- The Washington Times - Monday, April 29, 2013

The researcher who exposed former EPA chief Lisa P. Jackson’s private email account is now taking aim at her potential successor — and is expanding the inquiry into the world of mobile phone text messages, which are shaping up as the next frontier in open-records legal battles.

Christopher Horner, the researcher, has requested some phone text message records from Gina McCarthy, An Environmental Protection Agency assistant administrator whom President Obama has tapped for the top job. Mr. Horner wants to see the texts Ms. McCarthy was sending during the days she appeared before Congress over the past four years.

Even more broadly, he is testing the limits of federal open-records laws by going after texts, which some analysts said could be a new loophole in the federal Freedom of Information Act (FOIA).

“No text messages have apparently ever been turned over by EPA in response to FOIA and congressional oversight requests for ‘records’ or ‘electronic records.’ Yet they are undeniably agency records under various relevant statutes,” Mr. Horner told The Washington Times. “Has EPA been destroying these records or preserving them as required, but merely hiding them from the public and from Congress?”

The EPA didn’t return messages Friday or Monday asking about its policy on storing or searching text messages, nor did the agency answer questions about Ms. McCarthy in particular, but documents on the agency’s website seem to suggest that employees are supposed to preserve their text messages.

The Obama administration overall doesn’t appear to have done much work on text messages and open records.

The White House budget office didn’t return messages seeking comment Friday or Monday. The Washington Times also reached out to a handful of departments Monday to ask about their text message open-records policies, but didn’t get an answer from any of them.

Even congressional champions of open-records laws don’t appear to have focused on the intersection between texts and FOIA.

The National Archives and Records Administration, which is responsible for preserving federal records, said it hasn’t issued any guidance and said the only texts that would fall under open-records preservation rules are those that constitute a “record” under the Federal Records Act.

For messages that are deemed “non-transitory federal records,” which means they must be preserved beyond 180 days, “agencies should take reasonable steps to preserve the text, including either forwarding to an email system, or memorializing in some other fashion (just like voice mails),” Chris Isleib, a spokesman for the National Archives, said in an email.

When it gets FOIA requests, the National Archives takes reasonable steps to find any records that would be responsive, including those on electronic media, Mr. Isleib said.

Ken Bunting, executive director of the National Freedom of Information Coalition, said states also are grappling with questions of how text messages fit with their own sunshine laws.

“My feeling is, any communication that would be a public record if done on paper ought to be a public record if done electronically and whatever preservation policies that existed for paper records ought to be at least as thorough for electronic preservation,” he said. “Unfortunately, what we already know is that people use technology to hide stuff.”

Mr. Bunting’s group is holding its annual conference in May, and he said one of the major focuses will be on what he called “digital sleight-of-hand” that officials are using to avoid scrutiny.

The EPA, in particular, has been the subject of complaints about its record-keeping.

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.

The questions are emerging as Ms. McCarthy awaits a Senate vote on her nomination to become the agency’s director.

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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