICY; 

GENERAL COUNSEL, ENERGY & ENVIRONMENT LEGAL 

INSTITUTE 

Dr. SCHNARE. Thank you, Mr. Chairman, all the Members of the 

Committee. I appreciate your interest in this subject. My role here 

today apparently is to be a foil, and all I wish to do is to be a witness, and so I will fulfill that role. 

The question before the Committee today is whether it can have 

confidence that EPA is implementing the Freedom of Information 

Act and the Public Records Act, especially in the context of text 

messages. My three decades and more of experience at EPA including working with very high officials including the political-appointee level suggests, sadly, that you cannot. 

Let me make a few points, and I will rest on my written testimony. Let me first say that with regard to fake email addresses, 

there has been a change in the culture of the Agency. For example, 

Administrator Whitman had an email address called ‘‘towit,’’ rather 

clever, I thought, but when you received an email from that private 

email account, it said ‘‘from Administrator Whitman,’’ unlike Administrator Johnson, who when she used ‘‘Richard Windsor’’ 

showed it as coming from Richard Windsor. This is a level of artifice that frankly is inappropriate and was a change from previous 

Administrations. 

Secondly, I have had the pleasure, if you will, if having to deal 

with a great deal of civil discovery and Freedom of Information request activities, and had to help senior officials with review of documents that they had in their personal possession. We managed a 

7-million-page discovery request in a civil case. We ended up producing 2.2 million pages of material. The privilege log stood taller 

than I am myself. The fact is that when you get large requests of 

this kind, many hands make light work, and so the slowdown of 

the Agency in producing documents is merely a question of whether 

they are going to put the people on it and spread the work or not. 

Thirdly, there is a critical time when Agency officials and where 

they are and what they are doing is important to know. When the 

Agency is making decisions, for example, on a regulatory matter, 

after the record closes, ex parte communications are inappropriate. 

So if you see a text message between the Administrator and someone who is an advocate or lobbyist and it says ‘‘I’ll see you at 

Starbucks at 3,’’ that may seem as though it is a benign text message that has no content or meaning and could be destroyed, but 

it is more than that. It is an indication that the Administrator is 

meeting or some official is meeting with someone from outside the 

Agency at a time when one must take great care in what those 
39 

meetings are and what is said about them and how they are recorded, and thus it is important for the public to know when Administrators and other high officials are talking to people, and that 

includes the media and the press, and we have seen documents 

that say during this period of time when text messages were destroyed, that in fact the phone records show the records were 

made—the text messages were made to members of the media. 

And so when you look at what is going on and how text messages 

are used and what has been kept secret, you have to actually ask 

someone who has been in the belly of the beast. I have had the fortune of having to go through senior executives’ materials for purposes of production, and inevitably, one finds messages and materials you really don’t wish to make public because they are embarrassing, not because they shouldn’t be released, and indeed, there 

are almost always files set aside that you are not—you are asked 

not to look at, and in fact, some of these folks have said to me 

when I identify some of these, ‘‘Oh, I really don’t want those out. 

Let’s just ignore those.’’ And when I asked for help from the Administrator’s office on Freedom of Information requests to which 

they must respond and they did not, my own senior management 

went up and asked for that, and the answer we got back was ‘‘let 

it go.’’ 

And so, Mr. Chairman, I will be happy to answer your questions. 

I thank you for the opportunity to come up here. I didn’t seek it 

but I will be happy to answer your questions as you may choose. 

[The prepared statement of Dr. Schnare follows:] 
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44 
45 
46 
47 
48 
49 
50 

Chairman LOUDERMILK. And thank you for your testimony, and 

to all of our witnesses, we really appreciate you coming here to testify. The purpose of this Subcommittee hearing is not to put our 

witnesses on trial; it is to get to the bottom of why messages were 

deleted and what changes need to be made, and I assure you that 

is the purpose of this hearing. 

I now recognize myself for five minutes for questions. This question I will present to each one of our witnesses. The one text message record involving Gina McCarthy provided to this Committee 

was coincidentally sent about a week after the Committee inquired 

with the Agency about text message retention. What is even more 

interesting is that the text message came from Gene Karpinski, the 

President of the League of Conservation Voters, and he said, 

‘‘Karpinski here. Great job on the EPA comments on Keystone. I 

feel like the end is very near.’’ 

First, Dr. Schnare, as someone who once worked at the Agency, 

do you find that there was a culture of text messaging or giving 

out government-issued cell phone numbers to outside groups? 

Dr. SCHNARE. It was routine, and the way it worked was, before 

there were text messages—and I am said to say I remember when 

we thought fax was a pretty cool thing—the telephone was the way 

you engaged in these conversations. There was no record other 

than that you made the call, and that is how people dealt with 

these outside groups where they didn’t really wish to have it 

known what they were saying and it didn’t matter what Administration you were in, that is the practice. 

As text messaging came along, it became the shorthand way to 

do precisely the same thing. So what we have now is a culture of 

text messages to be very brief but to essentially engage in those 

kinds of communications that generally you didn’t want to have 

public or you didn’t need to have public. That is not the only reason 

people use text messages. They use them for a variety of purposes 

but that became one of the mechanisms used to engage in private 

conversations. 

Chairman LOUDERMILK. Thank you, sir. 

Mr. Wester, do you know if text messages like these with the 

heads of agencies or departments speaking with outside influential 

groups are commonly preserved as federal records? 

Mr. WESTER. What I do know is that records that are created or 

received in the conduct of federal business, which can include text 

messages and other kinds of electronic communications that document those transactions can be federal records and often are federal records and need to be managed appropriately. Sometimes 

they can be characterized as transitory records, as I described in 

my testimony. Otherwise there are specific schedules that are in 

place within agencies that require different kinds of dispositions for 

those kinds of materials, but what you are describing, it sounds 

like it is a message that has been created and received in the conduct of federal business, which means it is a federal record that 

needs to be managed appropriately. It is a question of which disposition applies to it. 

Chairman LOUDERMILK. Thank you, sir. 

Mr. Christensen, in your role as Assistant Inspector General for 

Audit at the EPA OIG, have you found there to be a practice of text 
51 

messaging or giving out government-issued cell phone numbers to 

outside groups? In addition, do you know if the text messages like 

these between the Administrator at the EPA speaking with outside 

influential groups are commonly preserved as federal records using 

EPA’s policies and procedures over the years? 

Mr. CHRISTENSEN. Sir, we had one audit ongoing, which I mentioned in my testimony, about the text messages. We are still in 

the field work or the initial research phase of that. We have not 

reached any conclusions so I couldn’t provide any definite yes or no 

on that answer. We would be happy to share the results when we 

get finished with the audit. 

