A conservative think tank sued the Environmental Protection Agency Wednesday for text messages sent by Gina McCarthy, President Obama's pick to head the agency, from days on which she testified before Congress.
The Competitive Enterprise Institute was "credibly informed" in April that agency officials had warned McCarthy, currently the EPA's assistant administrator for air, that texts she was sending about members of Congress during hearings where she was a witness posed a risk to her and the agency, according to CEI's announcement of its lawsuit.
The suit specifically requests texts for the 18 specific dates McCarthy has testified before Congress. CEI filed a Freedom of Information Act request last month for the texts. The EPA has refused to release the records, but the agency's FOIA office told CEI senior fellow Christopher Horner the records were not billable, meaning they could be produced in less than two hours.
Obama nominated McCarthy on March 4. The Senate Environment and Public Works Committee voted for her confirmation on May 16, a week after committee Republicans boycotted a scheduled vote in protest of the EPA's lack of transparency. The vote goes to the full Senate in July.
The EPA's failure to release McCarthy's texts means the agency has either withheld records it is required by law to produce, or it has destroyed text messages to avoid making them public, according to Horner.
Information on mobile devices, including cellphones and PDAs, is subject to Freedom of Information Act laws, according to the EPA's own website.
Horner first exposed former EPA Administrator Lisa Jackson's "Richard Windsor" alias email account last year.
Jackson resigned in December, shortly after media reports that the EPA inspector general was investigating whether her use of the private email account for business violated transparency laws. The EPA was ordered in federal court to release the emails, which it has done in several batches since January, heavily redacted.
Michal Conger is a member of The Washington Examiner's Watchdog investigative reporting team. She can be reached at email@example.com.