Gina McCarthy’s ‘Cyber Bonfire’ Worse Than Lois Lerner’s, CEI Attorney Says

By Barbara Hollingsworth | September 5, 2014 | 4:51pm EDT

Environmental Protection Agency Administrator Gina McCarthy speaking at a gathering of climate change advocates on Jan. 30, 2014 in Arlington, Va. (CNSNews.com/Penny Starr)

(CNSNews.com) – Environmental Protection Agency (EPA) Administrator Gina McCarthy’s destruction of thousands of text messages sent and received on her government-issued smart phone is “worse than Lois Lerner’s” destruction of her Internal Revenue Service (IRS) emails, says attorney Christopher Horner, a senior fellow at the Competitive Enterprise Institute (CEI).

On Thursday, U.S. District Court Judge Rosemary Collyer ruled that CEI can proceed with its 2013 lawsuit seeking to halt the further destruction of top agency officials' text messages. (See CEI v EPA 13-1532.pdf)

“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,” Judge Collyer wrote.

As a result of the ruling, which Horner called “a nice step in the right direction,” CEI will seek court injunctions to stop EPA’s “cyber bonfire” and compel the agency “to do what the law says, and do what IRS is doing regarding Lerner, because there is no difference here.”

“The process that the IRS is now undertaking in response to what they know are the destroyed Lois Lerner correspondence is the process we’re talking about,” Horner told CNSNews.com.

“EPA’s response was that was an ‘intrusive’ attempt by us to make them comply with federal record-keeping and disclosure laws that no one can make them comply with…

“This is worse than Lois Lerner, for a simple reason. Lois Lerner wrote to someone else and said, ‘Hey, are our instant messages being backed up?’ And they said ‘no,’ and she wrote back: ‘Perfect.’

“Gina McCarthy didn’t have to write anybody to ask. She was the party who [EPA] regulations said knew, or had to know, and she was the one destroying everything, texting at a rate of nearly 300 times a month, including to her senior policy aides, [the ones] most instrumental in the war on coal. Destroying all of them.

“And she’s the one that under the system was tasked with making sure the law was enforced.”

The CEI lawsuit accuses McCarthy and former Administrator Lisa Jackson of using the text messages as an alternative to email to conduct official EPA business in order to circumvent federal disclosure laws.

Horner says he requested McCarthy’s text messages in a Freedom of Information Act (FOIA) request after being informed that she had been warned about texting on the 18 days she testified before Congress. “That’s a different lawsuit, but it did bring us here,” he said.

“In that case, I said we’d like her text messages on those 18 days. That should be simple. They said, ‘no records.’ We got her phone bills. They showed us how often she was texting. A lot. I suppose that after the FOIA request came in, she increasingly turned to text messaging. And we now know she knew they weren’t being backed up, and she was destroying them.

“And so we ran the odds, and it was 1 in 7.9 sextillion that she didn’t text at all on those 18 days.”

The Federal Records Act (FRA) requires the retention of all “documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business…”

IRS official Lois Lerner at a House Oversight and Government Reform Committee hearing on Capitol Hill on May 22, 2013. (AP Photo/Carolyn Kaster)

Although Collyer ruled that CEI could not use FRA to stop future destruction of EPA text messages, citing a U.S. Supreme Court ruling that “private litigants cannot state a claim for legal relief under FRA,” she did say that CEI could proceed with the case under two other federal statutes

Horner says he is pleased with the ruling. “The key point is that the court said 'CEI can proceed and I will be the judge of whether anybody can make you comply with the law.' That was the victory,” he told CNSNews.com.

“We know Gina McCarthy was texting like a teenager almost 300 times a month instead of emailing,” he continued. “But when we asked for the texts, EPA said ‘no records.’ And ultimately, after we sued in one case, McCarthy acknowledged through counsel that she had destroyed probably 10,000 text messages because they were all personal.

“So we obtained the metadata for at least seven months, which was all EPA still had, and it turns out some of these ‘personal’ messages were to her two senior Clean Air Act, war on coal activist aides and nine other aides.”

The agency responded that it did not have to save the text messages because they were not “records” under FRA. But Collyer ruled that “CEI has adequately alleged an underlying violation of the Administrative Procedure Act (APA)” based on “EPA’s unpublished and unverified record-keeping policies.”

“What we have here is the agency official responsible, by regulation, for making sure these laws are enforced destroying every single one of her text messages with a wholesale cyber bonfire on agency equipment.”

“If this is permissible,” Horner added, “your system has a problem.”

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