Chairman LOUDERMILK. Working inside the EPA, would it be 

common practice that 100 percent of text messages in a four-year 

period would all be transitory or personal in nature? 

Mr. CHRISTENSEN. We haven’t completed our work so we haven’t 

come to any conclusion based on our report. 

Chairman LOUDERMILK. All right. Thank you. 

Considering groups like the League of Conservation Voters can 

influence important policy decisions that the EPA weighs in on 

that eventually affect the daily lives of Americans, I find it necessary that communications like these are brought forward and recorded as federal records in order to ensure transparency. Without 

transparency at the EPA, as we see in the only text message example, there is an appearance of impropriety and undue influence on 

the EPA’s decision makers that could essentially end up hurting 

American taxpayers without their knowledge of it ever occurring, 

and that is the context of where we want to go with this. 

I will yield back my time at this point. I am sure others have 

several questions that they would like to engage in, and at this 

time I recognize Mr. Beyer for five minutes. 

Mr. BEYER. Thank you, Mr. Chairman. 

I would like to begin just by noting that there is a world of difference between deleting text messages and deleting a federal 

record and we need to be clear and careful in this matter. 

I am new to text messaging. I discovered I had no choice because 

my children would not return my phone calls, but they answer my 

text messages right away. And I discovered with my U.S. Congressissued cell phone that almost all the text messages I get from the 

staff are: are you still stuck on the 14th Street Bridge; I will meet 

you at the Science Committee room; votes are called—virtually 

nothing—I have never seen a vote recommendation or anything 

else. They have all been in emails or handed to me but never text 

message because they are a few things long. 

I want to just quickly repeat some of the points from Mr. Wester 

and Mr. Christensen. From Mr. Wester, he said there is—Mr. 

Christensen rather, Phase 3, no evidence—‘‘We uncovered no evidence of these individuals that used private email intentionally to 

circumvent federal recordkeeping responsibilities.’’ Page 4, ‘‘We 

made five recommendations of the EPA and the EPA agency reported completed corrective actions for two in June and July of ’13, 

one in December of ’13, the remaining two recommendations in November and December 2014.’’ And finally, the last page, ‘‘The EPA 

has taken significant steps to publish policies that address compliance with NARA and the Federal Records Act requirements. And 
52 

the EPA’s leadership has shown a commitment to address many of 

the problems and weaknesses identified by the OIG.’’ And in Mr. 

Wester’s statement on page 5, ‘‘The EPA has been responsive and 

cooperative with NARA staff in these dialogues and has provided 

all supplementary information NARA has requested.’’ So there is a 

lot of good stuff up there. 

But in Dr. Schnare’s written testimony, the last page, you say 

that ‘‘There is no penalty if EPA employees’’—‘‘EPA employees are 

emboldened to flout FOIA and public record preservation duties. 

There is no penalty if they do, and senior management is pleased 

when they do. Destroying public records allows senior management 

to keep secret its outside contacts outside the agency, more free to 

collude with political advocates, including those who are supposed 

to be bound by nonprofit restrictions, disallowing direct lobbying.’’ 

Those are very strong statements, especially that senior management is pleased. How do you know this as a fact and did you ever 

take these to the Inspector General? 

Dr. SCHNARE. I know it is a fact because I am a witness to some 

of those statements and that is the kind of thing people will say 

at senior levels, including political appointee levels. You get—when 

you are as old and gray as I am and you have been around as long 

as I have, you know, you do work that is of a sensitive nature with 

people at high political office, and you have loyalty to them and 

they share statements that otherwise perhaps they might not have 

and should not have. And I am not going to name names here 

today, but the fact of the matter is people will say things like, 

yeah, I got rid of all of that or they will never find that; I have 

washed that machine clean. That happens. It is not frequent and 

I don’t think you see junior members of EPA do it. 

I am very proud of my experience at EPA. I am very proud of 

the people at EPA and what they have done, but from time to time, 

the culture changes and it did change under the current Administration. 

With respect to making report to the Inspector General, I have 

done—from time to time called colleagues of mine in the office and 

pointed out things but not on this subject. 

Mr. BEYER. Can I ask, Mr. Christensen, you do have a hotline 

where people can report these allegations are ongoing? 

Mr. CHRISTENSEN. Yes, the— 

Mr. BEYER. Or something like a hotline? 

Mr. CHRISTENSEN. Yes, the OIG does have a hotline run by our 

Office of Investigations. 

Mr. BEYER. If someone like Dr. Schnare had reported these 

things, would you have taken him seriously and investigated them? 

Mr. CHRISTENSEN. It would have been going into the Office of Investigations and they would have taken the appropriate action that 

they saw fit. It is outside of my office so I don’t oversee that myself. 

Mr. BEYER. Dr. Schnare talked about the Richard Windsor/Lisa 

Jackson email thing. Did you do any investigation on that and did 

you find any violations of federal law or federal regulation there? 

Mr. CHRISTENSEN. During the audit that we did, the—titled 

‘‘Congressionally Requested Inquiry into EPA’s Use of Private and 

Alias Email Accounts,’’ we did come across that and we did not find 

any violations, as you saw in the report. 
53 

Mr. BEYER. Okay. Mr. Chairman, I yield back. Thank you very 

much. 

Chairman LOUDERMILK. Thank you, sir. 

I now recognize Mr. Bridenstine of Oklahoma. 

Mr. BRIDENSTINE. Thank you, Mr. Chairman. 

This is a question for Mr. Wester. In 2011 in a hearing before 

the House Oversight Committee Brook Colangelo, who was then 

the White House Chief Information Officer, said the following: ‘‘We 

have also upgraded our email and Blackberry servers to improve 

reliability and we are the first administration to begin archiving 

SNS text and pin-to-pin messages on EOP Blackberry devices.’’ The 

White House CIO made this statement back in 2011. Have other 

agencies started to follow this practice in the four years since then? 

Mr. WESTER. So what has happened since then—I should say two 

things, first, that Mr. Colangelo is operating under the Presidential 

Records Acts within the White House, which are separate laws that 

govern what goes on in the rest of the federal government with the 

Federal Records Act upon which I am an expert witness in. 

The second point I would make is that since that time, agencies 

have identified text messaging and instant messaging along with 

email management as issues that they needed to address and have 

guidance put in place within their agencies so that they understand what the value of this material is and how effective it needs 

to be managed over time. So I would characterize it more as an 

emerging issue that needs to be dealt with first from a policy perspective and then by implementing technology to make that policy 

happen within each of the agencies across the government. 

Mr. BRIDENSTINE. Has the EPA implemented these policies? 

