For Immediate Release:
June 9, 2014

Craig Richardson
[email protected]

E&E Legal and FME Law Sue NSA to Compel Production Under FOIA of Records that EPA Destroyed but Spy Agency Grabbed; Records Relate to Administrator Gina McCarthy’s Destroyed Text Messages, Former Administrator Lisa Jacksons Verizon Account She Used to Correspond with Lobbyists

Washington, D.C. – Today, the Energy & Environment Legal Institute (E&E Legal) and its counsel, the Free Market Environmental Law Clinic (FME Law), along with the Competitive Enterprise Institute (CEI), filed suit in the U.S. District Court for the District of Columbia to compel the National Security Agency (NSA) to release U.S. Environmental Protection Agency (EPA) records NSA collected as part of its data collection program.  The EPA records in NSA’s possession relate to EPA’s use of instant messaging as an alternative to email — all of which texts sent to or from Administrator Gina McCarthy EPA has acknowledged destroying — and former Administrator Lisa Jackson’s Verizon account.  A previous FOIA request showed Ms. Jackson used this unofficial account to correspond with certain lobbyists, including Sierra Club president Michael Brune and select industry representatives.  By making this decision Ms. Jackson made this account subject to the Freedom of Information and Federal Records Acts.

The requested information will inform the public of Ms. Jackson’s use of an alternative account for EPA business with close friends, and Ms. McCarthy’s claim that she destroyed all among thousands of her texts on her EPA-assigned phone because each and every one was “personal”.  Metadata information that CEI has been able to obtain, however, reveal that this “personal” correspondence on the EPA-assigned phone included eleven McCarthy aides, including Joe Goffman, Peter Tsirigotis, Steven Page, and eight others central to EPA’s “War on Coal.”

NSA has refused to produce any of the information despite having made it subject to FOIA when it decided to collect the information.

“EPA’s assertion that it destroyed, or allowed Ms. McCarthy to destroy, an entire class of correspondence on her official phone left us wondering if the taxpayer would ever have any way to get to the bottom of this remarkable display of unlawful hubris,” said Chris Horner, FME Law counsel who filed the complaint on behalf of all plaintiffs.  “This was compounded by Ms. Jackson’s use of her Verizon account to work with certain special interests on EPA-related issues. Thank goodness the spies inadvertently swept up some of their own, some lawbreaking political activists in the administration while peering into the general public’s affairs.  By deciding to do this, NSA of course made all of the information it collected subject to FOIA, barring one of nine specific exemptions like personal privacy.  Since the idea that EPA phone records are personal is absurd, the taxpayer may in the end be rescued by a little government-on-government spying.”

The NSA will neither even confirm nor deny that is has the EPA records, or the program by which it collected them despite the Agency, Verizon and President Obama already admitting to it.

“Just as the President of the United States is claiming that his administration ‘is the most transparent administration in history,’ his key soldiers in the War on Coal are using government issued technology to correspond with each other, and when these records are sought, they claim they are personal, and have all been destroyed,” said David Schnare, E&E Legal General Counsel.  “This certainly doesn’t pass the sniff test.”

The complaint notes that the “NSA’s program of collecting phone and text message metadata is widely known, and has been acknowledged by the President of the United States, by the Inspector General of the NSA and by Verizon, one of the companies which provided metadata to the NSA.”  It was just a year ago that NSA’s practice of monitoring e-mails, text messages, web searches, and other customer information of the three major phone networks came to light, and was acknowledged by President Obama himself.  NSA, hiding behind a potential “threat to national security,” is now covering for EPA having engaged in a cyber-bonfire.

In 2013 E&E Legal and FME Law filed a FOIA with NSA seeking the relevant documents.

The Energy & Environment Legal Institute (E&E Legal) is a 501(c)(3) organization engaged in strategic litigation, policy research, and public education on important energy and environmental issues. Primarily through its petition litigation and transparency practice areas, E&E Legal seeks to correct onerous federal and state policies that hinder the economy, increase the cost of energy, eliminate jobs, and do little or nothing to improve the environment.

The Free Market Environmental Law Clinic (FME Law) provides litigation and research services to qualified clients. We concentrate on cases involving landmark free-market pro-environmental litigation; use of open records and data quality laws to force greater governmental accountability and transparency; and, cases that allow the Clinic to help create the next generation of free market oriented attorneys.