Watchdog rebuffed on EPA data turns to NSA

A pro-business watchdog group sued the National Security Agency on Monday, demanding that the spy agency turn over metadata logs for some phones registered to top EPA officials in a pioneering legal maneuver that seeks to use the government’s own secret data to check up on other agencies.

The Competitive Enterprise Institute has been trying to pry cellphone and text message records from the Environmental Protection Agency for months but was rebuffed. The EPA said it didn’t store the data.

The institute then turned to the NSA, arguing that records of the communications likely were scooped up in the phone-snooping program revealed last year by former contractor Edward Snowden.

“We have found the silver lining of the NSA affair: While spying on all of us, our federal spooks inadvertently caught some of their lawbreaking political operatives at EPA,” said Christopher C. Horner, one of the lawyers involved in the lawsuit.

The NSA didn’t respond to a request for comment on the lawsuit, and it has rebuffed several efforts by the Competitive Enterprise Institute and others to try to see phone records that the agency likely collected and stored.

The institute also filed an open records request with the EPA on Monday seeking information about secondary email accounts that two top officials maintain to do business within the agency.

Mr. Horner said he has no objection to either Administrator Gina McCarthy or top deputy Bob Perciasepe having the secondary addresses, but he cited internal EPA documents showing the addresses have been scrubbed from the agency’s enterprise content management system. If the accounts aren’t on the EPA records system, Mr. Horner said, then official business could be shielded from public view.

“What today’s request will get us closer to is seeing the audience for and the subject matter of the very small [amount] of correspondence that our documents show exist on these atypical accounts, such as for whom and what topics were these nonpublic accounts reserved?” Mr. Horner said.

The Washington Times on Monday emailed EPA secondary accounts that the Competitive Enterprise Institute listed as belonging to Mr. Perciasepe and Ms. McCarthy. Although neither responded, the emails didn’t bounce back as undeliverable.

Asked about the accounts Monday, EPA spokeswoman Alisha Johnson said agency administrators have been assigned two government-issued email accounts for more than a decade: a primary account published on the agency website that receives more than 1 million messages a year, and a secondary account used to communicate with staff and other government officials.

She said neither account was hidden or removed from the agency’s content management system.

“Given the large volume of emails sent to the primary account, the secondary account is necessary for effective management and communication between the administrator and agency colleagues,” Ms. Johnson said.

She also said both accounts are searched in response to requests for email records.

Neither of the secondary accounts turned up in a search by The Times of the EPA’s public Freedom of Information Act database, which contains records on thousands of open records requests, including some seeking correspondence by Mr. Perciasepe or Ms. McCarthy.

Mr. Horner and the Competitive Enterprise Institute have filed repeated open records requests with the EPA, hoping to catch glimpses of interaction between agency executives and environmental groups.

The lawsuit against the NSA stems from a request from Mr. Horner and the institute last year seeking text messages, emails and phone calls made by Ms. McCarthy or former EPA chief Lisa P. Jackson.

The EPA said it has been unable to locate any records responsive to the requests. Mr. Horner said that means the agency destroyed them.

As electronic records, he said, they should have been stored in compliance with the law.

After the EPA’s refusal, Mr. Horner sent a Freedom of Information Act request seeking the metadata — the time, duration and parties involved in a communication — from the NSA. He said the metadata constitutes “agency records” under the law and should be made available.

The spy agency refused to confirm or deny that its snooping programs captured any records about the telephone number in question.

“Although these two programs have been publicly acknowledged, details about them remain classified and/or protected from release by statutes to prevent harm to the national security of the United States,” the agency said in its response.

“Our adversaries are likely to evaluate all public responses related to these programs. Were we to provide positive or negative responses to requests such as yours, our adversaries’ compilation of the information provided would reasonably be expected to cause exceptionally grave damage to the national security,” the NSA said.

Some average Americans have filed open records requests seeking any information the NSA has collected on them.

Earlier this year, the NSA declined a request for information related to the disappearance of Malaysia Airlines Flight 370.

Those requests are usually met with the same formulated response neither confirming nor denying the existence of such records.