Mr. WESTER. The EPA is in the process of implementing policies 

specific to text messaging, and part of what they have discussed 

with us and our staff at the National Archives are the different 

policies that they are intending to or have implemented or intend 

to implement with training and specific policy guidance on how to 

identify substantive records versus transitory records what kind of 

actions individual EPA employees need to take to manage those 

substantive records and that have enduring or continuing value so 

that they are maintained through the end of their retention period. 

Mr. BRIDENSTINE. So it would appear that if it is important for 

the White House, it would also be important for the EPA, is that 

correct? 

Mr. WESTER. Yes, they are governed by two separate statutes, 

but yes. 

Mr. BRIDENSTINE. Okay. On your agency’s website there is a frequently-asked-questions section for agency records managers. 

Mr. WESTER. Um-hum. 

Mr. BRIDENSTINE. One of those FAQs is for instant messaging. 

The FAQ states, ‘‘Agencies that allow IM traffic, instant messaging 

traffic, on their networks must recognize that such content may be 

a federal record,’’ and it says, ‘‘The ephemeral nature of IM heightens the need for users to be aware that they may be creating 

records using this application and to properly manage and preserve 

record content.’’ 

Mr. Wester, EPA has repeatedly told this committee that text 

messages are really just ‘‘transitory records’’ and therefore not sub-
54 

ject to archiving rules. This FAQ seems to urge a bit more caution. 

Isn’t it true that the text messages are just as capable as qualifying 

as a federal record as any other electronic communication? 

Mr. WESTER. The short answer to your question is yes. One of 

the things that I tried to reiterate as part of my testimony is that 

transitory records have a retention of up to 180 days so the value 

of them is generally less than other federal records, but as it states 

on our frequently asked questions, with text messages and instant 

messaging and other kinds of more ephemeral—as it is characterized in the FAQ—electronic communication, that material still 

needs to be managed as federal record material if it rises to the 

level of being a federal record. 

Mr. BRIDENSTINE. So regardless of the medium that the person 

uses to communicate, the content is what determines whether or 

not is a federal record—— 

Mr. WESTER. Yes, sir. 

Mr. BRIDENSTINE. Okay. Is it appropriate for individual employees to be the arbiter—and this is just for, you know, as we go forward as a nation, how do we deal with these kind of activities— 

for the individual employees to be the arbiter of what is a record 

and what is not a record? The individual employee is responsible 

for determining that. Is that appropriate or should—and maybe the 

Federal Records Act be updated so that maybe a third party would 

be responsible for determining what is a Federal record and what 

is a personal record? 

Mr. WESTER. So right now under the Federal Records Act individual federal employees, over 2 million of them across the government, are empowered to make that decision every day based on 

their understanding of the work that they conduct and we expect 

them to be able to understand the rules and guidance and make 

that determination of record versus non-record or record versus 

personal material and manage it appropriately. 

Over the longer term the archives hopes that technologies can be 

brought to bear to do auto categorization using machine learning 

and those sorts of things so that we can have these processes done 

in an automated way so that we can eliminate the possibility of 

human error or other sorts of things that would possibly— 

Mr. BRIDENSTINE. Real quick, last question. 

Mr. WESTER. Sure. 

Mr. BRIDENSTINE. Is it true that under General Record 23 and 

EPA Schedule 167 that senior officials may not delete electronic 

records without permission from NARA? 

Mr. WESTER. I would have to look at the schedule and get back 

to you on that specifically. 

Mr. BRIDENSTINE. Okay. I would appreciate that. 

Mr. WESTER. I will do that. Thank you. 

Mr. BRIDENSTINE. Thank you so much. I will yield back. 

Chairman LOUDERMILK. The Chair now recognizes the gentlewoman from Oregon, Ms. Bonamici. 

Ms. BONAMICI. Thank you very much, Mr. Chairman. I want to 

start by aligning myself with the comments of Ranking Member 

Beyer. I do want to point out some concerns, Dr. Schnare, that you 

are mentioning, some problems that you observed at the EPA. I am 

a little troubled that you did not come forward in an effective way 
55 

while you were there but suddenly now are expressing this concern 

in a more litigious fashion. 

So, Dr. Schnare, I want to have a better understanding of what 

hats you are wearing today, who you are working for and who is 

funding your organizations. Apparently the financial disclosure 

form you filled out for the Committee, it contains limited conflictof-interest disclosures but of course we are big on transparency so 

please help me understand how you are supported in your work. 

So since your retirement you are listed as a—from the EPA you are 

listed as a Director for the Center for Environmental Stewardship 

at the Thomas Jefferson Institute for Public Policy, a Director of 

the Free Market Environmental Law Clinic, General Counsel for 

the Energy and Environmental Legal Institute, past Director of the 

Occoquan—I hope I said that right—Watershed Coalition, Chairman of the Coalitions of Environmental and Land Use Committee, 

and you are CEO of Schnare and Associates. So that is quite a list. 

So are we leaving out any corporations on which you serve as an 

officer or director or employee or any other entities that were established by you? 

Dr. SCHNARE. No, you are not, although Schnare and Associates 

no longer exists; I don’t have time for that. The long list you gave 

is just a wonderful list of activities that I have been involved in. 

For example, in the Thomas Jefferson Institute for almost two decades I worked with them, all of it pro bono. 

Ms. BONAMICI. Terrific. And I wanted to ask you, as Counsel of 

the Energy and Environment Legal Institute, so you filed many 

lawsuits against the EPA and other agencies and also have filed 

public submissions to propose to EPA rulemakings on behalf of, for 

example, oil, gas, and mining companies. So have you been paid for 

creating and/or filing those submissions? 

Dr. SCHNARE. I am General Counsel for Energy and Environment 

Legal Institute. I don’t draw a salary. I work pro bono. 

Ms. BONAMICI. So you don’t receive any legal fees for your work 

on these lawsuits? 

Dr. SCHNARE. I don’t. 

Ms. BONAMICI. And how are your various corporations supported, 

through contributions or do you sell products or services? 

Dr. SCHNARE. We don’t sell products or services. These are 

501(c)(3)’s, which of course can sell products and services but you 

have to pay taxes on those. The ones with whom I have been involved have all been 501(c)(3)’s that do not provide services. 

Ms. BONAMICI. Do you receive financial or in-kind support from 

foundations or other nonprofits? 

Dr. SCHNARE. Much like every Member behind the dais that is 

an elected official, we all get donations and we get donations from 

folks in an interesting way. Implied in your question, for example, 

is whether there is a quid pro quo for the money we get, much like 

your money. When you are given donations, large donations from 

single individuals, no one here in this room would suggest that you 

were being purchased, that there is a quid pro quo. Those people 

donate to you because you take positions and have views with 

which they are comfortable and that they want to see supported, 

and that is true exactly for the kinds of— 

Ms. BONAMICI. I am going to reclaim my time—— 
56 

Dr. SCHNARE. —things that we are— 

Ms. BONAMICI. —and ask Mr. Christensen a question. Thank 

you. 

