By Chaim Mandelbaum
FME Law Counsel
On June 5, 2013, the first of a series of news stories appeared revealing the extent of the information leaked by NSA contractor Edward Snowden. Ultimately, this information exposed a massive effort on the part of the National Security Agency (NSA) to collect “metadata” about electronic communications such as emails, phone calls and text messages going on in the United States. Metadata is the information about an electronic communication such as the duration and time of the communication, the sender and recipient of the communications, etc. However, metadata does not include the actual content of the communication. These revelations quickly spawned a national conversation about privacy and security in the United States. Importantly however, these revelations also dropped a new tool into the laps of those groups and individuals working on another important, though less public, story; the effort to recover public records that employees at the Environmental Protection Agency (EPA) had destroyed.
The story shifts to the EPA where Regina McCarthy is the Administrator of the EPA. Prior to this she was the Assistant Administrator for Air and Radiation within the same agency. Lisa P. Jackson was her predecessor as Administrator of the EPA. Both women stand at the center of this story of missing or destroyed public records.
As part of her job, the EPA provided Ms. McCarthy with a cell phone to use to make calls and to send text messages for agency business. While on the job, she sent and received thousands of text messages from her EPA (and tax dollar) provided cell phone. Attorney Chris Horner, on behalf of the Competitive Enterprise Institute (CEI), became interested in how she was using this taxpayer funded device, and submitted a Freedom of Information Act request seeking her text messages from various dates. Eventually, EPA’s failure to comply forced CEI to sue the agency to get it to comply with the request. At this point, the EPA admitted that none of the text messages sent by Ms. McCarthy existed anymore since they had all been deleted.
Ms. McCarthy’s predecessor as Administrator of the EPA, Lisa P. Jackson, was also involved with another controversial effort to hide records. Horner through FOIA requests showed that Jackson was using an email address under a fake name, Richard Windsor, in order to send and receive work emails, which made it less likely for FOIA and Congressional requests to discover these emails. Eventually, they also discovered that she was sending work related emails using her personal Verizon and Blackberry email accounts. The uncovered emails showed she has asked lobbyists to email her on these personal accounts. As a result, Horner initiated a FOIA request to see all the work related emails sent on her personal accounts. Yet EPA told them that all such emails were gone. They had been deleted.
Federal agencies have an obligation to preserve federal records under the Federal Records Act (FRA). The FRA provides a broad definition of federal records and requires that agencies preserve all records, including electronic records, like emails or text messages, which deal with agency or public business. Even when using private resources, like personal email accounts or cell phones, if a communication involves public business, then it is a public record. In such cases the employee has to forward the communication to the agency, which is supposed to preserve and archive it. 
The effort to recover these lost public records seemed to have hit a dead end, but that was before Mr. Snowden and various news agencies made revelations about the NSA data collection program. Because of its effort to scoop up communications, the NSA likely acquired the metadata about the missing McCarthy text messages, and Jackson emails. This metadata is especially important because of the justifications given by the EPA for the missing records. In both cases the EPA claimed that all the communications were for personal purposes and none involved agency business, thus none of the communications were public records requiring preservation under the FRA. The very metadata collected by the NSA would prove or disprove these EPA claims. Determining the subject lines of emails and the recipients of messages that were sent would show whether the messages were being sent to work colleagues and lobbyists. Likewise, determining when messages were sent would show if they had been sent during work hours. Further once it was determined what other parties had been involved in these communications, it would become easier to recover all of these missing public records.
After the information about the NSA data collection program came to light, it became clear that the NSA might have collected the information needed to recover the missing EPA records. So the Energy & Environment Legal Institute (E&E Legal) and the Free Market Environmental Law Clinic (FME Law) sent a FOIA request to the NSA asking for the metadata from Lisa P. Jackson’s personal Verizon and Blackberry email accounts, both of which she used in her role as Administrator to the EPA to conduct public business. CEI followed with another FOIA request to the NSA asking for the metadata from the phone the EPA has issued to Regina McCarthy.
