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WASHINGTON, D.C., July 15, 2013 – The Competitive Enterprise Institute  filed suit  today in federal court to force the Environmental Protection Agency to turn over phone bills for the EPA-issued PDA issued to Gina McCarthy, a top EPA official and President Obama’s nominee to serve as the next administrator.
CEI’s suit also seeks records EPA has failed to turn over that would reflect whether McCarthy received and/or acknowledged the required training in EPA electronic record use and preservation policies. McCarthy is specifically tasked with ensuring her office complies with these laws and policies, yet apparently not one of her text messages has ever been produced in response to Freedom of Information or Congressional oversight requests for “all records” or “electronic records.” A similar, contemporaneous request produced “Scholar of Ethics” awards to the false identity assumed by the woman McCarthy seeks to replace, former administrator Lisa Jackson. EPA has failed to provide any evidence of McCarthy receiving the required training.
A Senate vote on McCarthy’s nomination could come as soon as this week despite several unanswered questions involving her electronic correspondence and recordkeeping practices, including why EPA is withholding thousands of her emails about the “war on coal” in a lawsuit and unlawfully refusing to produce even factual information such as the dates, parties and subject matter.
“Obama’s EPA is waving red flags all over the place,” said Christopher C. Horner, Senior Fellow at CEI and author of “The Liberal War on Transparency,” research for which turned up the ‘Richard Windsor’ fake name email scandal and other evidence of EPA avoiding disclosure requirements. “Ultimately, we will learn if EPA’s problems with non-official email accounts, and accounts not identifying the account holder, extend to their use of private accounts for texting or even destroying this alternative to email, as it seems. Resolving the questions in today’s suit, and about her use of a personal account, should be necessary conditions to moving forward on her nomination. This also would do much to address the growing impression Gina McCarthy has something to hide and that EPA is going to great lengths to help her hide it.”
CEI submitted the IT-training request under the Freedom of Information Act in April, as well as one for text messages from McCarthy’s EPA-issued phone on 18 specific dates. The latter request came after CEI was reliably informed McCarthy was warned to stop texting after concerns about the propriety of messages, specifically those sent on days she appeared before Congress.
EPA has claimed it has no such text messages. CEI then sought McCarthy’s relevant phone bills, which should establish whether she used the text feature as an alternative to email on her EPA-assigned device, including on those dates. In a separate request, presently on administrative appeal, CEI also seeks work-related text messages from McCarthy’s non-EPA-issued phone, which under EPA rules are public records subject to FOIA and which McCarthy is in fact responsible for turning over to EPA without being asked.
EPA has indicated satisfying CEI’s request for phone bills would take two hours or less. But to further expedite matters CEI narrowed the request to seek only those portions that reflect text activity. If those records were created, on any device, EPA must explain what happened between those records being created and their “no records” response. The interim step between creation and claiming “no records,” is that they have been destroyed – a violation of federal law.
EPA has apparently yet to include text messages in response to any request for records whether from Congress or through the FOIA process, although the law plainly says these messages are public records. CEI’s investigation of EPA’s transparency practices has revealed a pattern of resistance to disclosure of its activities. Already this has led to an Inspector General inquiry into EPA’s instant messaging practices, presumably including whether EPA preserves IMs as required.
”If these bills show that any text messages were in fact sent or received on the EPA device on any of the 18 dates in question, either EPA is destroying this correspondence in violation of the law, or simply is not turning it over in response to legitimate requests,” said Horner. “Our suit seeks to help draw EPA out into the open on these important issues and determine whether the reason these records are not being produced is mere nose-thumbing at the public and Congress, or possibly involves Title 18. [Title 18 of the United States Code, the criminal code of federal law, prohibits the destruction of federal records.]”
Horner noted a pattern of efforts on behalf of EPA to protect McCarthy until she can be approved by the Senate. Already, in response to a court order for EPA to turn over about 12,000 emails related to “climate” and “coal,” the dog not barking in those relatively few emails EPA did turn over was McCarthy, even though she is the lieutenant in charge of such matters. Thousands of those emails that were produced were heavily, sometimes comically redacted despite a directive from President Obama that FOIA requests should be treated with “a presumption of disclosure.” These records did nonetheless reveal McCarthy was among the circle with whom Jackson used the false identity “Richard Windsor,” rather than her own name, on email communications with top staffers and key outside allies. Jackson resigned after the court order to produce them, apparently to avoid answering questions about her decision to conduct certain official correspondence as such.
Other EPA executives, including Jim Martin, director of EPA’s Region 8 in Denver, have resigned after having been found during litigation initiated by CEI to have regularly used a private email account to conduct official business. CEI similarly awaits emails from the Region 9 administrator’s Comcast email account which he used for EPA-related correspondence. EPA’s general counsel also resigned the day Horner released copies of screen shots establishing that the Windsor account was installed on Jackson’s EPA computers.
“This particular case is one step on the path to determining the extent to which EPA is not meeting its obligations to keep the public informed,” Horner said. “EPA should have moved matters along by now, particularly with Ms. McCarthy subject to scrutiny for a promotion.”
Note: This is a corrected version of this release.
>> Read the filed complaint here .