Dr. Schnare—Mr. Christensen, Dr. Schnare claims that senior 

agency officials were destroying records and interfering with FOIA 

requests. So I know your office conducted the examination of the 

complaints surrounding former Administrator Lisa Jackson regarding destruction or withholding of email. So can you explain to us 

what your office found? Did you find any evidence of willful destruction? 

Mr. CHRISTENSEN. As I said in my oral statement, we did not 

find any evidence of intentionally destroying. 

Ms. BONAMICI. And did you find any evidence of a pattern of encouraging employees for engaging in destruction or obstruction of 

records requests? 

Mr. CHRISTENSEN. No, we do not. 

Ms. BONAMICI. Okay. And, Mr. Wester, I wanted to ask you to 

follow up on a comment you made about the work that is being 

done to change over to a system that may automatically preserve 

records. Can you just—this is a Science, Space, and Technology 

Committee. Could you tell us a little bit about that? 

Mr. WESTER. So one of the things that we are working on at the 

National Archives is implementing a policy for managing email 

records across the government called Capstone, and what we are 

encouraging agencies to do is capture all of their email records and 

identifying the level at which above—a certain line within an agency all of the records are presumptively permanent and would be 

eventually transferred to the National Archives for permanent retention and accessed by the public. And then beneath that line following this Capstone policy identifying different shorter-term retentions that still protect the rights and interests of the government, allow for agencies to carry out their business on a daily 

basis, and protect the rights and interests of citizens, and then be 

able to destroy those records after a shorter period of time, usually 

somewhere around seven years when there is a statute of limitations passing. 

Ms. BONAMICI. Thank you. We look forward to following up with 

you on that effort. 

And I yield back the balance of my time. Thank you, Mr. Chairman. 

Chairman LOUDERMILK. Thank you. I now recognize the Chairman of the full Committee, Mr. Smith from Texas. 

Chairman SMITH. All right. Thank you, Mr. Chairman. First of 

all, I want to thank Dr. Schnare for his replies to some questions 

he just had. One, I want to thank you for your pro bono work. I 

know that has got to be a sacrifice. And secondly, I would like to 

thank you for your trenchant answer and response to putting contributions in context. I thought that was exactly right. 

Let me address my first question to all three of you and start 

with Mr. Wester. And I think a yes-or-no answer will be fine here. 

Using a commonsense standard, is it credible that someone could 

send 6,000 text messages on an official Blackberry or later on an 

official iPhone and that only one of those text messages would be 

work-related? 
57 

Mr. WESTER. I would want to see how—the content, the structure, and the whole volume of text messages was before I can make 

that determination. 

Chairman SMITH. Right. And I agree with you and that was the 

reason for the subpoena, so we could get those records and determine that exact point. 

Mr. Christensen, is it credible? 

Mr. CHRISTENSEN. Again, I would be similar to Mr. Wester here. 

I would need to see what the context was a—— 

Chairman SMITH. Okay. 

Mr. CHRISTENSEN. —and we have the audit ongoing and we have 

not completed our work on that. 

Chairman SMITH. Right. I understand that, but just using the 

commonsense standard, without saying definitively one way or the 

other, is it credible that 6,000 text messages would be sent that 

would not be related to work and the messages all sent on official 

devices? 

Mr. CHRISTENSEN. I would question it and that would be why I 

would want to see the context before I reached a conclusion. 

Chairman SMITH. Good. I have got two yeses to the subpoena. 

And, Dr. Schnare, what do you think? 

Dr. SCHNARE. Let me give you two more. I think that that level 

of texting is going to inevitably have something in it, but I would 

share with you that Judge Collier, who has to deal with this matter 

of law when we brought the matter, made the comment that he 

thought it was implausible and so I defer to the Judge. 

Chairman SMITH. I like implausible. To me that is a synonym for 

incredible or not credible. 

And, Dr. Schnare, just to follow up on a couple of other things, 

this goes back to your written testimony, and I know you didn’t 

have time to cover all of your written testimony in your verbal testimony, but in your written testimony you indicate that EPA officials ‘‘lack a willingness to properly search for records when requested to do so. Could you elaborate on this and tell us what you 

base your opinion upon?’’ 

Dr. SCHNARE. Well, I can base it on personal opinion—or personal experience rather. When I was at the Agency I spent more 

time than anyone would like having to respond to civil discovery 

and to FOIA, which are quite similar. In two cases I had FOIA, 

which I was responsible for the final response, that required responses from several regional offices, several offices within the 

Agency, including the Office of the Administrator. We were under 

a time deadline, we had to communicate with the requester to get 

additional time, but the one office that never responded and refused to respond was the Office of the Administrator. 

And my approach to this, the only approach I had available besides talking directly to the young man who was supposed to be 

doing that job, was to go up my own chain of command, which I 

did, all the way to the presidential appointee and ask that he talk 

to Chief of Staff and shake things up and loosen it up. The answer 

I got back unhappily was just let it go. 

And so on two occasions we had situations where clearly there 

were documents within that office and clearly we weren’t going to 
58 

get them, and so I was forced to complete and close out the FOIA 

request without being able to obtain those documents. 

Chairman SMITH. That says a lot. Also in your written statement 

you say there is a culture ‘‘to keep secret what should be available 

to the public.’’ Is this along the same lines of that personal experience you just recounted? 

Dr. SCHNARE. Yes. 

Chairman SMITH. And then lastly, you mentioned in your statement, staff working directly in the Office of the Administrator simply refused to comply with FOIA. Anything you want to add to your 

observations there? 

Dr. SCHNARE. Well, I think I gave you the two examples—— 

Chairman SMITH. Okay. 

Dr. SCHNARE. —to which I was referring. 

Chairman SMITH. Believe me, that was plenty. Thank you, Dr. 

Schnare. 

I yield back. Thank you, Mr. Chairman. 

Chairman LOUDERMILK. Thank you, Mr. Chairman. 

The Chair now recognizes the gentlewoman from Maryland, Ms. 

Edwards. 

Ms. EDWARDS. Thank you very much, Mr. Chairman, and thank 

you to our witnesses. 

I think today I am just going to focus on Dr. Schnare. And, Dr. 

Schnare, I just want to focus not on the Ph.D. part but on the J.D. 

part. You are a licensed attorney? 

Dr. SCHNARE. I am. I am licensed in Virginia and the District of 

Columbia. 

Ms. EDWARDS. And how long have you been licensed? 

