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Management Implication
Report: The EPA Failed
to Comply with the OIG’s
Preservation Requests
for Access to Mobile
Device Information
June 4, 2024 | Report No. 24-N-0045
Any request for public release must be sent to the EPA OIG for processing under the Freedom of Information Act.
To report potential fraud, waste, abuse, misconduct, or mismanagement, contact the OIG Hotline at (888) 546-8740 or OIG.Hotli[email protected].
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OFFICE OF INSPECTOR GENERAL
U.S. ENVIRONMENTAL PROTECTION AGENCY
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June 4, 2024
MEMORANDUM
SUBJECT: Management Implication Report: The EPA Failed to Comply with the OIG’s Preservation
Requests for Access to Mobile Device Information
FROM: Paul H. Bergstrand, Assistant Inspector General
Office of Special Review and Evaluation
TO: Kimberly Patrick, Principal Deputy Assistant Administrator
Office of Mission Support
Purpose: We are alerting the U.S. Environmental Protection Agency to the need to ensure that mobile
devices for separating employees are properly preserved and timely accessible to the Office of Inspector
General to prevent the loss of evidence and other relevant records. The EPA OIG is conducting an
administrative investigation of a senior official for alleged ethics violations. In 2024, we notified
the EPA Office of Mission Support that the senior official intended to leave, or separate from, the Agency
in 2024, and we requested that the OMS preserve the information on the senior official’s
electronic devices. Upon the senior official’s separation 30 days later, the OMS received five electronic
devices from the official but failed to retain the three mobile devices in a way that would allow us or the
Agency to access the information stored on them. As a result, we have been unable to retrieve the
information and any potential federal records on these devices that may be relevant to our investigation,
including text messages, telephone contact lists, and other forms of messaging.
Background: The Federal Records Act requires that every federal agency, including the EPA, “make and
preserve records containing adequate and proper documentation of the organization, functions,
policies, decisions, procedures, and essential transactions of the agency.” 44 U.S.C. § 3101. These records
serve to furnish information necessary for protecting both the legal and financial rights of the
government and individuals directly affected by an agency’s activities. Id. The definition of a federal
record includes electronic messages, which encompass SMS texts, chat and instant messaging, and other
forms of digital communication.
At the EPA, the Records Management Policy, Directive No. CIO 2155.5 (August 17, 2021), outlines
principles, responsibilities, and requirements for managing the Agency’s records, which include “all
records, regardless of format or medium, made or received by EPA personnel under federal law or in
connection with the transaction of public business, and preserved or appropriate for preservation as
Any request for public release must be sent to the EPA OIG for processing under the Freedom of Information Act.
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evidence of EPA functions, organization and activities or because of the value of the information they
contain.” For example, each EPA program office and region must establish and maintain a records
management program that meets the prescribed minimum requirements, including “[m]anag[ing]
records in any format (e.g., paper, emails, IMs [instant messages], text messages, … and other social
media tools that generate communications) in accordance with applicable statutes, regulations, and EPA
policy and guidance”; “[m]aintain[ing] electronic records (e.g., IMs, text messages, electronic
documents, … and other social media tools that generate communications) in an approved electronic
records system”; and “[m]aintain[ing] records so they can be accessed for appropriate business reasons
by staff who have a need to know the information.”
The EPA has a number of other directives that relate to the identification and preservation of Agency
information, including Preservation of Separating, Transferring or Separated Personnel Records,
Directive No. CIO 2155-P-04.2 (June 6, 2022), and Preserving Agency Information of Separating
Personnel, Directive No. 2155-P-07.1 (July 28, 2021). Notably, these directives do not provide
instructions for preserving mobile device information subject to an OIG preservation request.
The Inspector General Act of 1978, as amended, grants the OIG “timely access to all records, reports,
audits, reviews, documents, papers, recommendations, or other materials available to” the EPA which
relate to the programs and operations of the Agency and for which the OIG has investigative and other
responsibilities. 5 U.S.C. § 406(a)(1)(A). Separately, as a matter of policy, the EPA has expressly
acknowledged the OIG’s right to access all records and materials available to the EPA and to “[c]onduct
any investigation and issue any reports which the Inspector General deems necessary or desirable.” EPA
Manual 6500, Functions and Activities of the Office of Inspector General (1994). The manual also requires
employees to cooperate and provide assistance during any OIG audit or investigation. The EPA
administrator recently reaffirmed these authorities in a May 16, 2023 email to all employees, reminding
the “agency and its employees [that they] have a duty to cooperate with OIG.”
