CEI Suit Seeks Injunction Against Ongoing EPA Record Destruction

WASHINGTON, Oct. 3 – Attorneys with the Competitive Enterprise Institute filed suit Thursday to stop the Environmental Protection Agency from destroying senior officials’ records, a practice CEI uncovered with recent requests under the Freedom of Information Act.

CEI filed suit in the U.S. District Court for the District of Columbia asking the court to “enjoin and prevent the destruction of certain EPA text message transcripts, by EPA pursuant to a policy and practice that violates the Freedom of Information Act and the Federal Records Act.”

Beginning in April, CEI filed a series of Freedom of Information Act requests seeking text messages from the EPA-issued personal data assistants 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 first asked for her texts on 18 specified days when she was known to have testified before Congress and been seen sending texts.

After EPA acknowledged no such records existed, CEI obtained information relating to McCarthy’s PDA bill that showed she sent 5,392 text messages over a three-year period. EPA soon admitted all of these were destroyed, laying responsibility at McCarthy’s feet. By EPA policy, McCarthy was the official charged with ensuring record management laws are followed.

On Aug. 19, CEI submitted another request for text messages sent or received by then-Administrator Lisa Jackson on May 27, after obtaining a “Richard Windsor” email referencing texts sent on that particular date (Windsor was the false identity email account created for certain of Jackson’s correspondence, also revealed by a CEI FOIA request).

EPA has asserted it cannot produce any of the messages related to either request, admitting the records were destroyed in violation of both FOIA and the Federal Records Act.

Texts, like emails, are considered to be part of the agency record if they are sent on agency-issued devices and concern agency business. EPA provides PDAs and texting functions to certain senior officials expressly for the exclusive use for official business. Agencies do have some discretion to determine whether a given email is agency business, but it does not have the authority to declare by fiat an entire class of records – all of McCarthy’s texts, or all text messages, for instance – will be destroyed and never provided to the public, regulated parties or litigants.

“EPA has failed to preserve these documents despite previously being warned by the courts to stop deleting and destroying electronically stored information and other documents,” the filing states. “Since the text messages at issue were sent by the EPA’s current administrator and her predecessor, these records and whether EPA fulfilled its obligation to maintain and to produce them are of significant public interest … especially given that these officials … were specifically charged with responsibility for ensuring that recordkeeping laws were complied with, and therefore presumably were aware of this system under which their own correspondence was being destroyed.”