Dr. SCHNARE. Over a decade. 

Ms. EDWARDS. And so when you testify here about things that 

other people said and everything, you are probably glad that we 

are actually not in a courtroom because a lot of that is just hearsay, isn’t it? 

Dr. SCHNARE. What I observed myself is not and obviously—— 

Ms. EDWARDS. No, you testified earlier about things that you 

heard other people saying or that you knew of other people saying 

but not that you heard directly, but never mind that. I just want 

to ask you for a moment you also testified that in the things that 

you heard that were blatantly illegal, don’t you have an obligation 

as an attorney? What is your obligation as a licensed attorney? Because I mean I am not licensed anymore but I do remember taking 

the oath. What is your obligation? 

Dr. SCHNARE. Well, the obligation of any attorney is it to try to 

counsel people into the—what is known as the trail of the law or 

the path of the law. 

Ms. EDWARDS. No, no, no. You—as a licensed attorney, your obligation is to the court, to the bench, and in your profession, your 

ethical obligation is actually to report that wrongdoing, isn’t it? 

Dr. SCHNARE. Yes, and—— 

Ms. EDWARDS. Okay. 

Dr. SCHNARE. —the question is to whom—— 

Ms. EDWARDS. So, thank you. You said yes, right? 

Dr. SCHNARE. —so if you report to the—your own chain, you 

have done that. 
59 

Ms. EDWARDS. Thank you. Thank you. I don’t think so. I think 

as a licensed attorney, you have more of an obligation than that. 

I just want to go back to some of the—you referred to yourself 

as a climate change skeptic, right? 

Dr. SCHNARE. I have no idea what that has to do with text messages today but—— 

Ms. EDWARDS. Let me just ask—— 

Dr. SCHNARE. —that is certainly true. 

Ms. EDWARDS. —it is not up to you to determine what I can ask 

you. 

You referred to yourself as a climate change skeptic, is that correct? 

Dr. SCHNARE. Yes. 

Ms. EDWARDS. Right. And so I want to look at something that I 

find again on the J.D. part and not on the Ph.D. what is disserving. 

In 2011 an attorney representing the University of Virginia gave 

sworn testimony regarding a lawsuit you were involved in surrounding Dr. Michael Mann’s emails. That attorney testified and I 

want to quote this. ‘‘The fact that Dr. Schnare has, for whatever 

reason, felt compelled to make misleading statements to me about 

his employment status with the EPA and demonstrably false statements about his having obtained requisite approvals to represent 

the American Tradition Institute in this lawsuit while still being 

employed by the EPA is extremely troubling and has destroyed Dr. 

Schnare’s credibility in my mind.’’ 

That is from a university—an attorney representing the University of Virginia that is pretty strong accusations from the Associate 

General Counsel at UVA. So how do you actually represent, Dr. 

Schnare, an outside client without clearance from the EPA? 

Dr. SCHNARE. What—— 

Ms. EDWARDS. Is that appropriate? 

Dr. SCHNARE. What you do is you get permission, which I had 

done and what many employees do. There is a process for getting 

and—— 

Ms. EDWARDS. So you got permission to represent a client who 

was a challenging the—challenging your employer? I find that really—— 

Dr. SCHNARE. No, that is not at all accurate, and those kinds of 

inaccuracies from someone who has been a lawyer and an attorney 

is disturbing to me. 

Ms. EDWARDS. Oh, you know what, I am just like, you know, just 

a regular old street lawyer, you know, so don’t hold that against 

me. 

Let me see. Dr. Schnare, in your original testimony that you circulated to the Committee, to your credit you did expunge an element of that testimony that might have defamed an individual. 

However, in the original testimony you accuse someone of not cooperating in the searches of Administrator’s records and admitted 

that you were aware they had not done adequate searches. In fact, 

you wrote, ‘‘In each case I was forced to respond to the FOIA request without his input despite knowing that in doing so the responses were legally deficient. 

Is it your obligation as an attorney to submit responses that are 

legally deficient? 
60 

Dr. SCHNARE. Of course not but that doesn’t mean that that isn’t 

the way it sometimes happens—— 

Ms. EDWARDS. So—— 

Dr. SCHNARE. —especially when your senior managers—— 

Ms. EDWARDS. —let me reclaim my time—— 

Dr. SCHNARE. —tell you what to do and how to do it. 

Ms. EDWARDS. —I only have 30 seconds, Dr. Schnare, and it is 

not yours. So I just want to be really clear that you have submitted 

legally deficient responses, you have misled a general counsel, you 

have witnessed wrongdoing and not reported it. Why is it that 

someone shouldn’t file a claim against you to have you disbarred 

and to have your license removed? 

With that, I yield the balance of my time. 

Chairman LOUDERMILK. Thank you. And again, we appreciate 

the witnesses volunteering your time to come here, and you are not 

compelled to answer questions that are outside the scope of this 

hearing. We want to make sure the hearing stays focused on the 

issue at hand. And again, I want to tell you we appreciate each and 

every one of you taking your time to be here. 

I now recognize the gentleman from Florida, Mr. Posey. 

I recognize the gentleman from Ohio, Mr. Johnson. 

Mr. JOHNSON. Okay. Thank you, Mr. Chairman. You know, I 

spent 26–1/2 years in the Air Force and I had—as a commander 

I had a lot of opportunities to deal with the Inspector General on 

many different occasions and issues, and I have got some real concerns this morning, Mr. Christensen, that I would like to address 

with you. 

The EPA Office of Inspector General’s September 13, 2013, report found no evidence that the EPA used, promoted, or encouraged 

the use of private nongovernmental email accounts to circumvent 

records management. Were you at the EPA at that time in the Inspector General’s Office at the time that investigation was done? 

Mr. CHRISTENSEN. I was within the EPA when that audit work 

was done. 

Mr. JOHNSON. In the Inspector General’s Office? 

Mr. CHRISTENSEN. Yes, sir. 

Mr. JOHNSON. Okay. This finding is even more surprising given 

that revelation of the use of this secret account led to both Administrator Lisa Jackson and senior official Scott Fulton’s resignation. 

What is puzzling to me is learning that the investigators never actually spoke with Administrator Lisa Jackson or Scott Fulton, who 

both were at the EPA when the OIG received the request for an 

investigation. 

In my experience with the Inspector General, certainly within 

the United States Air Force, the veracity of the investigation and 

the consequences and the accountability associated with the findings were taken very, very seriously by everyone. So why did the 

OIG fail to interview Administrator Jackson and Scott Fulton even 

though they were still at the agency when the investigation began? 

Mr. CHRISTENSEN. Sir, I was in a different position at that time 

and I would have to get back to you—— 

Mr. JOHNSON. Okay. Please get back to me. 

