CEI Sues NSA to Obtain “Destroyed” EPA Phone Records

Annie Dwyer; 202-331-2765

June 9, 2014

Competitive Enterprise Institute Sues NSA to Obtain “Destroyed” EPA Phone Records

WASHINGTON – Today, the Competitive Enterprise Institute (CEI) filed a lawsuit against the United States National Security Agency (NSA) for refusing to fulfill two Freedom of Information Act (FOIA) requests for records pertaining to the conduct of the Environmental Protection Agency (EPA). The Energy & Environment Legal Institute and the Free Market Environmental Law Clinic are also plaintiffs in the case.

“The NSA already acknowledged the existence of the data-collection program. The information NSA obtained about EPA communications, and specifically about records EPA admits to destroying, belong to the public,” said Competitive Enterprise Institute senior fellow Christopher Horner. “Over the past two years, the EPA’s controversial electronic correspondence and recordkeeping practices have reflected a severe lack of transparency and are of interest to both Congress and taxpayers in general. CEI's discovery that EPA engaged in widespread record destruction adds a new element to EPA's disturbing story.”

This lawsuit stems from repeated incidents of the EPA circumventing federal recordkeeping laws by using personal devices, including email accounts and text messages, to conduct work-related correspondence and otherwise federal business. When responding to previous FOIA requests, the EPA claimed, for example, that current EPA Administrator Gina McCarthy destroyed every single one of her thousands of text messages.

“Given what we have discovered so far, it is implausible that every one of the thousands of text messages current EPA Administrator Gina McCarthy sent from her government-issued phone were ‘personal’ in nature. We have obtained records proving many were to her EPA advisors and staff, not friends and family. Yet, even were this claim not so implausible, EPA is breaking the law by sanctioning employees' destruction or removal of thousands of records,” said Horner. “This is not a privacy issue. This is about getting to the bottom of EPA's excuse for apparently breaking the law, and allowing McCarthy to destroy all of her correspondence on an EPA-provided alternative to email, on an EPA-assigned phone.”

As the nation learned a year ago, the NSA’s data-collection programs would have captured and preserved these federal records, or at minimum, enough data to give the public a paper trail of current EPA Administrator Gina McCarthy’s activities now erased from EPA's system. As a result, CEI has requested the “metadata” (including time of the communication, duration, sender and recipient) from McCarthy’s communications made by phone, email and text message. The other two plaintiffs sought information from a Verizon account belonging to former EPA Administrator Lisa Jackson, which she used to correspond with certain lobbying interests, including the Sierra Club and Siemens.