- The Washington Times - Monday, April 1, 2013

Top Environmental Protection Agency officials used computer instant messages to try to circumvent open-records laws, according to a lawsuit filed by a researcher who has been hounding the agency to comply with the law.

Christopher C. Horner, the researcher who earlier uncovered that EPA officials were using private email addresses to conduct official business, said that in going over some of those earlier records he discovered that the agency was using instant messages, too.

He is now suing to get a look at those records, which he said the EPA has been stonewalling.

“It seems we have uncovered yet another major transparency scandal in that either EPA is destroying instant messages against the law, or it is withholding them in defiance of its legal obligations to produce,” Mr. Horner said.

The lawsuit says EPA “has never produced an instant message in response either to a request under FOIA, or in response to a congressional oversight request, despite numerous requests from both for ‘records’ or ‘electronic records.’”

The complaint was filed late Thursday and was served Monday on the EPA by Mr. Horner, the Competitive Enterprise Institute and the American Tradition Institute’s Environmental Law Center.

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The EPA’s press office didn’t reply to a request for comment. The lawyer who was dealing with the Freedom of Information Act request asked for a copy of the complaint but didn’t have an immediate comment for The Washington Times on Mr. Horner’s accusations.

Mr. Horner is trying to get instant message records of former Administrator Lisa P. Jackson, former senior climate adviser Lisa Heinzerling and current Assistant Administrator Gina McCarthy.

President Obama has nominated Ms. McCarthy to be the next administrator, but congressional Republicans have said questions over the email records could hurt her chances for confirmation.

Several House committees launched investigations into how the EPA is complying with open-records laws after Mr. Horner revealed that Ms. Jackson used a private email address under the alias “Richard Windsor” for much of her official correspondence. Mr. Horner also reveals that another high-level employee used his private email to conduct agency business — a violation of the law.

Monday’s complaint is over fees. Under FOIA, agencies can assess fees for searching and producing records, but those filing the requests can ask for a waiver if it’s in the public interest. Mr. Horner said the EPA has waived fees for less-important requests in the past.

He said the denials now appear to be retaliation.

Mr. Horner also said the EPA has missed the deadline to respond to his fee waiver appeal, so he had to go to court.

Critics say the EPA is kowtowing to environmentalists and that many of the records obtained under FOIA requests show a cozy relationship between the agency and such groups.

In one instance, James Martin, who at the time was administrator of EPA’s Region 8, used his personal email account to collaborate with the Environmental Defense Fund about where hearings on agency greenhouse gas rules could be held for maximum effect.

Mr. Martin said holding the hearing in Denver “will make Roy Palmer nervous” — apparently a reference to Xcel Energy Inc.’s senior vice president for public policy. Mr. Martin previously denied using his private email except in one instance for a scheduling matter.

FOIA laws require all official business to be conducted through agency emails, and any business conducted on private addresses is required to be forwarded or printed out so that it is available for open-records searches.

Mr. Martin, who has resigned from the agency, did not return several requests from The Times seeking comment last month.

Now, members of Congress are demanding to know whether other top EPA officials also used private emails to conduct official business.

Ms. Jackson, who resigned this year as the EPA’s top official, also came under fire for using a secondary email account — though her “Richard Windsor” alias was an official agency address.

The EPA said that since her main email was listed on the agency website and received voluminous mail from the public, she needed another one to handle important internal messages.

The EPA says emails from the alternate address were searched whenever someone made an open-records request.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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