Mr. CHRISTENSEN. —because I did not—— 
61 

Mr. JOHNSON. How did the EPA Office of Inspector General conclude that senior officials did not use private or alias email addresses to circumvent records management without ever speaking 

to these individuals? I mean it is pretty common sense that there 

is no way they could have, correct? 

Mr. CHRISTENSEN. There could be other evidence but I would 

have to get back to you, sir, on that—— 

Mr. JOHNSON. Okay. Please get back to me on that. 

According to the testimony we have heard this morning, it appears that the office in charge of FOIA was not aware that the 

Richard Windsor email account was associated with Administrator 

Lisa Jackson. If this is true, then didn’t having an alias email account violate EPA’s own policies about having an unidentifiable 

email account? If that is true that that Richard Windsor account 

was associated with Administrator Jackson, didn’t that violate 

EPA’s own policies? 

Mr. CHRISTENSEN. I would have to look into that and get back 

to you. 

Mr. JOHNSON. Do you know the policy? 

Mr. CHRISTENSEN. I have seen the policy, sir. 

Mr. JOHNSON. As the Assistant Inspector General, if you know 

the policy, doesn’t that violate the policy? That is a yes-or-no question. 

Mr. CHRISTENSEN. I would have to get back to you and confirm. 

Mr. JOHNSON. Okay. Please do that also. 

The 2013 report’s finding that the EPA did not use private email 

to subvert the Federal Records Act also seems questionable given 

that Region 9 Administrator Jared Blumenfeld admitted to having 

misled your investigators and subsequently turned over 1,500 

pages of emails sent via his private email account. Are you aware 

that the Region 9 Administrator Mr. Blumenfeld admitted that he 

lied to your investigators about his use of that private email account for official business? 

Mr. CHRISTENSEN. I have heard that, sir, and it was the auditors 

and I think we have heard today that the government email was 

cc’ed on—— 

Mr. JOHNSON. Do you plan on amending your conclusions in your 

report to reflect that evidence? 

Mr. CHRISTENSEN. There is no plan right now, sir. 

Mr. JOHNSON. Why not? Are there no consequences in the EPA 

when violations of the EPA’s policies are conducted? Why would 

you not amend the report? 

Mr. CHRISTENSEN. That report was put out based on what we 

had at the time. 

Mr. JOHNSON. I said amendment. I said are you planning on 

amending the report? 

Mr. CHRISTENSEN. No, we are not, sir. 

Mr. JOHNSON. You are not? Okay. Well, I have got to question 

the veracity of the EPA’s OIG operation. When can we expect you 

to get back to me on the questions that you said you would get 

back to me on? 

Mr. CHRISTENSEN. We will get back to you this week, sir. 

Mr. JOHNSON. Okay. Very good. Thank you very much. 

Mr. Chairman, I yield back. 
62 

Chairman LOUDERMILK. Thank you. 

And as all Members are aware, there are votes currently going 

on on the Floor so this committee will stand in recess until ten 

minutes after the last vote. 

[Recess.] 

Chairman LOUDERMILK. If everyone will take their seat, we will 

reconvene this hearing. 

We appreciate your indulgence as we had to go deal with matters 

of the State. 

At this point the Chair recognizes the gentleman from Alabama, 

Mr. Palmer. 

Mr. PALMER. Thank you, Mr. Chairman. 

Mr. Christensen, I appreciate your willingness to be here and 

testify. I appreciate the work that the Inspector General’s Office 

does. It is absolutely critical to the functioning of our government. 

And I just want to ask you, in your work with EPA have you found 

them to be forthcoming? I mean when you have requested documents and other information, have they been forthcoming with 

you? 

Mr. CHRISTENSEN. Yes, sir. 

Mr. PALMER. Well, I find that interesting considering that the Inspector General for the EPA was one of 47 Inspectors General who 

sent a letter to the Committee on Oversight and Government Reform complaining that federal organizations, including the EPA, 

were impeding investigations by withholding information. Were 

you aware of that? 

Mr. CHRISTENSEN. Yes, sir. That was the deal with the CSB impeding an investigation. 

Mr. PALMER. My impression was it wasn’t just the CSB but do 

you agree with Mr. Elkins’ assessment that the EPA was not forthcoming? 

Mr. CHRISTENSEN. There have been times where the EPA has not 

been forthcoming at the beginning but eventually we have gotten 

all the documentation. 

Mr. PALMER. Now, in regard to the CSB matter, and this is in 

the context of the problems with EPA not coming forward, he said 

that this impairment by the EPA was ongoing when he arrived 

four years ago. Now, this testimony was given September 10, 2014, 

and he said it is still not resolved. And it seems to me that there 

is a culture here of almost, for lack of a better way to put it, lawlessness. 

Mr. CHRISTENSEN. I believe I stand corrected when I said CSB 

earlier. I believe that is with the Office of Homeland Security, sir, 

within EPA. 

Mr. PALMER. That particular reference was to Homeland Security; it was also in regard to the CSB. I have got the testimony 

right here. And I just want to ask you. Does it not seem odd that 

the EPA would in your opinion be cooperative when they haven’t 

been with other people? 

Mr. CHRISTENSEN. Ultimately, we have—for audits we have had 

cooperation ultimately. I think with the testimony you are talking 

about was with some of our investigations, which would be underneath the Office of Investigations. 
63 

Mr. PALMER. Okay. Dr. Schnare, in your testimony you talk 

about a culture of secrecy, and I just want to read something here 

that you said in your written testimony that says EPA prepared an 

83-page PowerPoint presentation on how to use electronic tools to 

collaborate with external partners. This presentation encourages 

use of instant messaging, other real-time correspondence tools, and 

even encourages using AOL and Yahoo and asking third parties to 

set up chat rooms, the purpose of which, according to this was, is 

that if it—it encourages employees to help outside parties to sponsor the web-based collaboration tools, noting that as long as we are 

only participants, not administrators of a web collaboration site, 

the site is not limited by those same FOIA and Public Records Act 

constraints. I can’t think of a better word to use than conspiracy. 

If you have got a better word for this, it seems that this is organized in an attempt to keep certain information from the public 

and from Congress for that matter. How do you respond to that? 

Dr. SCHNARE. Congressman, EPA employees, like many government employees, have the challenge of trying to do their job, stay 

on top of new technologies, use everything they can, and we encourage innovation, but there came a time in the Agency in 1980 

when we had a disagreements within the Agency. They were kept 

within the Agency and there was one point, and then at that point 

in time after there was a culture shift and there was a lot of leaking going on, a lot of whistleblowing without being called a whistleblower, it was a situation in which younger people at the Agency 

simply felt they should speak out on things they cared about personally and they disregarded the authority and the chain of command. It happened. 

