Lamberth finds EPA in contempt for e-document purge

U.S. District Judge Royce C. Lamberth this week held the Environmental Protection Agency in contempt for destroying electronic documents in violation of a court order issued as a result of a Freedom of Information Act request.

The contempt charge appeared to have little practical impact, but Lamberth did rule yesterday that the agency must pay legal expenses of the Landmark Legal Foundation of Herndon, Va., the plaintiff in the FOIA and contempt proceedings.

Lamberth exonerated former EPA director Carol Browner, former general counsel Gary Guzy and former deputy director W. Michael McCabe of the contempt charges sought by Landmark.

The court found that EPA officials had reformatted PC hard drives, erased and reused e-mail backup tapes, and deleted e-mails that potentially could have held information deemed relevant to Landmark's FOIA request. The legal foundation had sought records about environmental regulations that EPA officials reportedly sought to rush into effect before the Bush administration took office in 2001.

Landmark filed its original FOIA request Sept. 7, 2000. Dissatisfied with EPA's response, the foundation filed suit Sept. 29, 2000, to enforce its request. In response to Landmark's concern that EPA officials would destroy records, Lamberth issued a preliminary injunction 'to prevent the destruction of responsive materials,' according to the judge's recent order ending the case.

After the Bush administration took office, EPA's inspector general reviewed the matter and directed agency personnel to partially reconstruct information that had been recorded on some of the hard drives. EPA also provided additional records to the plaintiffs. On July 24, Lamberth ruled that EPA had satisfied Landmark's underlying FOIA request and granted summary judgment in favor of the agency.

'EPA's search in response to Landmark's FOIA request was adequate and reasonable,' Lamberth said. 'The court and EPA have provided the best remedy possible'though it is still imperfect'for EPA's document destruction.' The court dismissed Landmark's underlying lawsuit.

The U.S. attorney's office declined to comment on the matter. A spokesman said the case is still under consideration.

Landmark president Mark Levin, who called the foundation a conservative public interest law firm, said 'the effort to destroy this information makes it fairly obvious that they didn't want it released.' He said the information that EPA did release was for the most part 'completely useless.'

Robert P. Trout of the Washington law firm Trout & Richards PLLC, which represented Browner, said she had asked EPA computer specialists to reformat her computer's hard drive to remove personal information. 'In discovery [the preliminary part of the proceeding] it was shown that there was nothing on her computer in any event that would have been responsive to the FOIA request.' He said Browner did not know about Lamberth's order.

Joseph Sandler of the Washington law firm Sandler, Reiff & Young PC represented McCabe. He said that McCabe also did not know about Lamberth's preliminary injunction. 'It is ridiculous'there was no violation,' Sandler said. 'Everything was checked, and nothing was removed. ' They actually recovered the contents [of McCabe's hard drive] and determined there was nothing responsive.'

Lamberth previously has issued findings of contempt against the Interior Department, Interior secretaries of the Clinton and Bush administrations, and other officials in connection with lawsuits over the department's management of American Indian trust funds.

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