‘Doing an IRS’? EPA can’t find top official’s text messages

‘Doing an IRS’? EPA can’t find top official’s text messages

Gina McCarthy (Associated Press)

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By Stephen Dinan - The Washington Times - Wednesday, October 8, 2014

http://www.washingtontimes.com/news/2014/oct/8/epa-to-admit-it-lost-agency-chiefs-text-messages/

The EPA is poised to “do an IRS” — similar to what the tax agency had to do with dismissed top official Lois G. Lerner — and officially notify the National Archives that it may have lost key electronic records, according to a think tank that’s suing to get text messages under an open-records request.

Justice Department lawyers told a federal court on Tuesday that the alert will be coming soon, in a case that’s shaping up as a significant battle over whether government agencies are required to keep cellphone text messages as “official” records.

In this case, researcher Chris Horner and the Competitive Enterprise Institute are trying to get a peek at Environmental Protection Agency Administrator Gina McCarthy’s text messages, believing that she switched from emails to texting in order to talk about the agency’s controversial plans to crack down on coal power plants.

“Here we see EPA agreeing to the court to ‘do an IRS,’” Mr. Horner said.

An EPA spokeswoman said agency officials have acknowledged to the court and to the National Archives that the agency doesn’t have the text messages, but they contend the messages never had to be stored in the first place, since they were personal in nature and aren’t required to be preserved under open-records laws, nor turned over under the Freedom of Information Act.

                                                

“EPA is not aware of any evidence that federal records have been unlawfully destroyed,” said Liz Purchia, the EPA spokeswoman.

She said the notification to the archives was being done “out of an abundance of caution.”

Both written and electronic federal agency records are required to be preserved, similar to emails, but not every communication is deemed to be a record. As more communications are done online, states and federal agencies are increasingly grappling with those questions.

A Washington Times sample survey of federal agencies earlier this year found that most don’t have a policy governing whether employees should be preserving and storing those kinds of electronic communications.

Transparency advocates fear that some government officials may be using text messages or computer instant-chat networks to try to get around the law.

In the letter the EPA will send to the Archives, the agency will argue that text messages “are inherently unlikely to qualify for preservation” because they are usually limited, and can’t contain the kinds of decision-making that qualifies as a “record.”

Unlike other agencies surveyed by The Times, the EPA says it has had a policy since 2005 instructing employees to save any text messages that would qualify for preservation, and it has no evidence that employees are failing to do that.

The EPA also says that even if text messages were being destroyed in violation with its guidance, that’s not against the law because they believe text messages are “transitory records … which may be deleted when no longer needed,” Ms. Purchia said.

Justice Department lawyers informed the court of their intent to notify the Archives through a “factual update” in the court record.

“Specifically, 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 said in a joint status filing made in conjunction with the CEI’s lawyer.

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U.S. Environmental Protection Agency

Orin S. Kramer was an administrator for the U.S. Environmental Protection Agency (EPA), is a friend of Albert A. Gore Jr., and a director at the Climate Reality Project.

Note: Albert A. Gore Jr. is a friend of Orin S. Kramer, and a director at the Climate Reality Project.                                                     

Lee M. Thomas was an administrator for the U.S. Environmental Protection Agency (EPA), and a director at the Climate Reality Project.

Carol M. Browner was an administrator for the U.S. Environmental Protection Agency (EPA), a director at the Climate Reality Project, an energy czar for the Barack Obama administration, and is a senior fellow, director at the Center for American Progress.

Foundation to Promote Open Society was a funder for the Climate Reality Project, the Center for American Progress, and the Aspen Institute (think tank).

George Soros was the chairman for the Foundation to Promote Open Society, a supporter for the Center for American Progress, and is the founder & chairman for the Open Society Foundations.

Open Society Foundations was a funder for the Center for American Progress, and the Atlantic Council of the United States (think tank).

William A. Nitze is a trustee at the Aspen Institute (think tank), was the assistant administrator for the U.S. Environmental Protection Agency (EPA), and a director at the Atlantic Council of the United States (think tank).

Henry A. Kissinger was a lifetime trustee at the Aspen Institute (think tank), is a director at the Atlantic Council of the United States (think tank), a member of the Bohemian Club, a director at the American Friends of Bilderberg (think tank), and a 2008 Bilderberg conference participant (think tank).

Belizean_Grove is the equivalent to the male-only social group, the Bohemian Club.

Henrietta Holsman Fore is a trustee at the Aspen Institute (think tank), and a member of the Belizean Grove.

Deborah L. Wince-Smith a member of the Belizean Grove, and was a member of the IRS Oversight Board.

IRS Oversight Board is a citizen’s board for the Internal Revenue Service (IRS).

Charles O. Rossotti was a commissioner for the Internal Revenue Service (IRS), and is a director at the Atlantic Council of the United States (think tank).