Seems like the Environmental Protection Agency has decided to follow the recent footsteps of the IRS by telling the federal court Tuesday that the agency might have lost key electronic text messages from former EPA administrator Gina McCarthy's phone, which were due to be handed over in an open-records request by a conservative think tank.
Last year, the ex-EPA administrator and her predecessor officials were accused by the Competitive Enterprise Institute of switching from emails to texting in order to talk about the agency's controversial plans to crack down on coal power plants. Suing them in federal court, CEI asked the agency to release text messages to and from McCarthy under the Freedom of Information Act, the Washington Times reported.
On Tuesday, lawyers from the Department of Justice asked the federal court to inform the National Archives that they would not be able to produce the text messages since they had been deleted from the devices.
"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 told the court, who will most probably request the court to dismiss the case since the CEI's claim becomes moot as soon as the notice of non-existent records are filed, according to The Hill.
Meanwhile, the text messages were deemed personal and therefore did not have to be preserved as part of the agency's official record, a claim that is supported under open-records law, nor were they subject to disclosure, the agency argued.
"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," according to the Washington Times.
Despite the filing, a spokeswoman for the EPA told the Washington Times that the National Archives was only being notified because of an "abundance of caution."
"EPA is not aware of any evidence that federal records have been unlawfully destroyed," Liz Purchia said.
Earlier this year, McCarthy told lawmakers that due to a hardware malfunction, her staff was having trouble providing information the House requested for an investigation, according to The Washington Free Beacon.
Christopher Horner, a senior fellow for the institute, told Fox News in a statement that it is clear the EPA has not learned from the IRS' mistakes.
Ex-IRS official Lois Learner, who headed the IRS division, was accused of processing Tea Party and conservative groups' for tax exempt status in an unfair manner before the 2010 and 2012 elections, including the IRS who improperly delayed dozens of applications for years, according to an internal audit by the agency's inspector general.
Early in 2013, the agency stated to have discovered that Lerner's computer had crashed in mid-2011, wiping out most of her emails; The fact that they made no mention of this after promising to turn over the documents for two months had committee investigators crying foul, especially after it was revealed that, as a matter of Federal law, the agency was required to and had maintained a contract with an outside company, Sonasoft, for the sole purpose of backing up the email files.
"Here we see EPA agreeing to the court to 'do an IRS', which is to say: notify the National Archivist of the loss of every one of Gina McCarthy's thousands of text messages we have discovered she destroyed, just as the IRS finally agreed to notify (the National Archives) about the emails lost from (former IRS official) Lois Lerner's destroyed hard drive," he said. "The IRS's insincere efforts at following through on Federal Records Act obligations drew the court's ire - the same court now hearing the EPA case. Taxpayers should rightly expect EPA to have learned the proper lesson from the IRS's experience and hope for better."
According to a Washington Times sample survey, most federal agencies don't maintain a policy which requires their employees to preserve and store these kinds of electronic communication records.