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Judge: Think Tank’s Lawsuit Over EPA E-Mails Contains ‘Imaginative Conspiracy Theory’

By Emily Atkin on January 31, 2014 at 1:45 pm

"Judge: Think Tank’s Lawsuit Over EPA E-Mails Contains ‘Imaginative Conspiracy Theory’"

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Former EPA administrator  Lisa Jackson addresses the media at a news conference in Chicago in 2008.

Former EPA administrator Lisa Jackson addresses the media at a news conference in Chicago in 2008.

CREDIT: ap pHOTO

A D.C. federal judge on Wednesday mostly threw out the Competitive Enterprise Institute’s (CEI) lawsuit demanding e-mails to and from the personal e-mail account of former Environmental Protection Agency Administrator Lisa Jackson, saying the conservative think tank’s arguments contained an “imaginative conspiracy theory” and that the EPA had adequately complied with the law.

The CEI’s lawsuit was originally filed in 2012, after it was discovered that former EPA Administrator Lisa Jackson had used a second email account under the alias “Richard Windsor” to conduct official government business. The lawsuit asked the EPA to provide any e-mail to or from the secondary addresses that contained any and all of four phrases: “climate,” “coal,” “endanger,” or “MACT,” an abbreviation for Maximum Achievable Control Technology Standards, a type of emission reduction regulation.

There were exactly 11,782 of those e-mails, the order said — 5,132 of which the EPA provided in full, 5,234 of which were provided in part, and 1,416 which were completely withheld.

CEI’s lawsuit sought the e-mails that were withheld. But U.S. District Judge James E. Boasberg ruled Wednesday that CEI was using “broad claims of bureaucratic conspiracy” and “nitpicking over EPA’s refusal to disclose the spelling of its staff’s personal email addresses” to keep its lawsuit alive.

“For the most part, however, CEI speaks loudly and carries a small stick,” Judge Boasberg ruled, saying CEI lacked concrete, specific arguments about why the EPA’s documents were not adequate. “Despite the group’s bold claims, the law and the record show that EPA has almost entirely complied with its obligations under [the Freedom of Information Act] and that it is entitled to summary judgment on nearly every count.”

To prove concealing those documents was necessary, EPA was required to sample 172 of the fully withheld e-mails and 50 of the partially withheld documents, and produce what is known in the courts as a “Vaughn index.” A Vaughn index identifies each document withheld, states the law that exempts it from disclosure, and explains how disclosure would damage the interests protected by that law.

One of the CEI’s arguments that the EPA was withholding critical information was that the EPA’s list of confidential documents began with the number “-0.” CEI had deemed the practice “suspicious,” saying the negative number could have been used to manipulate the documents that EPA would sample for its Vaughn index. In other words, the “10th” document would have become the “11th,” the “100th” became the “101st,” and so on.

Judge Boasberg called this an “imaginary conspiracy theory,” noting that EPA’s documents were not listed in order of chronology, but by tracking number. The documents marked “-0″ were ones that lacked a tracking number, making them appear first.

Though Judge Boasberg granted EPA’s request to be released from most of the lawsuit, he did require the agency to produce “a few last bits of information,” including two instances where EPA withheld the email address of former EPA Administrator and White House adviser Carol Browner. Boasberg ruled there was public interest in knowing whether Browner had used her professional e-mail to communicate with EPA under a different alias — “both for the sake of future FOIA requesters and for those curious about White House compliance with federal record-keeping laws,” he wrote.

“EPA must clarify whether it withheld Browner’s personal or official email address, ” Boasberg said. “If it is the former, EPA need not say more, since, as explained above, Browner has a powerful privacy interest in her own personal email address. If it is the latter, then EPA must release the email address itself, since there is a public interest in knowing whether Browner was using an official account under her own name or under an alias.”

Otherwise, Judge Boasberg said much of CEI’s argument against EPA was “essentially an ad hominem attack on EPA officials,” and that most of what EPA wanted to conceal was adequately proven.

Judge Boasberg’s order can be read in full here.

Carol Browner is a Distinguished Senior Fellow at the Center for American Progress.

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