UPDATE: Unless DoJ delays the expected release today (possible, foot dragging is a common thing with these as they try to “sanitize”) we’ll have the first update here soon after the first release. – Anthony
Guest post by Chris Horner
On Monday, per its agreement as filed with the U.S. District Court for the District of Columbia in CEI v. EPA, the Environmental Protection Agency and/or its lawyers the Department of Justice are to produce the first of four deliveries of approximately 3,000 emails to or from the Administrator formerly known as “Richard Windsor”.
Specifically, EPA owes us a cache of identified emails to or from EPA Administrator Lisa Jackson (by pure coincidence, that’s now “outgoing Administrator Jackson”…), using one or more of four keywords: coal, climate, endanger/endangerment and/or MACT (“war on coal” emails).
I detailed the backstory and reveal these accounts for the first time in The Liberal War on Transparency: Confessions of a Freedom of Information ‘Criminal‘ published in October — irony alert, it was Jackson who had called my use of FOIA ‘criminal’.
We already possess three Windsor emails, which tell us that this account was, at minimum, for use corresponding with a close circle of political appointees. And some lawyers, in on the false identity.
So here are a few questions to consider as we await delivery and examination of the first tranche:
- How broad is the universe “in on” the false identity for recordkeeping purposes; that is, who were Windsor’s correspondents aware of the account, the intent of which we can only speculate about but the one inescapably foreseeable outcome of which was to subvert federal recordkeeping and disclosure laws?
- Rephrased, who is now off of any short list to replace Winds…Jackson as EPA administrator? (Hint, we already know the list includes her acting replacement, Bob Perciasepe who, my original source within EPA also states to me also was suspected of using an “alias”).
- Who else now faces questions next time they are before Congress, about their own habits given their complicity in this, and having said nothing?
- Will we see correspondence with more lawyers, since this is, by EPA’s spin, Jackson’s account for internal correspondence?
- For example, will we see former EPA general counsel, Scott Fulton, who by coincidence resigned the day we revealed copies of Windsor’s emails, here. Did EPA’s inspector general, who has vowed an investigation — stop laughing — ever correspond with the administrator’s account that, the Agency says, was for her internal correspondence? (The first email address of a Windsor correspondent that EPA attempts to redact probably puts the lie to this non-responsive spin that the false identity was only used for internal correspondence).
- If not, what other account did she use to correspond with these lawyers? Remember, EPA said her public account was too cumbersome to use.
- Come to think of it, what email account did she use to correspond outside of the Agency — for example, with rent-seeking businesses like GE and green pressure group allies.
- Was the account used for corresponding with external allies her personal account? Because another of my requests for some of her correspondence with colleagues using that account, prompted by a FOIA request revealing that they were all aware of it, is presently the subject of possibly the most inane stonewall I have yet faced. In fact, that correspondence involves discussions about what her secondary account address would be.
- In order to kick the can of revealing “Windsor” correspondence further down the road until media heat possibly cools — and Jackson is safely ensconced at, e.g., Princeton University — will EPA abandon its line to date that this unprecedented false identity account is really just the sort of “secondary”/alias account used by all administrators since Carol Browner, but which an EPA memo I found states “The secondary e-mail accounts are configured so the account holder’s name appears in the ‘sent by’ field”? Mmm.
- The latter is a big question, the answer to which could signal the administration are going deep into the bunker and seek delay in the courts.
- Finally, how ostentatiously will EPA and/or DoJ stoke our cynicism, with redactions or forcing out first the most benign mail (“most benign mail in a dummy account that violates federal law” being a fairly restricted universe, I admit)?
To date, the signs, which we might detail later and which might prove relevant to our arguments with the court, haven’t been good. It is entirely possible that the government intends on simply kicking many required disclosures, and the legal briefing with the embarrassing arguments necessary to hide things after insisting they have nothing to hide, into the summer. In that event we have limited, if still a couple, of options to get things on a more productive track.
You should know that FOIA productions tend to involve the government releasing those records about which no one around the government table had any demands for redaction or withholding (e.g., personal or private information, legitimate “pre-decisional” deliberations); the next production(s) includes those over which objections had been ironed out; the final is the dump of pages of black rectangles, or redactions, and a list of what the government refuses to turn over, period.
This procession obviously presents a reluctant bureaucrat with opportunities for mischief (which, like the rest of how this indispensable law works, and some remarkable schemes it has uncovered, I detail in the last two chapters, the How-To guide of the book‘!)
FYI, I already have two followup requests seeking to answer some known unknowns and seal off certain avenues of escape. These are for a brief period of Office of the Administrator correspondence with Jackson’s personal account, and all Richard Windsor mail. EPA responded with the most risible stonewall yet of any they have tossed my way these many years.
So grab the popcorn but, to be safe and possibly pleasantly surprised, hit the dimmer on your expectations for Monday’s production.