Donald Trump, left, shakes hands with Kristi Noem at a campaign rally on Saturday, March 16, 2024, in Vandalia, Ohio (AP Photo/Jeff Dean).
A left-leaning nonprofit watchdog group received a mea culpa about a "misunderstanding" from the U.S. Department of Homeland Security, weeks after filing a lawsuit claiming that Secretary Kristi Noem's agency appeared to be violating a legal mandate to preserve text messages and other "electronic" records.
On Oct. 20, American Oversight filed a Freedom of Information Act (FOIA) suit in U.S. District Court for the District of Columbia, alleging DHS' statement that "text message data" about government business "generated after April 9, 2025, is no longer maintained" was a straightforward violation of the Federal Records Act.
An additional subsequent statement that "DHS no longer has the capability to conduct a search of text messages" likewise evinced a violation of FOIA, the plaintiff said, telling Noem and acting Archivist Marco Rubio at the National Archives (NARA) to "take their respective statutorily required actions to recover all unlawfully destroyed records."
The lawsuit followed demands for texts and other electronic records, like Signal messages and emails, involving Noem and other DHS officials about the deployment of the National Guard to Los Angeles, "Alligator Alcatraz," Kilmar Abrego Garcia, and even texts "sent or received" by Secretary of Defense Pete Hegseth's brother Philip Hegseth, identified as "DHS's liaison and senior advisor at the Pentagon."
On Wednesday, a joint status report hit the docket, including a declaration from DHS' Chief Data Officer Michael Weissman.
In that declaration, Weissman explained that technology changes resulted in both a "misunderstanding" and "erroneous information" to American Oversight about DHS' record retention capabilities and practices.
"DHS policy requires the retention of all electronic federal records, as required by law. The way technology is used by DHS to preserve federal records, including electronic messages, however, has changed, which led to the misunderstanding about how the Department preserves electronic messages and the erroneous information provided to Plaintiffs in response to the Freedom of Information Act (FOIA) requests that are the subject of this Complaint," Weissman stated, under penalty of perjury.
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In a lengthier technical explanation, the chief data officer averred that "cybersecurity failures" led the government to move away from message archiving software TeleMessage in April, necessitating DHS employees to "manually archive messages" in screenshots stored in "Shared Drive work folders" or, in this case of senior officials like Noem, having a technician "manually access the device and use forensic tools to archive a copy of the device, including all electronic messages, which can then be searched[.]"
Weissman added that DHS investigated itself and found "no evidence that any" records have been destroyed.
"Nevertheless, a litigation hold has been issued that includes each of the named custodians, and DHS has uncovered no evidence that any federal records have been destroyed or that individual employees are not following DHS policies," the declaration continued. "DHS policies have never authorized employees to destroy records. Although DHS is working to identify new, secure, technical solutions to allow automatic archiving of electronic messages, DHS has always maintained Department-wide policies requiring all federal records to be preserved, including those sent by electronic message."
American Oversight appears pleased about the "erroneous information" admission but remains unconvinced about DHS' compliance with the law.
"DHS has now admitted that it provided inaccurate information about whether Secretary Noem's and other top agency officials' text messages were properly preserved," American Oversight Executive Director Chioma Chukwu said in a statement. "We're talking about messages exchanged amid major national controversies — from the deployment of military forces on American streets to inhumane immigration crackdowns and deportations carried out in defiance of court orders."
"The public deserves to know whether these records still exist, and whether officials destroyed evidence of how those decisions were made. After misleading us for months, DHS wants us to trust that the law is being followed," Chukwu added. "But the agency has not turned over the records we requested nor has it provided details about whether senior officials' text messages have been preserved in accordance with the law. It's time for transparency — not more empty assurances."