As recent years have demonstrated, text messages have become an increasingly common method of communication among federal officials — messages the government must be just as diligent about preserving as it is required to be when it comes to other public records. But recent revelations that Seema Verma, who served as the head of the Centers for Medicare and Medicaid Services in the Trump administration, had lost her agency-issued cell phone bring renewed attention to serious shortcomings in fulfilling that transparency obligation.
Verma’s lost phone was revealed in the course of American Oversight’s Freedom of Information Act litigation seeking the release senior officials’ text messages related to the coronavirus pandemic. We sued in November to further ensure the preservation and release of those records, which could shed light on how top officials at the Department of Health and Human Services responded to the pandemic.
The government argued that text messages responsive to our FOIA requests couldn’t be searched for and produced until after officials surrendered government devices at the end of their employment. But on Feb. 26, the government informed American Oversight that CMS reported that Verma lost her government-issued smartphone during her final days at her post.
In fact, the device was misplaced in an airport two days before President Joe Biden’s inauguration, according to a status report to the court filed May 14. The government said CMS’s Mobile Device Team then sent a command from agency servers “to deactivate Ms. Verma’s lost device, thus resetting it to its factory settings and removing it of all user data.” Doing so also made it impossible to remotely locate the device via the “Find my iPhone” feature, the report said.
Verma was assigned another device for her last days in office, but the agency was later unable to access any information stored on that device because, according to her assistant, Verma forgot the passcode needed to unlock it. The device was wiped on March 10 after an IT process “operating in its normal course and in compliance with [agency policies] automatically deactivated Ms. Verma’s mobile device and removed it of all user data,” according to the government.
The government’s efforts to recover similar records from other top officials named in American Oversight’s suit, including former CDC Director Robert Redfield, have also fallen short. During a court teleconference on April 19, American Oversight noted that the government’s strategy for preserving records in this case had failed in five out of the six officials covered in the suit, including Verma. It wasn’t until after this teleconference — April 22 — that the government contacted those officials about whether they had taken steps to preserve records that were potentially responsive to American Oversight’s requests.
Verma emailed CMS’s FOIA officer on April 26, saying that all of her work-related text messages had been sent or received on a CMS-issued mobile device and she had returned all her devices to the agency — not addressing the device she reported lost, according to the government’s report.
In a May 18 status report to the court, American Oversight inquired as to whether Verma and other senior CMS officials’ records might be stored on the external servers of service providers like Apple and if so, what steps had been taken or would be taken to retrieve them. American Oversight has also filed an additional FOIA request for information about Verma’s lost device, including about how it was lost and what efforts had been taken to recover it.
American Oversight previously obtained calendars for Verma spanning March 2017 through May 2018, which showed several calls and meetings with GOP consultant Brett O’Donnell, one of the contractors hired by Verma with millions in taxpayer dollars to elevate her media profile, as first reported by Politico. Verma also gained notoriety for requesting that taxpayers cover the $47,000 worth of luxury items she said were stolen after giving a speech on behalf of the government in 2018.
Months after the government first told American Oversight about Verma’s missing device, the issue of preserving any government records stored on the phone as required by law remains unresolved. In the case of Verma’s lost phone, the government’s apparent inability to produce records of vital public interest is a matter of serious concern.
“People lose their phones all the time, and cloud-based back-ups of mobile device data have been widely available to the public for years,” American Oversight’s Austin Evers told Politico, which reported on the lost phone last week. “The federal government has a legal obligation to preserve agency records, and there’s no excuse at this point in time for failing to do so.”
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