CEI Sues for EPA Nominee Text Messages on Dates She Testified Before Congress

WASHINGTON, D.C., May 29, 2013 — Today, the Competitive Enterprise Institute filed suit in federal court to compel the Environmental Protection Agency to turn over text message records of Gina McCarthy, Assistant Administrator for Air and President Obama’s choice to head the Agency. (View the complaint)

The suit, filed as the full Senate prepares to take up McCarthy’s nomination in July, seeks text message records for 18 specific dates on which McCarthy testified before Congress.

EPA provides certain employees with PDAs and text messaging capability as an option to email. But it seems EPA has yet to ever turn over text message transcripts, according to CEI discussions with frequent FOIA requesters and congressional investigators. CEI submitted its request specifically for some of McCarthy’s texts in April after being credibly informed EPA warned her to stop texting and that the messages she was sending about Members of Congress during hearings posed great risk to her and the agency. EPA has failed to turn over these messages, but it has acknowledged it could do so with less than two hours of work.

EPA must produce these records under the Freedom of Information Act and, in the process, admit one of two scenarios: Either EPA has maintained text messages as required by law but has chosen repeatedly to withhold them in the face of FOIA and congressional oversight requests for “all records” or “all electronic records,” or EPA has destroyed the texts, with possible criminal penalties under 18 U.S.C. § 2071 (Concealment, removal, or mutilation of federal records).[1]

CEI is a public policy research and educational institute dedicated to advancing responsible regulation and in particular economically sustainable environmental policy, with a transparency initiative seeking public records relating to environmental policy and how policymakers use public resources. This effort has drawn substantial public, congressional and media interest in recent months with the revelation of a false-identity account created for former Administrator Lisa Jackson in the name of “Richard Windsor” and widespread unlawful use of private email accounts for agency-related correspondence.

CEI’s suit notes EPA specifically charged McCarthy with ensuring the Air Office’s compliance with preserving and producing agency records according to applicable recordkeeping law and policy.[2]

[1] Work-related texts sent to or from Ms. McCarthy’s private PDA are also Agency records which EPA must obtain, under federal law and policy (see, e.g.,”Frequent Questions about Mobile and Portable Devices, and Records“, http://www.epa.gov/records/faqs/pda.htm). CEI will request those next in certain events, including if EPA is not forthcoming in the matter filed today.

[2] See, e.g., http://www.epa.gov/records/policy/2155/rm_policy_cio_2155_1_2.pdf, p. 5.