EPA accused of using instant messages to avoid sunshine laws in lawsuit


By Stephen Dinan-
The Washington Times
Monday, April 1, 2013

Top Environmental Protection Agency officials used computer
instant messages to try to circumvent open-records laws, according to a new lawsuit filed late last week by a researcher who has been demanding theagency comply with the law.

Christopher C. Horner, the researcher who earlier uncovered that EPAofficials were using private email addresses to conduct official business, said that in going over some of those earlier records he discovered theagency was using instant messages, too. He now is suing to get a look at those records, which he said EPA has refused to release.


“It seems we have uncovered yet another major transparency scandal in that either EPA is destroying instant messages against the law, or it is withholding them in defiance of its legal obligations to produce,” Mr. Horner said.

The lawsuit says EPA “has never produced an instant message in response either to a request under [the Freedom of Information Act], or in response to a congressional oversight request, despite numerous requests from both for ‘records’ or ‘electronic records.’”

The complaint was filed late Thursday and was being served on EPA on Monday by Mr. Horner, the Competitive Enterprise Institute and theAmerican Tradition Institute's Environmental Law Center.

EPA’s press office didn’t reply to a request for comment, while the lawyer who acknowledged receipt of the FOIA requests said Monday morning that she would look over the complaint.

Mr. Horner is trying to get instant-message records of two former EPAofficials, one-time Administrator Lisa P. Jackson and former senior climate adviser Lisa Heinzerling, and of current Assistant AdministratorGina McCarthy.

President Obama has nominated Ms. McCarthy to be the next administrator, but congressional Republicans have said questions over the email records could hurt her chances for confirmation.

Several House committees launched investigations into how EPA is complying with open-records laws after Mr. Horner revealed that Ms. Jackson, the former administrator, used a private email address under the alias “Richard Windsor” for much of her official correspondence. Mr. Horner also revealed that another high-level employee used his private email to conduct agency business — a violation of the law.

Monday’s complaint is over fees. Under the Freedom of Information Act, agencies can assess fees for searching and producing records, but those filing the requests can ask for a waiver if it’s in the public interest.Mr. Horner said EPA has waived fees for less important requests in the past.

He said the agency’s denials now appear to be retaliation.

Mr. Horner also said EPA has missed the deadline to respond to his fee waiver appeal, so he had to go to court.

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