Judge Splits Difference|on EPA Cell Phone Records

(CN) - Libertarians' pursuit of federal officials' text messages may proceed, a federal judge ruled, denying in part the Environmental Protection Agency's motion to dismiss a think tank's claims.

The Competitive Enterprise Institute (CEI), in response to the rejection of Freedom of Information Act requests for EPA-related texts, claimed the EPA "destroyed" more than 5,000 messages on agency-issued cell phones that contained "substantive agency communications."

The EPA, in response, claimed that text messages were not "records" it was required to retain under the Federal Records Act.

CEI, a Washington, D.C.,-based "educational and public policy research institute," challenged the determination in Federal Court.

The EPA sought dismissal for failure to state a claim.

U.S. District Judge Rosemary Collyer on Thursday granted in part and denied the motion in part.

"CEI alleges that EPA officials use text messaging as an alternative to email, and that both text messages and email contain records of EPA's official functions. Despite these similar functionalities, however, CEI avers that EPA has adopted different records retention policies for text messages and emails, even though 'no inherent substantive distinction exists,'" Collyer wrote. "In essence, CEI alleges that EPA has an unstated practice of allowing employees to destroy sole copies of records sent or received by text message."

Collyer that found the actions did not violate FOIA or the Federal Records Act.

"In Kissinger v. Reporters Committee for Freedom of the Press, the Supreme Court explained that FRA establishes only one remedy for the improper removal of a 'record' from the agency: 'The head of the agency is required ... to notify the Attorney General if [she] determines or 'has reason to believe' that records have been improperly removed from the agency,'" the 19-page ruling states. "Based on this enforcement scheme, the Supreme Court held that FRA does not include an express or implied private right of action. This precedent is clear that private litigants cannot state a claim for legal relief under FRA." (Ellipsis and brackets in ruling, citation omitted.)

Collyer said that CEI abandoned and waived its FOIA claim by failing to oppose the agency's argument that "that statute only speaks to disclosure, not the underlying record-keeping practices that preserve documents for disclosure."

Collyer refused to rule completely in agency's favor, however, rejecting a motion to dismiss CEI's request for mandamus relief under the Administrative Procedure Act.

"Despite the stringent limitations on mandamus relief, CEI has adequately alleged an underlying violation of the APA. CEI's amended complaint also alleges a right to mandamus relief for its statutory claims," Collyer wrote. "Therefore, it cannot be said at the pleading stage that CEI has no clear right to relief on any of its claims. Because mandamus ultimately will be tied to the merits of CEI's allegations, the court will not dismiss CEI's requested relief. The clarity of CEI's right to relief and the determination of whether mandamus is justified are questions best reserved for an evaluation on the merits. Accordingly, the court will deny EPA's motion with respect to CEI's request for mandamus relief."

CEI separately sued the National Security Agency for records that the NSA was presumed to have on EPA administrator Lisa Jackson and assistant administrator Gina McCarthy's email and text messages.

CEI filed its FOIA requests in 2012, after revelations that EPA officials used secret email accounts to conduct government business and skirt public disclosure laws.

The think tank specifically demanded information of Jackson's use of a secret email address and the alias "Richard Windsor" to evade FOIA requests.

The EPA produced more than 10,000 records in response, plus two sample Vaughn indices offering justifications for why it withheld some records.

CEI then demanded that the agency reprocess all withheld documents and provide full explanations for why the records were withheld.

U.S. District Judge James Boasberg, in January, found that the EPA performed an adequate search for the records in question, however, and called the allegations "hazy."

"Hazy allegations of administrative malfeasance may sound incriminating, but the court requires concrete, specific challenges to the sufficiency of EPA's search in order to deny the agency summary judgment on this point," Boasberg wrote. "CEI has failed to provide them, and so the court finds summary judgment proper on the adequacy of the search."

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