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Judge Rules CEI Can Seek Injunction Against EPA Record Destruction

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Judge Rules CEI Can Seek Injunction Against EPA Record Destruction

WASHINGTON, Sept. 5 – A federal judge on Thursday allowed the Competitive Enterprise Institute to proceed with its lawsuit challenging EPA's destruction of documents.

“The American people deserve transparency and accountability from the federal government, and today’s court ruling was a preliminary win in that much larger battle,” said Hans Bader, CEI Senior Counsel. “This may signal a possible end to EPA officials destroying their text messages with impunity based on their self-serving claim that all text messages are personal rather than work-related.”
Specifically, the Judge ruled that CEI can seek an injunction commanding EPA to notify the National Archives of its destruction of work-related text messages of agency officials. Thus, she ruled, EPA cannot simply discard all text messages without consequences. She also ruled that CEI can seek a writ of mandamus to compel EPA to preserve any text messages related to the Agency’s functions, structure, or substantive decision-making.
The judge pointedly stated: “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.”

While the judge rejected EPA’s motion to dismiss the lawsuit, she also dismissed several other claims brought by CEI in the lawsuit.

CEI had filed the case in October, 2013 to stop EPA from destroying senior officials’ records, a practice CEI uncovered with requests under the Freedom of Information Act. Those FOIA requests sought text messages from the EPA-issued personal data devices of Gina McCarthy, then head of the EPA’s Air and Radiation Office and now the agency’s Administrator, and her predecessor Lisa Jackson. CEI, for example, had asked for McCarthy's texts on 18 specified days when she testified before Congress on energy policy matters and was seen sending texts. But EPA finally admitted all of these texts were destroyed, laying responsibility at McCarthy’s feet. McCarthy, ironically, was the EPA official charged with ensuring record management laws are followed.