Now, the next change in culture really came with the current Administration where in fact basically it was Katy bar the door; we 

are going to do anything we can. And so what we ended up seeing 

is a great deal of we will just keep this to ourselves. 

Mr. PALMER. Well, in regard to the 5,932 emails and the fact 

that, as I understand it, there are two months of text messages 

that are missing, it kind of begs the question how much work Ms. 

McCarthy was able to get done? I mean I don’t think my teenage 

daughters text that much. 

Mr. Chairman, I believe my time is expired. I yield. 

Chairman LOUDERMILK. Since it appears we have a few more 

minutes, we will do a short second round. The Ranking Member 

has agreed to that. 

And with that I will recognize myself for a question. 

Mr. Christensen, is there a written policy or an existing policy 

within the EPA that regulates or restricts the private use of cell 

phone—government/taxpayer-issued cell phone by employees of the 

EPA? 

Mr. CHRISTENSEN. Are you talking cell phone usage or with 

emails and text messages? 

Chairman LOUDERMILK. Well, since you can use the cell for text, 

for email, for all of those, I would anticipate that whatever policy 

would cover any use of the cell phone so—— 

Mr. CHRISTENSEN. Yes, in June 2013 the records management 

policy was amended to include the personal email and private— 

from private email, so that would cover the cell phone. Also in Feb-
64 

ruary 2015 the—they amended the records management policy to 

cover the text messaging. 

Chairman LOUDERMILK. You say they covered it. What is the regulation? Does it prohibit? Is there a certain number or amount that 

you can use? Specifically getting at—— 

Mr. CHRISTENSEN. It doesn’t get into anything on the number. It 

is just how you would do the records management for those. 

Chairman LOUDERMILK. So if the information that we are getting 

is correct, that for a four-year period that cell phone in question 

was used exclusively—text message-wise exclusively for personal 

use, you are saying an exclusive personal use of a cell phone would 

not violate existing EPA policy? 

Mr. CHRISTENSEN. There was none that I know of but I would 

have to get back to you on that, sir. 

Chairman LOUDERMILK. Dr. Schnare, is that a common—in your 

experience in the EPA, using a taxpayer-funded device exclusively 

for personal use, was that a common practice or was it known to 

violate at least common practice or some type of policy? 

Dr. SCHNARE. Mr. Chairman, the policy is laid out in our email 

policy, not in our records management policy. And it is clear that 

while there are uses—and this was—this was what happened when 

the internet first came in and was used a lot—it was made clear 

that the use of email and voiceover protocol and the like for personal purposes could be done but should not be the dominant use. 

And so, yes, you are allowed to do some of that and it was more 

on the order of, honey, I am on my way home or please pick up 

a loaf of bread, but for the exclusive use for personal purposes 

would just be—it is not done that way. I don’t know anyone that 

would do it that way. 

Chairman LOUDERMILK. Mr. Wester, I know that this is outside 

of your purview of the actual regulations, but with your working 

with other agencies, have you encountered to where a public-funded or taxpayer-funded government-issued device was allowed to be 

exclusively used for personal use? 

Mr. WESTER. I am not familiar with anything like that. Most 

agencies have appropriate-use policies for different kinds of office 

equipment that is given to them, and that is usually where those 

kinds of things are covered. 

Chairman LOUDERMILK. Okay. Thank you. 

With that, I now recognize Mr. Beyer for five minutes. 

Mr. BEYER. Thank you, Mr. Chairman. 

Chairman Loudermilk, one thing that I would love to clarify is 

that Members from the majority today have made statements 

about Lisa Jackson leaving the EPA over the Richard Windsor 

email issue, and I just never heard that before on our side and not 

necessarily right now but if the majority could share the source of 

that information, we would very much appreciate it. 

Mr. Christensen, we mentioned the Chemical Safety Board, the 

CSB. Is that part of the EPA? 

Mr. CHRISTENSEN. It is not part of the EPA but the EPA OIG has 

jurisdiction over the Chemical Safety Board. 

Mr. BEYER. So it is your responsibility but it is an independent 

agency? 

Mr. CHRISTENSEN. Yes, sir. 
65 

Mr. BEYER. So if they have had problems with transparency and 

the like, it does not necessarily reflect poorly on the EPA? 

Mr. CHRISTENSEN. That is correct, sir. 

Mr. BEYER. How many employees does the EPA have, Mr. 

Christensen? 

Mr. CHRISTENSEN. Just over 15,000 right now, between 15 and 

16,000. 

Mr. BEYER. I know this is an evolving art but do you have any 

idea how many text messages from each employee would be considered a federal record? 

Mr. CHRISTENSEN. I have no idea on that, sir. 

Mr. BEYER. Certainly not every text message, though. I am just 

trying—we are trying—— 

Mr. CHRISTENSEN. I have no information to respond to that, sir. 

Mr. BEYER. I am trying to do the math on 2009, six years times 

15,000 employees times the number of text messages and wondering how much time, effort, and money it is going to take to review all that. 

Mr. CHRISTENSEN. It would be a big effort, sir. 

Mr. BEYER. When the GAO and the IG are asked to work together on the same issue, how do you work that out? 

Mr. CHRISTENSEN. We haven’t been asked to work together on 

any issue that I know of, sir. 

Mr. BEYER. Okay. You have certainly been doing this for a while. 

Does the issuance of the subpoena by this committee, will that 

interfere in any way with your ability to carry out a timely investigation? 

Mr. CHRISTENSEN. It shouldn’t impact our audit work, sir. 

Mr. BEYER. Mr. Chairman, that is all I have so I yield back. 

Chairman LOUDERMILK. I thank the gentleman and recognize the 

gentleman from Texas, Mr. Babin, for five minutes. 

Mr. BABIN. Thank you, Mr. Chairman. 

With an Administration that has claimed that it would be the 

most transparent in history, we seem to have a repeated pattern 

of the exact opposite. I believe we need a new level of accountability not only at the EPA but for this entire Administration. 

And, Dr. Schnare, in your opening statement you describe a culture of secrecy at the EPA. What can be done in the future to ensure more accountability and transparency in terms of what the 

leadership should be telling folks? 

Dr. SCHNARE. I am going to offer you something I have been 

thinking about in that regard. I don’t believe it is possible to easily 

motivate or to alter the culture at the top of an agency but I do 

think there are some things that could be put in place that would 

have an effect on the career employees who can actually change the 

culture on their own. 

It is very difficult to reprimand a person for failing to follow the 

Freedom of Information Act. They are never credited for doing a 

good job; it is just part of that ten percent other duties as assigned. 

