Deletion of key documents related to Congressional oversight likely violated federal law

WASHINGTON, D.C. – U.S. Senate Commerce Committee Ranking Member Ted Cruz (R-Texas), House Judiciary Chairman Jim Jordan (R-Ohio), and House Oversight Chairman James Comer (R-Kentucky) this week sent a bicameral letter to the Federal Trade Commission (FTC) Chairwoman Lina Khan demanding answers regarding the agency’s failure to preserve records. This failure likely violated federal law and impeded Congressional oversight of the FTC’s recent unprecedented actions, including its controversial proposed rule banning non-compete clauses. Specifically, Sen. Cruz, Reps. Jordan and Comer are seeking an explanation of why the FTC improperly destroyed records, what records it improperly destroyed, and what steps will be taken to ensure it never happens again.

As Sen. Cruz, Reps. Jordan and Comer wrote:

Federal law imposes important recordkeeping requirements on the FTC. […] It turns out the FTC has struggled to comply with the law. In a February 2022 memorandum, the FTC Office of Inspector General (“OIG”) “alert[ed] FTC leadership” to two key issues with the FTC’s records management processes: the agency (1) was not adhering to the National Archives and Records Administration (“NARA”) records scheduling requirements and (2) had not set up “automated practices for properly storing and timely disposing of records in a uniform manner across the agency.” The OIG found it “[p]articularly noteworthy” that “the Bureau of Competition and the Bureau of Consumer Protection do not use a comprehensive case management system for their case files” and that FTC management had “no plans” to store files on the FTC’s cloud platform, rather than various shared drive folders. In response to the OIG’s findings, you stated that you were “committed to ensuring appropriate management controls are in place and operating as intended.”

Despite these warnings and your assurances, the FTC in all likelihood improperly deleted records. In February of this year, for example, Chairman Jordan requested documents and information regarding the FTC’s proposed rule to ban non-compete clauses—a rule that, as Chairman Jordan’s letter explained, “exceeds [the Commission’s] delegated authority and imposes a top-down, one-size-fits-all approach that violates basic American principles of federalism and free markets.” Three months later, the FTC informed House Judiciary Committee staff that it had “deleted material likely responsive to the Committee’s requests,” including records of the employee on detail from the Consumer Financial Protection Bureau who led the FTC’s rulemaking[…]

To date, the FTC has not adequately addressed concerns about its record retention policy. The agency has not explained how documents were deleted related to a rulemaking that the FTC should have known would face litigation, FOIA requests, and Congressional oversight. In addition, the FTC has not explained how federal records from senior advisors at the FTC could be deleted, regardless of whether there were litigation or other holds placed on the documents.

The FTC’s deletion of documents responsive to a Congressional inquiry underscores the OIG’s conclusion in 2022 that “the FTC has not prioritized records management nor embedded it as a value in the agency’s culture.” Moreover, it suggests that the agency is not committed to complying with the law, and that it may continue to delete records that are relevant to ongoing investigations. This is not how a federal agency should be run.

In addition, Sen. Cruz, Reps. Jordan and Comer requested information regarding the deletion of documents related to a list of past Congressional oversight probes. They are seeking, among other information, the names of the employees whose records were deleted, the format of the deleted records, the number of deleted records, why they were deleted, who deleted them, and what efforts the FTC has taken, if any, to recover them.

The full text of this letter is available HERE.

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