The Landmark Legal Foundation believes the requested -- but never delivered -- messages to outside groups would have revealed EPA attempts to influence the 2012 presidential election.
"The EPA is a toxic waste dump for lawlessness and disdain for the Constitution,” said Landmark Legal President Mark Levin.
His legal group wants the federal court to fine the EPA “in an amount sufficient to deter future wrongdoing.”
Landmark Legal also is asking the judge to appoint an independent monitor to ensure that EPA is properly preserving and searching for all records that fall under Landmark’s original FOIA request.
“EPA cannot be trusted,” the lawsuit states. “The appointment of an independent monitor is essential to ensure that EPA complies fully with its obligation to preserve documents…”
And finally, the lawsuit asks the judge to direct the EPA to inform parties in other lawsuits that it may have destroyed or failed to preserve records they had a legal right to receive in their litigation.
“When any federal agency receives a FOIA request, the statute says it must preserve every significant repository of records, both paper and electronic, that may contain materials that could be responsive to that request,” Levin said. “When an agency gets sued it must also notify everyone who might be involved in the suit to preserve everything in their possession that could be discoverable in the litigation.
"But the people at the EPA, from the Administrator on down, think they’re above the law, that no one has the right to question what or how they do their jobs. Well, they’re wrong. The laws apply to everyone, even federal bureaucrats.”
The lawsuit says EPA should have searched the personal emails and text messages used by top EPA officials, including then-Administrator Lisa Jackson, to conduct official business, but it failed to do so.
"EPA didn’t and doesn’t care, an attitude that it has carried into every aspect of its dealings with Landmark," the lawsuit says. "EPA has treated Landmark as an adversary from the receipt of its FOIA request, not as a rightful participant in a FOIA regime as enforcing principles of open government subject to oversight by its citizens."
This is the second time Landmark Legal has sought sanctions against the EPA in FOIA litigation.
In 2003, the Agency was held in contempt by a federal judge for destroying email backup tapes in a similar suit over “midnight” regulations hurried into law in the final days of the Clinton Administration. In that case, the EPA was fined nearly $300,000.
"The EPA has to learn that you can’t save the planet by destroying the rule of law,” Levin said. “It also must understand that some of our most precious resources are the principles of limited government and official accountability enumerated in the Constitution. If we don’t protect those, saving the snail darter or the spotted owl won’t mean a thing.”
Landmark Legal isn’t the only information-seeker to be frustrated by EPA stonewalling: EPA Administrator Gina McCarthy recently informed Congress that EPA was unable to obtain requested records because of a computer crash.
According to Landmark Legal’s current lawsuit, “Imposition of these sanctions will also deliver a larger message to the EPA and the entire federal bureaucracy to take its data preservations obligations seriously.”
Landmark Legal Foundation is a nonprofit, public interest law firm with offices in Kansas City, MO. and Leesburg, Va.