Wow, this just keeps happening. We all thought computers had advanced to the point that data loss was relatively uncommon and hard equipment failures virtually unknown, but we were wrong. Lois Lerner of the IRS Tax Exempt Organizations division was a one-woman EMP bomb, leaving a trail of destroyed computers and mysteriously erased subpoenaed documents in her wake. And now, for the second time, the same damn thing happened at the Environmental Protection Agency. From The Hill:
The Environmental Protection Agency (EPA) told a federal court that it may have lost the text messages at the center of a lawsuit by a libertarian think tank.
The Competitive Enterprise Institute (CEI) sued the EPA last year in federal court to compel the release of text messages to and from Administrator Gina McCarthy and her predecessor under the Freedom of Information Act.
In the Tuesday filing to the United States District Court for the District of Columbia, Justice Department lawyers representing the EPA said the agency will soon file a notice that it may have misplaced records that it was legally required to retain.
“Defendant has decided to formally notify the National Archives and Records Administration (NARA) about the potential loss of federal records relating to text messages,” the lawyers told the court.
Once it files that notice the CEI’s claim will become moot, since the records do not exist, the agency said. Lawyers will ask the court for a hearing to dismiss the case.
Despite the filing, EPA spokeswoman Liz Purchia said the agency maintains that the text messages neither had to be preserved nor were subject to disclosure. Text messages can legally be deleted, she said.
“EPA is not aware of any evidence that federal records have been unlawfully destroyed,” Purchia said.
The agency is filing its notice with NARA “out of an abundance of caution,” she said.
“Abundance of caution?” Weren’t those the exact same words President Obama used, when assuring us Ebola could never possibly reach the United States?
What makes this extra-fishy is that the EPA previously asserted those text messages weren’t covered by disclosure laws. Now they claim the Homework-Eating Dog got them. The case will be dismissed… and the point plaintiffs at the Competitive Enterprise Institute were trying to make will be proven beyond doubt. Text messages are a great way for Obama Administration officials to evade transparency laws!
The CEI gave more details of what’s going on here to National Review. Missing from The Hill’s account is that a great deal of McCarthy’s allegedly personal text messages were sent to her senior staffers at the EPA:
Chris Horner, a senior fellow at the Competitive Enterprise Institute and author of The Liberal War on Transparency, who is suing over the text-message correspondence, says he believes that McCarthy, who was appointed to run the EPA last year, tried to hide official correspondence and that “her story as to why [they were missing] proved untrue.” As the EPA received a growing number of Freedom of Information Act requests, McCarthy “began texting like a teenager,” Horner says. “She was clearly turning to it as an alternative to e-mail, which it is. But those records must be maintained and produced.”
When Horner filed a request for text messages sent on McCarthy’s agency phone, the EPA told him none existed. But through lawsuits and other records requests, Horner eventually learned that McCarthy had sent 5,932 text messages from her official EPA phone in a three-year period. The EPA then said those messages had been deleted because they were personal, not discussing public matters — but Horner says that further records he’s obtained show that McCarthy had actually been texting several of her senior staffers.
“We now know that she was not, in fact, destroying just correspondence with friends and family,” Horner says. “They were, as they appeared on their face, work-related. It’s implausible that this cyber bonfire — that when she dropped the match on these virtual records — that she didn’t think she was destroying federal records.”
Under federal law, McCarthy, as the EPA’s top official, is ultimately in charge of ensuring that agency records are preserved and protected. And “willfully and unlawfully conceal[ing], remov[ing], mutilat[ing], obliterat[ing], or destroy[ing]” public records is a federal crime, potentially punishable by up to three years in prison.
It looks like Team Obama has decided to Alinsky those old transparency standards into oblivion, overwhelming the system with flagrant violations until the law drops dead from exhaustion. What are you peons going to do about it – throw the whole Administration into jail? Has there been a major controversy in which records covered by anything from FOIA requests to congressional subpoenas were quickly and comprehensively produced by the Obama Administration?
The reason this whole imbroglio about McCarthy’s correspondence came up is that the Competitive Enterprise Institute was looking into the possibility of improper collusion between the EPA and its lobbyists – a term that doesn’t quite capture the closeness between this most captive of regulatory agencies and its captors, who move freely between lobbying the EPA and working for it – particularly in the War on Coal. The CEI was part of a report on that cozy relationship that I wrote about in September.