Suit Over EPA’s Deleted Text Messages to Proceed

A pro-business advocacy group can move forward with a suit against the U.S. Environmental Protection Agency that challenges top officials’ deletions of text messages, a federal judge has ruled.

The Competitive Enterprise Institute sued the EPA in Washington federal district court in October 2013, seeking to “enjoin and prevent the destruction of certain EPA text message transcripts.”

“There’s a categorical destruction of an entire class of records and no explanation,” Hans Bader, CEI’s senior counsel, told The National Law Journal on Tuesday.
U.S. District Judge Rosemary Collyer on Sept. 4 kept part of CEI’s suit alive. CEI was allowed to move forward on its request that the EPA, as Collyer wrote, “preserve any text messages related to the Agency’s functions, structure, or substantive decision-making.” A status hearing to review next steps was not immediately set.

The EPA's Gina McCarthy, who is now the agency administrator, sent or received thousands of work-related texts from a government-issued cellphone between 2009 and 2012, according to court records. McCarthy didn’t log those messages with the EPA’s record-keeping wing, CEI’s suit alleged.

“EPA responds that not all text messages necessarily constitute federal records, and therefore CEI has failed to state a claim for failure to notify the archivist,” Collyer wrote in her ruling. “But it is implausible that EPA administrators would not have suspected the destruction of any federal records with the removal of over 5,000 agency text messages.”
In August 2013, CEI released emails obtained through a Freedom of Information Act request showing that Lisa Jackson, then the agency administrator, asked a Siemens A.G. lobbyist to send email to Jackson on a personal account that used the pseudonym “Richard Windsor.” Jackson left the EPA for Apple Inc. in December 2012.