WASHINGTON, D.C., July 31, 2013 — Documents obtained by the Competitive Enterprise Institute after it filed suit against the Environmental Protection Agency prove Gina McCarthy, EPA’s recently confirmed Administrator, was a frequent user of text messaging on her agency-funded phone while serving as Assistant Administrator for the Office of Air and Radiation. What makes this discovery something of a statistical miracle is EPA’s insistence that it has no text message records for McCarthy on the 18 dates when McCarthy testified before Congress.
Following up on a tip that McCarthy’s superiors cautioned her about her use of text messages, specifically what she was writing on the dates she appeared before congressional panels, CEI had requested McCarthy’s text messages for 18 dates on which she was known to have appeared before Congress. EPA replied it had no such records.
But documents that EPA delivered to CEI last Friday at 5:27 p.m.—a ritual time for agencies releasing damaging information—show McCarthy sent an average of 138 texts per month during the three-year period that included those 18 appearances before Congress.
It is possible McCarthy, who averaged more than four texts per calendar day over that period, sent none on any of the 18 dates in question—but it is somewhat unlikely. In fact, according to a statistical analysis performed by CEI, the probability that McCarthy did not text on the dates in question is 1 in 7.9 sextillion. If McCarthy did text message on those dates—as seems likely—and EPA does not currently possess those text message records, then EPA is not retaining records that it is required to retain by law. As such, 1 in 7.9 sextillion is the probability that EPA is not destroying her messages on this alternative to email provided to her for official business.
“If the text messages once existed and now don’t, then EPA did not preserve the records, which appears to be in violation of 18 U.S.C 2071 (Concealment, removal, or mutilation of federal records),” said Christopher C. Horner, senior fellow at CEI and author of the book, “The Liberal War on Transparency,” research for which revealed the efforts by bureaucrats and appointees at EPA and elsewhere to hide what they are up to.
CEI filed a FOIA request in April for McCarthy’s text messages on the dates she appeared at hearings. EPA said it had “no responsive records,” so CEI asked for phone bills for those dates. When EPA failed to produce those, CEI sued in July.
Finally, last Friday, the EPA delivered to CEI a tally of text messages sent or received each month by McCarthy. The document does not appear to be what CEI requested—portions of the actual phone bills—and so possibly was cobbled together by the EPA rather than produced directly from its records, as required under FOIA. Also, proper phone bills often itemize text messaging dates and times, as opposed to merely providing a monthly total.
The table below shows how McCarthy’s congressional testimonies fit within the timetable provided by the EPA tally:
According to this table, McCarthy was texting an average of 2.5-9 times per calendar day during months when she testified at hearings. So, CEI attorneys ask, why does EPA not have a single text message record from the 18 Congressional hearing dates, especially given that EPA’s own website lists “information contained on personal digital assistants” among the examples of “electronic records” that should be managed according to agency regulations?
“If EPA is destroying senior-official text messages, it needs to explain how this does not violate the federal criminal code,” Horner said. “In fact, the person to explain should be the official specifically charged with ensuring the relevant laws were complied with—who, by EPA policy, at the relevant times happened to be none other than Gina McCarthy.
“McCarthy claimed in her confirmation hearing that she doesn’t use instant messaging because, as she says, it is a little too new-fangled for a 58 year-old to master, even though IM has been around much longer than texting. But she plainly is an avid texter from her EPA-funded mobile phone. The document CEI received from EPA last Friday is as close an admission as one can expect under FOIA that EPA is not preserving—which is to say, is destroying—this alternative to email EPA provides certain officials.
“Members of Congress should consider asking Ms. McCarthy some direct questions about the EPA’s failure to produce her text message records, as it is required to do by law. Now that 'sext,' as in sextillion, is part of the story, possibly even the media could show interest. After all, she’s safely confirmed, so perhaps the taxpayer can start getting some answers.”