The Environmental Protection Agency could be ordered to save its internal employee text messages under a federal judge’s ruling.
D.C. District Court Judge Rosemary Collyer ruled Thursday that the Competitive Enterprise Institute, which has been trying to obtain the internal documents for years, could pursue them.
In some cases, the EPA has said that the texts are not subject to Freedom of Information Act requests. In other cases, it has said they were destroyed as part of its normal record-keeping. In a lawsuit filed in October, CEI sought to “enjoin and prevent the destruction of certain EPA text message transcripts.”
“It is implausible that EPA administrators would not have suspected the destruction of any federal records with the removal of over 5,000 agency text messages,” Collyer wrote.
The ruling did not order the EPA to save the texts. It merely allows CEI to go after them. Hans Bader, senior counsel for the free-market think tank, called it a “preliminary win in a much larger battle” for transparency: “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.”
Collyer threw out part of the complaint, but said CEI could seek an injunction commanding the agency to notify the National Archives whenever it deletes work-related text messages of agency officials. She also ruled that CEI can seek a legal order compelling the EPA to preserve any text messages.
EPA spokesman George Hull emphasized that the judge had dismissed “all but one issue” raised by CEI: “The court did not find any violation of laws by EPA, but has directed the clerk to schedule a status meeting with the parties to discuss next steps in the case.”
Bader conceded that getting the legal order preserving the texts would still be up to a judge. He was nevertheless optimistic that the think tank had at least forced the EPA to announce when officials had destroyed texts.
“Unless [EPA] shows that literally each and every one of these thousands of texts were not work-related – something the judge has also said is implausible — we would seem to be entitled to obtain an injunction commanding that the Archivist be notified of a violation,” Bader said.
Members of Congress and outside groups have criticized EPA officials for trying to circumvent federal transparency and disclosure rules. Former EPA administrator Lisa Jackson was revealed in 2012 to have used an outside email account bearing the name “Richard Windsor” for official business in apparent violation of federal record-keeping rules.
The revelation was discovered through an FOIA request from CEI. After initially being withheld by EPA, the emails were turned over in late 2012. The EPA inspector general started an investigation but Jackson subsequently stepped down as administrator.
