- The Washington Times - Wednesday, October 8, 2014

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.

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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.

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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.

Mr. Horner said the EPA first said it couldn’t locate any text messages. The agency then acknowledged Ms. McCarthy destroyed her texts because they were personal — but the metadata from her phone showed a number of her messages were sent to EPA employees.

In September, a federal judge ruled against a number of Mr. Horner’s claims. But Judge Rosemary M. Collyer also castigated the EPA for the mass destruction.

“EPA responds that not all text messages necessarily constitute federal records, and therefore CEI has failed to state a claim for failure to notify the archivist. But 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,” the judge wrote.

She allowed the CEI lawsuit to proceed on a more narrow legal ground.

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

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