You’ve likely read or heard about how a supposed technological glitch resulted in the loss of ex-IRS official Lois Lerner’s emails from the very period of time when she allegedly used state power to prosecute the President’s political enemies.
Lerner’s “honest” mistake evokes an even more blatant circumvention of transparency laws and ethical norms: Landmark Legal Foundation v. EPA, 272 F. Supp. 2d. 70 (2003).
The case originated in September 2000, in the immediate wake of a media report that the EPA, which was then headed by Carol Browner (formerly President Obama’s climate ‘czar,’ once a card-carrying member of the Socialist International, and now at the Center for American Progress), intended to promulgate a raft of regulations during then-President Bill Clinton’s lame-duck session.* In response to this article, the Landmark Legal Foundation filed a FOIA with EPA, requesting identification of all rules or regulations that EPA planned to promulgate during the lame duck session. Litigation ensued.
In the course of the suit, the federal district court for the District of Columbia issued an injunctive order prohibiting EPA from destroying any relevant records. That an injunction was necessary is telling. Nonetheless, in blatant contravention of the court’s order, “the hard drives of several EPA officials were reformatted, email backup tapes were erased an reused, and individuals deleted emails received after that date.”
According to the Court:
Here, EPA’s conduct of reformatting computers and erasing email backup tapes continued for over three months after the Court issued its order. This scheme shows both frequency and severity sufficient to justify the award of Landmark’s legal fees. This conclusion is bolstered by the unique nature of this case. EPA’s conduct was directly related to the subject matter of this FOIA litigation-Landmark sought information, and EPA destroyed it. Attorney’s fees covering the entire span of the contempt dispute are appropriate because EPA’s contempt was not merely incidental litigation conduct, but goes to the heart of the case. The Court concludes that the appropriate sanction for EPA’s contumacious violation of this Court’s January 19 order is to impose sanctions in the form of Landmark’s attorney’s fees and costs incurred as a result of EPA’s contumacious conduct.
Read all about it for yourself. I’ve posted the court’s July 24, 2003 decision at the bottom of this post.
*And this is exactly what EPA did. It was during Clinton’s lame-duck session that EPA promulgated an ultra-controversial decision to find that it was “necessary and appropriate” to regulate hazardous air pollution from power plants, due to mercury’s effect on public health. This illegitimate decision had crucial public policy ramifications—it led directly to EPA’s ridiculous Utility MACT, which was promulgated in February 2012.