September 9, 2015

Cause of Action, a nonprofit, nonpartisan government accountability organization, is suing the Export-Import Bank (Ex-Im) and demanding a congressional investigation into the alleged improper deletion of public records.

Responding to a public records request, Ex-Im claims its chief of staff, Scott Schloegel, "accidentally" deleted text messages the group was seeking about a month and a half after the request was received.

‘Sorry, We Deleted Those Records’

Scott Nelson, an attorney for the nonprofit consumer advocacy organization Public Citizen, says Ex-Im’s record purge is unusual.

"I would say that it is not a frequent occurrence to have it come out that records responsive to a [Freedom of Information Act] request were destroyed during the pendency of the request," Nelson said.

"I was once involved in a case where some computer backup tapes were said to have been mistakenly destroyed while a [Freedom of Information Act] case was pending, but it doesn’t often happen in my experience that you send in a [Freedom of Information Act] request and get a response saying, ‘Oh, sorry, we deleted those records while your request was pending,’" said Nelson.

Getting Away With It

"If a federal officer is actually found to have destroyed federal records, he or she could theoretically be charged with a crime ... under 18 U.S.C., Section 2071, which makes it a crime to conceal, remove, mutilate, obliterate, or destroy a federal record filed with any public office or officer of the United States, or possibly under 18 U.S.C., Section 1361, which makes it a crime to injure or commit any ‘depredation’ against property of the United States," said Nelson.

"I wouldn’t hold my breath waiting for prosecutions of federal officers or employees in circumstances like this under any administration," said Nelson. 

Lack of Transparency Seen

Adam Andrzejewski, chairman of the government watchdog group American Transparency, says Ex-Im has become less accountable and transparent to taxpayers in recent years.

"The Export-Import Bank has removed most PDF files from its public website, and even removed line-by-line loan transactions for a time during the reauthorization debate," Andrzejewski said. "Within its disclosed loan activity database, we found there are $26.5 billion of transactions hidden under the headings of ‘undisclosed’ or ‘to be determined’ since 2007."

Andrzejewski says lawmakers are obligated to investigate Ex-Im’s lack of transparency.

"The heads of federal agencies have a responsibility to act quickly to mitigate damage when [given] notice of potentially unlawful record destruction," Andrzejewski said. "In this case, the matter needs investigation."

Rudy Takala ([email protected]) writes from Washington, DC.

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