The NSA responded to both FOIA requests with a “Glomar” response. This response, created in Phillippi v. CIA, 546 F.2d 1009, 1013 (D.C. Cir. 1976), permits an agency to “neither confirm nor deny” the existence of the records sought. The name comes from the Glomar Explorer, a large salvage vessel built by the Central Intelligence Agency (CIA) for its covert “Project Azorian”—an attempted salvaging of a sunken Soviet submarine. In February 1975, journalist Harriet Ann Phillippi requested that the CIA provide disclosure of the existence of the Glomar, to which the CIA chose to “neither confirm nor deny” the project’s existence. The courts agreed with this response, saying that either confirming or denying the existence of the records would provide information about whether or not secret programs existed.
However, agencies cannot use Glomar responses all the time. Its use is limited to when the nature of the material being sought justifies secrecy and the agency provides “as much information as possible” to justify its claim. Further, an agency cannot give a Glomar response when it has already disclosed the existence of the records being sought. While the NSA claimed when issuing its response that leaks of classified information did not prove the existence of the program, the country has a far stronger source than Edward Snowden to prove that the NSA collects metadata. During a press conference on June 7, 2013, President Obama acknowledged the existence of the NSA program to collect metadata. He stated, “As was indicated, what the intelligence community is doing is looking at phone numbers and durations of calls. They are not looking at people’s names, and they’re not looking at content. But by sifting through this so-called metadata, they may identify potential leads with respect to folks who might engage in terrorism.”
When a program’s existence has been acknowledged publicly by as substantial an authority as the President of the United States, an agency like the NSA cannot give a Glomar response to try and hide whether or not such a program exists. E&E Legal and FME Law made this point to the NSA in their appeal of the NSA Glomar response. Yet the NSA continued to refuse to provide any records of the EPA communications, or even acknowledge that it collected and stored the metadata from EPA communications.
As a result of the unwillingness on the part of the NSA to help recover EPA records that were destroyed in violation of the FRA, CEI joined E&E Legal and FME Law to file suit against the NSA. They jointly filed suit on the one year anniversary of President Obama’s press conference admitting the existence of the NSA metadata collection program, highlighting the fact that this is no secret program, but instead one the President himself has acknowledged The lawsuit seeks to force the NSA to provide the metadata on the missing or destroyed EPA communications so that the long effort to recover EPA records and to hold those responsible for their destruction accountable can continue.[Footnote 1] See Answer in Competitive Enterprise Institute v. Environmental Protection Agency, D.D.C. No. 13-779 (filed 7/19/2013) at ¶ 8 (conceding that such texts were sent by EPA Assistant Administrator Gina McCarthy), ¶21 (conceding that EPA provides such officials “with personal digital assistants that have text messaging capability”), ¶¶14, 33 (EPA currently unable to locate such records); Email from Michelle Lo, counsel for EPA, to Chris Horner and Hans Bader, counsel for CEI, at 9/9/2013 3:46 PM (admitting that “Ms. McCarthy uses text messaging,” but arguing that “they were not required to be preserved by the Agency.”); Email from Michelle Lo, counsel for EPA, to Chris Horner and Hans Bader, counsel for CEI, at 8/1/2013 7:25 PM (conceding that “Ms. McCarthy used the texting function on her EPA phone,” and that “none of her texts over the period encompassing the 18 specific dates at issue in CEI’s FOIA request (July 9, 2009, to June 29, 2012) were preserved”). [Footnote: 2] United States Government Accountability Office, “Report to the Ranking Member, Committee on Finance, U.S. Senate: NATIONAL ARCHIVES AND RECORDS ADMINISTRATION. Oversight and Management Improvements Initiated, but More Action Needed,” GAO-11-15, October 2010, www.gao.gov/assets/320/310933.pdf, p. 37.