Judge Splits Difference on EPA Cell Phone Records
The Competitive Enterprise Institute (CEI), in response to the rejection of Freedom of Information Act requests for EPA-related texts, claimed the EPA “destroyed” more than 5,000 messages on agency-issued cell phones that contained “substantive agency communications.”
The EPA, in response, claimed that text messages were not “records” it was required to retain under the Federal Records Act.
CEI, a Washington, D.C.,-based “educational and public policy research institute,” challenged the determination in Federal Court.
The EPA sought dismissal for failure to state a claim.
U.S. District Judge Rosemary Collyer on Thursday granted in part and denied the motion in part.
“CEI alleges that EPA officials use text messaging as an alternative to email, and that both text messages and email contain records of EPA’s official functions. Despite these similar functionalities, however, CEI avers that EPA has adopted different records retention policies for text messages and emails, even though ‘no inherent substantive distinction exists,’” Collyer wrote. “In essence, CEI alleges that EPA has an unstated practice of allowing employees to destroy sole copies of records sent or received by text message.”
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