But based on my experience in a half-dozen currently active lawsuits involving records requests to federal agencies, including the SEC, political appointees and other federal regulators regularly engage in the same sort of practices. Regulators are bound by requirements similar to those covering banks and traders, thanks to laws such as the Freedom of Information Act and the Federal Records Act. My FOIA clients seek particular “non-email electronic communications,” which is what the SEC calls messages on non-email platforms, including texts, encrypted messages on Signal or WhatsApp, or even logs of typed chats in Teams or Zoom.
Based on my FOIA cases, it appears that officials in the Biden White House, SEC and Federal Energy Regulatory Commission use chats extensively, arguably as an alternative to “.gov” email accounts. Evidence strongly suggests these are going unsearched in response to many requests for correspondence—unless the requester knows to seek them specifically. The same is true for the use of private phones and encrypted apps. Unless they’re specifically listed in a request, it seems that they often won’t be included.
‘Enforcement 40’ for 2020
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