[Editor’s Note: Yesterday, the Daily Caller’s Michael Bastasch reported that Republican lawmakers are demanding the Environmental Protection Agency fork over documents relating to text messages to and from the agency’s chief administrator that were allegedly deleted rather than preserved for federal records, or simply because as “correspondence” they are regularly the subject of Freedom of Information and oversight requests and therefore must be preserved. Their request stems from the work of my colleague Chris Horner, who literally wrote the book on the opacity of the Obama administration (The Liberal War on Transparency). Below, Horner discusses the latest developments in this burgeoning transparency scandal.]
We have gotten to this point in a far too long and winding way, requiring numerous FOIA requests, first for text messages, then phone bills, then metadata, more text messages once we learned the ones we had requested were destroyed, and now for emails discussing all of this. Developments along this way include:
- 4/26/2013 CEI Files FOIA for Gina McCarthy Text Messages
- 5/29/2013 CEI Sues for EPA Nominee Text Messages on Dates She Testified before Congress
- 7/31/2013 Odds That EPA Is Not Destroying Gina McCarthy Text Messages: 1 in 7.9 Sextillion
- 10/3/2013 CEI Seeks Injunction against Ongoing EPA Record Destruction
- 12/17/2013 CEI FOIAs EPA for Correspondence Regarding Destruction of Administrator McCarthy’s Texts
- 6/9/2014 CEI Sues NSA for EPA Texting Metadata
- 9/5/2014 Judge Rules CEI Can Seek Injunction against EPA Record Destruction
- 10/9/2014 EPA “Pulls an IRS,” Loses Texts Sought by CEI
The most recent step pertains to emails sent between EPA’s Office of General Counsel and Ms. McCarthy which mention texting. This request was followed by, what is even in my experience, an unprecedented series of delays; a cynic might suspect that this was intended to avoid these emails, described below, from emerging until a federal court in DC rules on our efforts to depose Ms. McCarthy, among others, about EPA destroying its senior advisors’ text correspondence.
Here is why.
Ultimately, this request produced many heavily redacted emails, including a very small handful of apparent needles buried in that haystack. These include a few between IT people discussing, it seems, the prospect of retrieving McCarthy’s destroyed texts. Their discussions are, implausibly, withheld as “deliberative process”. Also, one email we seek looks particularly interesting. The limited information released from it does seem to have slipped through, given that EPA withheld, in full, every other one of its ilk. Of course, withholding an email in full means also refusing to release basic factual information like the parties to the emails; that’s improper, though it does manage to hide whether a discussion withheld as attorney-client privilege was likely in fact to lawyers, seeking legal advice.
The information that seeped out indicates that two threads in question that EPA refuses to release, at all — “Subject: TEXT RESPONSE” — are not in fact privileged communications, but instead appear to be Administrator McCarthy detailing, in two paragraphs her texting practices and, presumably, where those texts might be. Those she wrote included her chief policy aide in the “war on coal, a PR person, and the OGC lawyer handling our FOIA request. It is unlikely she was seeking legal advice from the PR aide, or her Clean Air advisor, who we also now know from metadata was one of her texting correspondents — in messages which she informs us, through counsel, were all destroyed, each and every one of them, because they were not work-related but “personal”.
I suspect this is the keystone document. I also suspect that, once again, next month EPA will force us into lengthy, time-and-resource consuming litigation to let the public see it.