Political appointees decide on FOIA releases at Interior
The Interior Department has developed a second, undisclosed internal Freedom of Information Act review policy, which requires certain political appointees to sign off on documents before releasing them publicly, according to internal emails and documents reviewed by CNN.
This extra layer of review, established in a draft memo in May 2018 that CNN has viewed, requires the deputy chief of staff, director of communications and the deputy solicitor to be copied on documents that mention politically appointed staff members before they are released in response to a FOIA request, a process critics say is injecting politics into what is supposed to be a nonpolitical process.
Government agencies have internal FOIA offices that handle all FOIA requests. These offices are typically staffed by career officials, not political appointees. Agencies can develop their own internal processes for how they respond to FOIA requests, but the process is supposed to remain nonpartisan.
The emails and documents CNN reviewed are included in a complaint from Earthjustice, representing environmental advocacy groups the Sierra Club and Friends of the Earth, to the Interior Department’s inspector general.
In the complaint, the groups ask the IG to investigate the department’s practices when responding to FOIA requests, because they are concerned this extra layer of review is slowing the department’s responses to the requests, contributing to missed court-mandated deadlines to produce internal documents. Earthjustice is a litigation firm that frequently represents environmental groups.
While the process is laid out in a draft memo, it is not included in the department’s “awareness process,” which has been published publicly and is dated May 24, 2018. The Interior Department acknowledges only the “awareness process” as its official FOIA review policy.
The Interior Department did not initially directly respond when asked about the draft memo with the extra layer of review from certain political appointees and whether it is still used. In response to CNN’s questions, Interior Department spokeswoman Molly Block said, “The official policy that we adhere to is published on our website.”
After this story published, Block denied that there is a second FOIA process and said, “There is no requirement for certain political appointees to sign off on documents.”
“Once again, the Department does not have an affirmative response requirement from political officials, and has not had such a policy in this Administration,” Block said in an email after this story published. “Because there have apparently been misunderstandings about this question, including in prior Administrations, the Awareness Review Process was formalized in writing for the first time by this Administration.”
The “awareness process,” published publicly, requires FOIA officers to search all documents for mentions of any political appointees. Then an attorney from the department’s Solicitor’s Office and any relevant employees are given 72 hours to review the documents before they’re released publicly. The policy states that if no one responds after 72 hours, silence is considered an acknowledgment that the document production can move forward.
The department updated the “awareness process” on February 28, instructing FOIA personnel to first notify their bureau contact, then make a list of all political appointees included in the document production, then notify a Solicitor’s Office attorney. The reviewer and attorney are then given three days to review the documents.
However, internal emails obtained by environmental advocacy groups through FOIA show that a second layer of review and approval by certain political appointees was added along with the awareness process. It just wasn’t included in the official memo.
Emails show secret process started in May 2018
The extra layer of review first appears in a draft memo in May 2018 called “Day in the Life of the OS FOIA Office.” In the memo, it states that after the documents produced in response to a FOIA request are returned from the Solicitor’s Office, a FOIA official reviews the documents for any political appointees. Then the political appointees named have “72-hour awareness to 5 days” to review the documents.
“Deputy Chief of Staff, Director of Communications, and the Deputy Solicitor are cc’d” on each group of documents being reviewed by any political appointees as well, the memo states.
While this language was not included in the “awareness process” dated May 24, internal emails reviewed by CNN suggest that certain political appointees were copied on documents produced in response to FOIA requests, a sign the process is being followed, and the advocacy groups allege it caused the department to miss or almost miss at least three court-ordered document production deadlines.
An email from Interior FOIA Public Liaison Clarice Julka sent on June 11, 2018, says that “in addition to the written policy on awareness review, please do the following: For any releases of documents involving the following offices: Comms, OCL, Exec Sec, External Affairs, Secretary, Chief of Staff, Deputy Chiefs of Staff and their assistants, please send the records and the response to DCOS, Downey Magallanes, at least 72 hours prior to release and confirm with her prior to release.”
OCL is the Office of Congressional and Legislative Affairs. Magallanes was the deputy chief of staff to the secretary at the time that the email was sent.
On August 2, 2018, Nicholas Banco, who works in the FOIA office, emailed Magallanes, then-press secretary Heather Swift and a handful of other political appointees, saying, “Unfortunately, the Department has missed its initial proposed date for production and DOJ is seeking a release as soon as possible. OS is intending to release the attached materials no later than August 6, 2018. Please expedite your review if at all possible.”
The groups allege that Banco was waiting for an affirmation from the political appointees copied on the email before moving forward with document production. An email from acting Associate Solicitor Aaron Moody sent on May 1, 2018, to Magallanes asks her to complete her awareness review before the following day so the department can meet a court-ordered deadline. The groups allege this approval is also the reason these documents were held up.
A separate email from a staffer in the department’s FOIA office, Ryan McQuighan, requests “affirmative response” from two political appointees copied on the email before he can release documents. The advocacy groups allege that this email shows McQuighan was waiting for their response to move forward with document production. On April 2, 2018, McQuighan writes that”deadline for this FOIA was last Friday, so we need to get affirmative response soon.”
Not illegal, but ‘concerning’
FOIA experts say that while on its face this added layer of review by political appointees is not illegal, it raises concerns.
Elizabeth Hempowicz, the director of public policy for the Project on Government Oversight, said that if the political appointee’s decisions are “based on anything other than the law” — such as being “based on political considerations, how it will affect the administration” — that could make the implementation of the policy illegal.
“Now, you are involving them in the decision making of what’s going out, and that’s where there might be some impropriety,” Hempowicz told CNN.
The documents that show the creation and implementation of the two policies were originally obtained through a series of FOIA requests by the Sierra Club and Friends of the Earth. The groups first made the requests in June 2018, and they received documents from the Interior Department between August 2018 and March 2019. The groups went to court to obtain the documents, according to Earthjustice attorney Yuting Chi.
“They’re allowed to have a process. They are allowed to have departmental regulations. What they’re not allowed to do is to fail to meet the FOIA deadlines that is statutorily mandated,” Chi told CNN.
This is not the first time the agency has come under scrutiny for its handling of FOIA requests.
At the end of 2018, the department proposed a rule that would change how the agency responds to FOIA requests. The proposal, which claimed it was designed to “streamline the FOIA submission process,” would limit the number of requests individuals or groups could make each month. It would also allow the department to “not honor a request that requires an unreasonably burdensome search.”
A department spokeswoman said making the process more efficient would “ensure more equitable and regular access to federal records for all requesters, not just litigious special interest groups.”
During a Senate Appropriations subcommittee hearing on May 22, Interior Secretary David Bernhardt said he was deciding what to do about the proposed FOIA rule after receiving feedback from a bipartisan group of senators and thousands of public comments on the rule itself.
“I’m considering whether we should scrap it, whether we should proceed with it or whether we should significantly modify it,” Bernhardt said during the hearing.
This story has been updated with additional comment from the Interior Department that came after this story published.