General counsel says he broke DVDs to prevent them from becoming public records.
A NASA lawyer may have violated federal law in destroying video recordings of an April meeting between the agency's chief and inspector general staff, a House lawmaker said Thursday.
NASA General Counsel Michael Wholley told the House Science and Technology Subcommittee on Investigations and Oversight that he had broken and destroyed DVD recordings of an all-hands meeting on April 10, during which NASA Administrator Michael Griffin addressed IG staff.
The meeting was convened so that Griffin could speak to IG employees about the results of a formal investigation into the actions of their boss, Inspector General Robert Cobb. The President's Council on Integrity and Efficiency, a council of inspectors general that looks into allegations against IGs, recently had concluded an investigation that found Cobb had created an abusive work environment and the appearance of a lack of independence from agency leadership.
During the meeting, which was videocast to IG staff around the country, Griffin reportedly expressed support for Cobb, noting that the investigation did not find an actual lack of independence, and said he supported a strong and effective IG office.
Wholley, the general counsel, told lawmakers that he later learned from agency Chief of Staff Paul Morrell that recordings had been made of the meeting, counter to a prior instruction that no taping take place. After receiving what he believed were the only copies of the offending DVD from Morrell, Wholley said, "I personally made the decision to destroy them, and I did so by breaking them into pieces and throwing them in the trash."
Wholley said before destroying the tapes, he consulted the Federal Records Act and concluded that they did not constitute official records, but that if copies were retained, they would become official records and subject to disclosure under the Freedom of Information Act.
Wholley testified that he felt the meeting could hurt the administrator. In an e-mail from Wholley to Morrell sent prior to the videocast meeting and distributed at the hearing by committee staff, Wholley wrote that he was concerned that such a meeting could only make Griffin look bad.
"I see no 'upside' for Mike [Griffin] in the proposed [course of action], and I do see a downside," Wholley wrote. He warned that if Griffin spoke critically of the IG, it would lend credibility to the complaints, while if he praised the IG, it would shift the controversy to himself.
Rep. James Sensenbrenner, R-Wis. and ranking member of the subcommittee, questioned Wholley closely on the decision to destroy the DVDs. Sensenbrenner said that as a record dealing with the function and operation of a federal agency, made at government expense, the tapes were public records and were thus protected by law.
During the hearing, an assistant IG testified that Griffin's statements during the meeting had stirred additional concern among her staff. She reported several staff concerns, including a perception that the administrator would only take action on findings that would save $1 billion or more -- difficult at an agency whose total budget is about $16 billion per year.
Wholley told the committee that employee accounts of the meeting "range from the patently false to the ridiculous." But Rep. Brad Miller, D-N.C., chairman of the committee, stressed that Wholley's destruction of the video evidence generally would be considered damning in court.
Speaking after the hearing, Miller said he thought the destruction of the DVDs was "at best, extremely poor judgment." He said Sensenbrenner had proposed submitting a joint letter to the attorney general requesting a criminal investigation into the destruction of government property.
Miller said there were "clear questions" on the propriety of destroying the videos when Wholley was aware of the oversight committee's interest. The committee in March considered issuing subpoenas to obtain a copy of the investigative report on Cobb, but the IG council ultimately turned it over to lawmakers voluntarily.
Despite his misgivings about the DVD incident, Miller expressed support for Administrator Griffin, calling him "a breath of fresh air" for NASA in comparison to his predecessor, Sean O'Keefe. "Sean O'Keefe had all the interest in aeronautics and space that [former Federal Emergency Management Agency director] Michael Brown showed in emergency management," Miller said.
He noted that there are additional outstanding complaints against Cobb. Those complaints -- allegations that the IG retaliated against whistleblowers -- were referred to the Office of Special Counsel for follow-up, Miller said.