The Interior Department has for about a year allowed political appointees to weigh in on which federal records are released to the public, creating delays that could violate open records law and expose the department to legal action.
“If political officials are becoming involved in the process and as a result of that causes the agency to not comply with its obligations” under the Freedom of Information Act, “that is a serious problem,” said Adam Marshall, an attorney for the Reporters Committee for the Freedom of the Press.
While Interior says the so-called awareness review process merely continues a practice informally exercised during the Obama administration, First Amendment lawyers say the department’s formal application of the policy is unusual.
Interior formalized its policy in May 2018 without a public announcement, and in February expanded its application to records relating to officials who left the department, including former Interior Secretary Ryan Zinke.
The process, which flags for review documents that name political appointees, has become a concern for lawmakers. Before his nomination to be the department’s solicitor was approved Tuesday by the Senate Energy and Natural Resources Committee, acting solicitor Daniel Jorjani was questioned by Democrats who wanted to learn more about his involvement in these reviews.
Jorjani did not sway any committee Democrats. Prior to voting against the nomination, ranking member Joe Manchin III of West Virginia said the nominee’s answers about the awareness review contributed to his vote.
“The Solicitor must uphold the law above all else — above party, politics, and ideology. That was not the sense I got from Mr. Jorjani’s responses to our questions,” Manchin said in a news release.
Department correspondence obtained by CQ Roll Call show that some of the requests put through this process were for communications with Zinke’s wife and records related to the Old Post Office building on Pennsylvania Avenue, now a hotel leased to President Donald Trump’s company.
At the department’s National Park Service, the policy slowed request processing so much that in December career records officials warned agency leadership in a memo that it was preventing them from giving responses within the time frame required under the law.
“Delays resulting from the Awareness Review process, which prevent the NPS from responding to requests within the legally required 20 workday time frame, are preventing the NPS from meeting its legal obligations under the FOIA. Such delays leave the NPS open to potential litigation, which could result in the assessment of attorney fees,” the memo stated.
If the policy is causing the department to regularly miss statutory deadlines for responding to these requests, it could be subject to court challenges, according to Marshall of the press freedom group.
Kevin Goldberg, legal counsel to the American Society of News Editors, agreed and said the public should be “outraged.” More people could be empowered to go to court over information withheld or redacted as part of individual requests and others could sue to stop the policy itself, he said.
“It has the distinct possibility of increasing litigation against the Department of the Interior,” Goldberg said.
Separately from the awareness review process, Interior has faced criticism for a rule proposed in December to curtail the volume of records it must release under FOIA. The proposal has yet to be finalized.
And the National Archives and Records Administration is investigating allegations that Secretary David Bernhardt violated federal record-keeping laws by maintaining a private calendar on a single Google document that his staff overwrote repeatedly. The department says its legal team believes the practice was legal.
Lolita Zinke’s emails
In June, the Western Values Project, an environmental group critical of the Trump administration, sent a public records request to the National Park Service for emails between an official at the agency and Lolita Zinke, the former Interior secretary’s wife.
A month later, Jessica McHugh, a career official handling the request, told the group that after completing a search of their records, officials had identified 96 pages of “potentially responsive materials that is currently in the review process,” and the department hoped to complete the request within the next few weeks.
Days later, political officials were alerted that the request was projected for release the following week. Ryan Zinke’s politically appointed communications director, Heather Swift, interceded with the records official.
“A number of pages in this are non-responsive,” Swift wrote, asserting that because a portion of the emails didn’t include Zinke’s wife specifically, they could be left out of whatever was released to the group.
McHugh disagreed. She said the conversations Swift sought to leave out were included because they were incorporated into the conversations with Lolita Zinke in an email chain. The department was “not able to remove that part of the thread as ‘non-responsive,’” she said in emails provided to CQ Roll Call and shared with Interior Department officials.
Swift replied that they would discuss the issue further and said to “please be sure” two other political appointees were included in the email conversation.
When the Western Values Project finally got the records, the documents considered “responsive” were reduced to 16 pages.
The internal correspondence was provided to CQ Roll Call by the Center for Western Priorities, a left-leaning environmental group often critical of the Trump administration. Aaron Weiss, deputy director for the organization, said the documents it obtained through the FOIA process “show definitively that political appointees at the Interior Department are interfering with the Freedom of Information Act.”
In an email, Interior spokeswoman Molly Block said every FOIA response is “made by a career FOIA officer, after concurrence by a career lawyer in cases where information is redacted.” The process allows “a FOIA officer to receive contextual information in order to help them better apply the relevant legal standards,” she said.
Block said the process existed at Interior under the Obama administration, but she did not provide evidence to support that assertion. The department formalized it in 2018 “for the sake of transparency,” Block said.
“The awareness review process has existed at least going back to the Obama Administration. As the name implies, the process ensures that matters of concern to Department leadership are flagged for awareness,” she said.
Jorjani, the acting solicitor, has been the top attorney at Interior since the policy was implemented and has formally overseen the records request process since November as the department’s chief FOIA officer.
At his confirmation hearing earlier this month, Jorjani minimized his direct role with FOIA requests.
“I myself don’t review FOIAs or make determinations,” Jorjani told Maine independent Sen. Angus King on May 2.
Jorjani later tweaked that response in a written statement to Oregon Democratic Sen. Ron Wyden. “I typically did not review records prior to their release under the FOIA,” Jorjani wrote.
Block said that as the chief FOIA officer, Jorjani is responsible for “providing direction to a FOIA program of over 140 employees working on a caseload that has increased more than 25 percent during this Administration.”
“In this role he does not typically review individual FOIA requests,” she said.