EPA Pulls An IRS And Admits To Losing Agency Text Messages

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Michael Bastasch DCNF Managing Editor
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It appears the Environmental Protection Agency has the same IT people as the Internal Revenue Service. Agency officials are now telling a federal court they lost text messages sent from top officials’ phones.

Justice Department lawyers said they will soon be telling a federal judge the EPA misplaced text messages sent to and from the phone belonging to agency chief Gina McCarthy and former chief Lisa Jackson.

“Defendant has decided to formally notify the National Archives and Records Administration (NARA) about the potential loss of federal records relating to text messages,” DOJ lawyers admitted.

The Competitive Enterprise Institute, a free-market think tank, has been pursuing EPA text messages since last year, after McCarthy was confirmed by the Senate to head up the EPA. CEI filed a case in 2013 to prevent the EPA from destroying agency text messages, a practice the think tank says it discovered through other government records requests.

“Here we see EPA agreeing to the court to ‘do an IRS,’” CEI senior fellow Chris Horner told The Washington Times. Horner’s past transparency work has revealed numerous attempts by EPA officials to avoid public scrutiny by using private email accounts and stonewalling government records requests.

The judge rules CEI could seek an injunction, which would force the EPA to notify the National Archives that it destroyed the text messages of top agency officials. The judge ruled that it’s “implausible that EPA Administrators would not have suspected the destruction of any federal records with the removal of over 5,000 Agency text messages.”

“The American people deserve transparency and accountability from the federal government, and today’s court ruling was a preliminary win in that much larger battle,” said Hans Bader, senior counsel at CEI. “This may signal a possible end to EPA officials destroying their text messages with impunity based on their self-serving claim that all text messages are personal rather than work-related.”

Obama administration lawyers say they plan on notifying the archives “within the next couple of days” and release documents detailing the records it lost.

The EPA’s lost email claim echoes claims made by the IRS. The tax agency claimed it lost emails sent between 2009 and 2011 from Lois Lerner’s email account. Lerner headed up an IRS department that was accused of targeting nonprofit conservative groups with audits. The IRS, however, didn’t inform the National Archives until this year that it had lost Lerner’s emails due to a hard drive crash.

Like the IRS, the EPA has not been very forthcoming with text messages sent by top officials. McCarthy told federal lawmakers earlier this year the agency was having trouble getting the text messages due to a hardware malfunction — just weeks after the IRS claimed losing Lerner’s emails from a hard drive crash.

The EPA, however, claims it had no obligation to preserve text messages from agency officials because they were personal in nature and not subject to federal records law. The agency says it’s still not aware of any unlawful destruction of text messages.

“Recent litigation filed against the Agency claimed that EPA failed to report the destruction of text messages,” an EPA spokeswoman told The Daily Caller News Foundation. “However, EPA reviewed information about the Agency’s policies, practices, and procedures with respect to retention of text messages that qualify as federal records.”

“EPA is not aware of any evidence that federal records have been unlawfully destroyed,” the spokeswoman added. “EPA reviewed information available to it, including information related to the Agency’s upgrade to Microsoft Office 365 that impacted Agency-issued mobile devices.”

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