EPA Claims it Can’t Find Text Messages Sought in FOIA Lawsuit

Environmental Protection Agency Administrator Gina McCarthy / AP

The Environmental Protection Agency said in court filings Tuesday that it may have lost text messages from former EPA administrator Gina McCarthy that it was required to preserve under federal law

The Competitive Enterprise Institute (CEI), a conservative think-tank, filed a Freedom of Information Act lawsuit last year against the EPA last year seeking the text messages, which CEI said McCarthy and other officials used to skirt federal record law.

The Hill reports:

In the Tuesday filing to the United States District Court for the District of Columbia, Justice Department lawyers representing the EPA said the agency will soon file a notice that it has misplaced records that it was legally required to retain.

"Defendant has decided to formally notify the National Archives and Records Administration (NARA) about the potential loss of federal records relating to text messages," the lawyers told the court.

Once it files that notice the CEI’s claim will become moot, since the records do not exist, the agency said. Lawyers will ask the court for a hearing to dismiss the case.

Earlier this year, the Internal Revenue Service said it lost thousands of emails from IRS official Lois Lerner due to a hard drive crash.

In both cases, the federal agencies did not notify the NARA that it had failed to preserve federal records until forced to under pressure from outside groups and Congress.