The Environmental Protection Agency plans to notify the National Archives about the deletion of thousands of text messages sent or received on top agency official Gina McCarthy’s official mobile phone, Justice Department lawyers told a federal court this week.
An EPA spokesperson, Liz Purchia, tells National Review Online by e-mail that although the “EPA is not aware of any evidence that federal records have been destroyed,” the agency plans to forward information about the deleted text messages to the National Archives “out of an abundance of caution.”
The EPA says that text messages may not even qualify as public records. Nonetheless, Purchia says, EPA employees are instructed to save “any content on mobile devices that qualifies for federal preservation as a public record.” She continued: “The EPA is not aware of any individual non-compliance with this guideline, and finally, even if such destruction occurred, it was likely not unlawful because text messages qualify as transitory records . . . which may be deleted when no longer needed.”
But Chris Horner, a senior fellow at the Competitive Enterprise Institute and author of The Liberal War on Transparency, who is suing over the text-message correspondence, says he believes that McCarthy, who was appointed to run the EPA last year, tried to hide official correspondence and that “her story as to why [they were missing] proved untrue.” As the EPA received a growing number of Freedom of Information Act requests, McCarthy “began texting like a teenager,” Horner says. “She was clearly turning to it as an alternative to e-mail, which it is. But those records must be maintained and produced.”
When Horner filed a request for text messages sent on McCarthy’s agency phone, the EPA told him none existed. But through lawsuits and other records requests, Horner eventually learned that McCarthy had sent 5,932 text messages from her official EPA phone in a three-year period. The EPA then said those messages had been deleted because they were personal, not discussing public matters — but Horner says that further records he’s obtained show that McCarthy had actually been texting several of her senior staffers.
“We now know that she was not, in fact, destroying just correspondence with friends and family,” Horner says. “They were, as they appeared on their face, work-related. It’s implausible that this cyber bonfire — that when she dropped the match on these virtual records — that she didn’t think she was destroying federal records.”
Under federal law, McCarthy, as the EPA’s top official, is ultimately in charge of ensuring that agency records are preserved and protected. And “willfully and unlawfully conceal[ing], remov[ing], mutilat[ing], obliterat[ing], or destroy[ing]” public records is a federal crime, potentially punishable by up to three years in prison.
McCarthy isn’t the only federal official who has come under fire this past year for her records practices. In August, MSNBC broke the story that Marilyn Tavenner, the chief of Centers for Medicare and Medicaid Services, had likely deleted e-mail correspondence that should have been public record. E-mail correspondence later released by the House Energy and Commerce Committee showed Tavenner instructing a CMS spokesperson to delete e-mail correspondence with White House and Department of Health and Human Services staffers.
And the Internal Revenue Service has said that e-mails belonging to Lois Lerner and six more employees involved in the targeting of conservative and tea-party groups were lost in a computer crash. Gina McCarthy’s deletion of text messages only adds to an already sizable mountain of evidence that the administration is busily building a legacy of evasiveness and contempt for the law.
— Jillian Kay Melchior is a Thomas L. Rhodes Fellow for the Franklin Center for Government and Public Integrity. She is also a Senior Fellow at the Independent Women’s Forum.