But I believe that if there were a sanction that went to the pocketbook of the employee—— 

Mr. BABIN. Yes. 

Dr. SCHNARE. —that said you don’t do that job and you suffer a 

$5,000 fine out of your own pocket, then the employee would go up 
66 

his management chain and say I am not doing that for you, sir. 

Ma’am, I am giving these emails away. Because they are not going 

to put themselves at risk. And so that is something that this body 

would have to look at, what kind of sanctions would be available, 

but presently, there really are none. 

Mr. BABIN. But you—if I understood you to say the senior leadership at the agency or any agency for that matter, they are the ones 

that need to set the standard and they lead to a culture of secrecy 

or not, don’t you agree? 

Dr. SCHNARE. Congressman, policy is personnel. There is no way 

around it. 

Mr. BABIN. Right. 

Dr. SCHNARE. It is the people that make the difference. All I am 

suggesting to you is that in this town over my last 40 years that 

is not an approach that I see as very helpful. People do what they 

do. But I do think there are ways to get to it that would have a 

greater effect by making the public servants, the people who come 

into government particularly because they want to serve and who 

are honest and good people. 

Scott Fulton’s name was mentioned earlier today. Scott Fulton is 

one of the most honorable men I know. He is a great guy. What 

happened and how he was involved in an investigation I have no 

idea but I know this: Scott Fulton is not the kind of guy who would 

lie, cheat, or steal. 

Mr. BABIN. Well, and I have heard the opposing side, the other 

side today talk about thousands and thousands, the vast volume of 

emails or texts. Does that really matter whether it is a vast volume 

or whether it is just a few? 

Dr. SCHNARE. Let me just share very simply—— 

Mr. BABIN. It is still a record. It is a record. 

Dr. SCHNARE. That is right. And in a case I brought against EPA, 

when we settled the matter, EPA came to me and said as part of 

the settlement we are going to require Region 10 to—every employee in Region 10 to be re-trained on FOIA because clearly they 

did not respond adequately in this case. That wasn’t our request 

and I don’t really think it came from EPA. I think it came from 

the AUSA who was trying to negotiate a deal. 

But the reality is it is up to the individuals to do the job and you 

have got to give them the tools. And I credit the Agency and in particular Larry Gottesman, for doing a wonderful job in getting the 

tools available. It is, however, the culture. 

Mr. BABIN. All right. Following that up then, during your time 

at the EPA, how often was agency staff reminded that what they 

were working on could be construed as federal records and that 

would need to be preserved? Did you hear this? Did you experience 

it? 

Dr. SCHNARE. Well, we had—with some regularity there was an 

online training the folks had to do and they do regular time. Now, 

at the end of my career I was a lawyer and we had to do more 

training than most so I don’t know how it reached out to everyone. 

But every employee that comes into the agency is required to get 

FOIA training. What we found, though, in our recommendations 

briefly was that no one remembers it. So when we built the system 

to try to help people do it, we helped re-teach them what their re-
67 

sponsibilities were, but that doesn’t reach to text messages, it 

doesn’t reached to clearing out your own email box for the most 

part. 

Mr. BABIN. And it needs to be so. 

Dr. SCHNARE. I agree, sir. 

Mr. BABIN. Okay. Thank you very much. I yield back, Mr. Chairman. 

Chairman LOUDERMILK. Thank you, Mr. Babin. 

Mr. PALMER. Would you yield the balance of your time? 

Chairman LOUDERMILK. The Chair will recognize Mr. Palmer for 

five minutes. 

Mr. PALMER. Thank you, Mr. Chairman. 

I just want to make a clarification in regard to the testimony by 

Arthur Elkins, the Inspector General for the EPA, that that was 

specific to the EPA. And I will read from the testimony a question 

asked by Congressman John Mica, a Republican on the Oversight 

and Government Reform Committee, and he says this, he says, 

‘‘Mr. Elkins, with the EPA it appears that actions taken by the 

EPA in really ignoring you and allowing whistleblowers and others 

to be intimidated, this has undermined your position as Inspector 

General to conduct your legitimate investigative oversight responsibilities. Would that be a fair statement?’’ Mr. Christensen, I 

would like to add this to my comments to you, that Mr. Elkins’ response was, ‘‘yeah, that would be a fair statement.’’ 

So in regard to this pattern of obstruction and impeding investigations, I think it is fairly clear. In regard to the comments made 

to Dr. Schnare about coming forward, I think that when you add 

to the impeding of information being brought forward, the withholding of documents and atmosphere of intimidation, I do believe 

there is a culture at EPA that needs to be thoroughly investigated. 

I yield the balance of my time. 

Chairman LOUDERMILK. First of all, I want to thank the witnesses for your attendance here today and your testimony. There 

is still a lot that needs to be determined here and hopefully as we 

receive the results from our subpoena that we will be able to continue on. 

We would like to in the future have more cooperation out of 

these agencies, especially when we are just trying to do the will of 

the people and make sure that we are following our own laws and 

policies. 

The record will remain open for two weeks for additional written 

comments and written questions from the Members. This hearing 

is adjourned. 

[Whereupon, at 12:42 p.m., the Subcommittees were adjourned.] 

(69) 

Appendix I 

ANSWERS TO POST-HEARING QUESTIONS
70 

ANSWERS TO POST-HEARING QUESTIONS

Responses by Mr. Paul M. Wester, Jr. 
71 
72 
73 
74 
75 
76 
77 
78 
79 
80 

Responses by Mr. Kevin Christensen 
81 
82 
83 
84 
85 
86 
87 
88 

Responses by Dr. David Schnare 
89 
90 
91 
92 
93 
94 
95 
96 
97 
98 
99 
100 
101 
102 
103 
104 
105 
106 
107 
108 
109 

(111) 

Appendix II 

ADDITIONAL MATERIAL FOR THE RECORD
112 

MCCARTHY TEXT
113 
114 
115 
116 

EPA WEB COLLABORATION TOOLS
117 
118 
119 

SENATE EPW LETTER TO EPA OIG 
120 
121 
122 
123 

EPA OIG 2013 REPORT RE EPAS USE OF

PRIVATE AND ALIAS EMAIL ACCOUNTS
124 
125 
126 
127 
128 
129 
130 
131 
132 
133 
134 
135 
136 
137 
138 
139 
140 
141 
142 
143 
144 
145 
146 
147 
148 
149 
150 

SENATE EPW MINORITY REPORT RE EPAS FOIA AND

FEDERAL RECORDS FAILURES UNCOVERED
151 
152 
153 
154 
155 
156 
157 
158 
159 
160 
161 
162 
163 
164 
165 
166 
167 
168 
169 
170 
171 
172 
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174 
175 
176 
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185 

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