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Feds hide behind potential text message loophole in sunshine law
Mr. Horner last year exposed Ms. Jackson’s use of an email alias, “Richard Windsor,” which she used for internal business. He questioned whether that account was being searched when reporters or the public asked to see electronic records.
Mr. Horner and several congressional committees looking into the EPA also discovered other agency officials using personal emails to conduct government business — a violation of the Freedom of Information Act.
The acting administrator earlier this month sent out an email telling all employees that they would have to go through retraining on open-records laws. The EPA’s internal auditor also is looking into how well the agency is complying with the law.
At her confirmation hearing, she fielded numerous questions about EPA policies. She said at one point that she couldn’t have used computer instant messages to circumvent open-records requests because she doesn’t know how to use the EPA’s IM program.
She was not asked about text messages.
Mr. Horner said he has been told she sent some particularly “salty” messages during times when she appeared before congressional committees. He filed a request last week for those records.
It is unclear whether those texts would fall under the law’s definition of “non-transitory” records.
It could even be questionable what constitutes a text. Trying to head that off, Mr. Horner wrote a long footnote in his FOIA request detailing the kinds of things he believes should be covered: “SMS or MMS messages, all electronic messages between two or more mobile phones or fixed or portable devices over a phone network that are not sent from an email client. In the event the handheld device assigned to Ms. McCarthy for telephone/data use is an Apple device, this request also contemplates iMessages.”
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