Judge tosses 'inventive' suit seeking EPA phone records from NSA, threatens footnote limits
Photo from Shutterstock.
A federal judge in Washington, D.C., has tossed a suit asking the National Security Agency to provide records of phone calls, emails, and text messages for two officials of the Environmental Protection Agency.
U.S. District Judge James Boasberg termed the suit “novel and inventive” in the opening paragraph of his Jan. 13 decision (PDF) and lambasted a plaintiff on page 7 of his opinion for failing to heed warnings about its “excessive and distracting use of footnotes.”
Boasberg said the NSA did not have to provide the records because there is no information in the public domain showing it had the information, and further disclosure could create harm. The Washington Times has coverage.
The Competitive Enterprise Institute and two other plaintiffs had initially filed Freedom of Information Act requests with the Environmental Protection Agency seeking information about EPA officials’ phone calls, emails, and text messages. “Apparently dissatisfied with this more traditional approach,” Boasberg wrote, “plaintiffs now attempt a novel and inventive gambit to obtain these records—they demand them from the National Security Agency. After all, doesn’t the NSA have everyone’s phone, email, and text-message records?”
The plaintiffs believe EPA officials have hidden their work by using unofficial means of communications, Boasberg said. They sought records for EPA Administrator Gina McCarthy and her predecessor. The EPA produced “voluminous records,” but did not provide text messages of the two officials, Boasberg wrote.
After the plaintiffs filed freedom of information requests with the National Security Agency, the NSA refused to confirm or deny whether it had responsive records, saying any disclosure would compromise national security efforts. Boasberg agreed with the NSA.
“Because of the potential consequences that additional disclosures could have on national security, the court will not require the agency to tip its hand any further,” he wrote.
Boasberg singled out the Competitive Enterprise Institute for its footnotes, writing that the court had previously warned the Institute about its “excessive and distracting use of footnotes” in its freedom of information case against the EPA. At that time, Boasberg said, the court stated it trusted the incident would not be repeated.
“Unfortunately, those words appear to have struck stony ground,” Boasberg wrote. “While CEI’s use of footnotes in this case is not quite so egregious, plaintiffs’ inclusion of 51 substantial footnotes in a 28-page brief again imposes on the reader’s patience. Additional briefs like this will, in the future, result in the striking of pleadings and the imposition of explicit limits on footnotes.”
Hat tip to @ZoeTillman.
