The Environmental Protection Agency (EPA) told a federal court that it may have lost the text messages at the center of a lawsuit by a libertarian think tank.
The Competitive Enterprise Institute (CEI) sued the EPA last year in federal court to compel the release of text messages to and from Administrator Gina McCarthyGina McCarthyObama EPA chief: Pruitt must uphold ‘law and science’ Overnight Energy: Congress does away with Obama coal mining rule GOP suspends rules to push through EPA pick despite Dem boycott MORE and her predecessor under the Freedom of Information Act.
“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.
Despite the filing, EPA spokeswoman Liz Purchia said the agency maintains that the text messages neither had to be preserved nor were subject to disclosure. Text messages can legally be deleted, she said.
“EPA is not aware of any evidence that federal records have been unlawfully destroyed,” Purchia said.
The agency is filing its notice with NARA “out of an abundance of caution,” she said.
Earlier this year, McCarthy told lawmakers that due to a hardware malfunction, her staff was having trouble providing information the House requested for an investigation.
That came weeks after the IRS made a similar claim in the ongoing case of Lois Lerner, which United States Archivist David Ferriero said likely violated a federal law requiring agencies to hold onto records.
In both cases, the federal agencies did not immediately notify the National Archives and Records Administration of the problems.
The CEI filed its lawsuit last year, accusing EPA leaders of using text messaging for official business in an attempt to avoid disclosing the communications.
The EPA has previously said in court filings that the documents requested by the CEI are not covered by disclosure laws.
This post was updated at 4:30 p.m.