American Oversight Seeks Emergency Court Relief Over Apparent DHS Cover-Up of Text Messages by Noem, Other Top Officials

On Monday, American Oversight filed a lawsuit against the Department of Homeland Security (DHS), Secretary Kristi Noem, the National Archives and Records Administration (NARA), and Acting Archivist Marco Rubio, over the failure to preserve text messages from Secretary Noem and other top DHS officials. We also filed a preliminary injunction to preserve or recover these records – if they still exist – while the case proceeds, and to require the agency to develop policies to ensure ongoing text message preservation.

In late August, DHS informed us that it can no longer search for text messages belonging to Noem and other senior DHS officials — and that text messages created since April are “no longer maintained.” Those admissions, made in writing to the nonpartisan watchdog, contradict DHS’s shifting explanations to the press and could suggest a coordinated effort to erase or conceal official communications.

The April timing of DHS no longer maintaining text messages appears to coincide with heightened public scrutiny of the department’s inhumane immigration enforcement actions, including the wrongful removal of Kilmar Abrego Garcia. According to public reporting and whistleblower accounts, DHS officials engaged in significant internal discussions during this period about compliance with the Supreme Court’s orders — including through text messages, The agency’s failure to preserve or produce these records raise serious concerns that critical communication have been shielded from oversight and accountability.

“DHS’s apparent failure to preserve text messages is no accident — it appears to be a deliberate cover-up. The agency admits it stopped saving critical records at the very moment it was under fire for defying court orders — records that could expose how officials broke the law, endangered lives, and tore families apart,” said Chioma Chukwu, Executive Director of American Oversight. “This goes far beyond obstruction. Officials misled the public and subsequently failed to preserve records that could expose how individuals were detained in inhumane conditions, deprived of due process, and secretly removed or disappeared from the United States — in direct violation of federal law. A government that deliberately refuses to preserve its own history cannot be trusted. By failing to maintain these records, DHS is shielding itself from accountability and denying the American people the truth about abuses carried out in their name.”

Our complaint alleges that DHS’s failure to preserve text message data related to government business violates the Federal Records Act (FRA); and that its refusal, or self-created inability, to search for text messages violates the Freedom of Information Act (FOIA). The complaint further alleges that Secretary Noem, NARA, and Acting Archivist Rubio have failed to take legally required steps to recover unlawfully destroyed records and ensure that records subject to the FRA are maintained and preserved. Our filing also seeks a court order compelling DHS to restore its recordkeeping systems, recover text message data at risk of loss or destruction, preserve all records covered by the organization’s FOIA requests, and conduct proper searches for responsive messages.

We discovered DHS’s policy of not maintaining and not searching for text messages in response to routine FOIA requests for communications, including text messages, about the deployment of the National Guard to Los Angeles, and about the Everglades Detention Center. After receiving DHS’s response that text message data is “no longer maintained” and cannot be searched, we sought to confirm whether the agency was capturing text messages in some other format, including in the particular format (“memos to file”) that DHS’s official recordkeeping policy recommends. But the agency informed us that it does not have any “memos to file” reflecting text messages between top officials and is “unable to search” for “records reflecting” those text messages, and has not provided any other information suggesting that text messages are stored in any format whatsoever. 

In an August 28 letter, we called on Noem to immediately preserve and recover all records reflecting missing text messages and notify NARA of the unlawful removal or destruction, as required by the FRA. In a separate letter to Rubio, we urged n NARA to prevent further records destruction and to initiate an enforcement action through the Attorney General to recover the records.

Secretary Noem’s use of text messages to conduct official business is reportedly prolific. A recent New York Magazine profile reported she “had a nickname among staff” during her time as South Dakota’s chief executive: “Governor Text Message,” because she performed much of her work as governor “via phone.”

With more than 260,000 employees and 80,000 law enforcement officers, DHS plays a central role in some of the federal government’s most controversial actions, including mass detention and deportation operations that have run roughshod over the rights of immigrants and American citizens alike.