Concerns Identified: We notified a senior official that they were the subject of an ongoing administrative
investigation.
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As part of that notification, we reminded the senior official that they were responsible
for ensuring that the computer systems and other electronic devices on which they conducted
government business, including any government cell phones, remain intact and that no information,
including electronic communications such as text messages, be deleted, lost, unpreserved, or destroyed
from these devices, intentionally or unintentionally. In 2024, we notified the OMS that the senior
official was separating from the Agency and that it should preserve that official’s electronic devices so
that we could access them.
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While our administrative investigations, which are still ongoing, are being conducted in accordance with applicable
standards and policies, including the Council of the Inspectors General on Integrity and Efficiency’s Quality Standards for
Federal Offices of Inspector General, the work related to this memorandum does not constitute an administrative
investigation done in accordance with those standards. We did, however, follow the OIG’s quality control procedures for
ensuring that the information in this report is accurate and supported.
Any request for public release must be sent to the EPA OIG for processing under the Freedom of Information Act.
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Soon after the OIG notification, the senior official separated from the Agency and returned five electronic
devices, including three mobile devices, to the OMS. We subsequently requested access to these
electronic devices; however, the OMS provided the three mobile devices in a state in which information
from these devices could not be retrieved. Specifically, the OMS disconnected service to the mobile
devices after the official’s separation but prior to their delivery to the OIG, which jeopardized the
preservation of, and our access to, information on those devices. Despite several attempts by OIG and
OMS personnel, as well as assistance by another law enforcement agency, we have been unable to
access the information on the three mobile devices. Furthermore, because of the failure to preserve the
mobile devices in a manner that would allow us or the Agency to access them, it is unclear whether the
information and any potential federal records on those devices have been preserved.
We are concerned that this is not an isolated issue. Recently, we notified another senior official of an
ongoing OIG administrative investigation into their alleged ethics violations. Like we did in our request
for the other unrelated administrative investigation, we notified the OMS of this senior official’s intent
to separate from the Agency and requested that the OMS preserve the information on that official’s
electronic devices. After this second senior official separated, the OMS was prepared to disconnect
service to the official’s mobile device—the same action that led to access issues with the first senior
official’s mobile devices. But for our immediate intervention, the OMS would have caused other mobile
devices and the information on those devices to become inaccessible and potentially unretrievable.
My office is notifying you of these concerns so that the Agency may take whatever steps it deems
appropriate. If you decide it is appropriate for your office to take or plan to take action to address these
matters, we would appreciate notification of that action. Should you have any questions regarding this
report, please contact Kristin Kafka, deputy assistant inspector general for Administrative Investigations,
cc: Sean W. O’Donnell, Inspector General
Janet McCabe, Deputy Administrator
Jeffrey Prieto, General Counsel
Vaughn Noga, Chief Information Officer and Deputy Assistant Administrator for Information
Technology and Information Management, Office of Mission Support
Helena Wooden-Aguilar, Deputy Assistant Administrator for Workforce Solutions and Inclusive
Excellence, Office of Mission Support
Dan Coogan, Deputy Assistant Administrator for Infrastructure and Extramural Resources, Office of
Mission Support
Stefan Martiyan, Director, Office of Continuous Improvement, Office of the Chief Financial Officer
Yulia Kalikhman, Acting Director, Office of Resources and Business Operations, Office of
Mission Support
Afreeka Wilson, Audit Follow-Up Coordinator, Office of Mission Support
Whistleblower Protection
U.S. Environmental Protection Agency
The whistleblower protection coordinator’s role
is to educate Agency employees about
prohibitions against retaliation for protected
disclosures and the rights and remedies against
retaliation. For more information, please visit
the OIG’s whistleblower protection webpage.
www.epaoig.gov
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