What have top officials within the Environmental Protection Agency been telling various environmental groups in their phone, email and text messages?

That’s a question Chris Horner, an attorney and senior fellow with the Competitive Enterprise Institute, can’t answer yet because the EPA claims it does not store this kind of data—in violation of the law.

But it’s possible the National Security Agency does know.

That’s why Horner filed a lawsuit earlier this month against the NSA on behalf of the Competitive Enterprise Institute, Energy and Environment Legal Institute and Free Market Environmental Law Clinic, in response to the agency’s refusal to comply with two Freedom of Information Act requests concerning EPA correspondence.

The plaintiffs are seeking “metadata” from EPA Administrator Gina McCarthy’s phone communications, email and text messages, according to the suit.

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In advance of her Senate confirmation, McCarthy told lawmakers she was uncomfortable with instant messaging and thus did not use EPA’s “IM” system. But text messaging, Horner said, is something her phone bills showed she did with great regularity—and increasingly over time.

McCarthy later claimed that thousands of text messages on her EPA-issued phone were 100 percent personal in nature and thus took the liberty of deleting them.

Horner said he’s established that McCarthy was, in fact, a prolific texter. He said he has been informed she was cautioned by the agency at one point about messages she had sent during and about her experience in congressional hearings.

McCarthy’s predecessor, Lisa Jackson, faced questions about transparency as EPA administrator.

The EPA has worked repeatedly to make an end-run around federal record-keeping laws, the Competitive Enterprise Institute claims in a press release, “by using personal devices, including email accounts and text messages, to conduct work-related correspondence and otherwise do federal business.”

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Horner, who is the author of “The Liberal War on Transparency,” played an instrumental role in exposing the “Richard Windsor” email scandal at the EPA. “Richard Windsor” is the fake name Jackson used to circumvent federal records-keeping laws. Jackson resigned just days after a federal judge ruled the EPA had to turn over 12,000 “Richard Windsor” emails for public review. (A detailed timeline of the email scandal is available here.)

Unable to penetrate the EPA, Horner set his sights on the NSA data-collection program Edward Snowden brought to light a year ago.

“We have found a silver lining of the NSA affair, being that the spies inadvertently caught some lawbreaking senior appointees at EPA,” Horner told The Daily Signal. “We would like the information NSA obtained regarding EPA records that EPA has destroyed. Possibly confused by having tripped up fellow bureaucrats, NSA has refused to release to us information on many thousands of Gina McCarthy’s unlawfully destroyed text messages.”

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Horner offered some additional observations from his now years-long struggle to force the EPA to adhere to federal record-keeping laws.

  • He said when NSA made the decision to obtain telephony data, this data became subject to FOIA, unless it falls under one of nine exemptions. Government officials’ emails, text messages and phone records are, by law, public records that must be preserved to Federal Records Act standards.
  • The Competitive Enterprise Institute then found out from the Justice Department—after EPA had said it had no records responsive to Horner’s request—that McCarthy had deleted all her texts, even though they were sent on an EPA-provided device, and she is known to have used texting for some select agency correspondence in lieu of email. Horner’s suit seeks from NSA whatever information it has on McCarthy’s texts. Before she became administrator, McCarthy was the EPA official in charge of ensuring compliance with open-records laws.
  • “Fortunately, NSA grabbed the data and data about the records that EPA refused to keep, which we would like in order to examine EPA’s claim that its cyber-bonfire was perfectly acceptable because all of the many thousands of Gina McCarthy’s EPA-phone text messages were actually personal,” Horner said. “Whether that means with her close friends at the Sierra Club or others, we don’t know. What we already have been able to prove is that these included regular correspondence with her EPA team in the war on coal, which she then destroyed.”
  • When the Competitive Enterprise Institute asked EPA for copies of McCarthy’s texts, the agency stonewalled. Horner said he learned from previously requested material from NSA that it was obtaining Verizon data on McCarthy and the private account of previous administrator Jackson, which Jackson used to correspond with lobbyists such as the Sierra Club’s Michael Brune and Siemens’ Allison Taylor.

In addition to the NSA suit, the Competitive Enterprise Institute also filed a new open-records request with EPA on June 9 asking for information on secondary email accounts two top agency officials use to conduct internal business.