Alleged Interference in FOIA Litigation Process

Published by the Department of the Interior, Office of Inspector General on 2020-08-11.

Below is a raw (and likely hideous) rendition of the original report. (PDF)


                OFFICE OF
                INSPECTOR GENERAL

   Alleged Interference in
   FOIA Litigation Process

       This is a revised version of the report prepared for public release.

Report Number: 20-0388                     Date Posted on Web: August 11, 2020
We initiated this investigation based on information our Office of Audits, Inspections, and
Evaluations (AIE) provided about an ongoing evaluation that was initiated in response to a
congressional request. AIE is evaluating the U.S. Department of the Interior’s (DOI’s) awareness
review process for Freedom of Information Act (FOIA) requests, a process that provides a
heightened review of FOIA-responsive documents containing the names or email addresses of
politically appointed employees before the documents are publicly released. 1 During the
evaluation, AIE personnel learned that DOI employees had been directed to delay releasing
documents responding to a FOIA request that was being litigated in U.S. district court. AIE
referred the matter, which is described below, to our Office of Investigations to determine
whether that instruction conflicted with the court order.

On February 4, 2019, David Bernhardt was nominated to become the Secretary of the Interior.
Soon afterward, then Counselor to the Secretary Hubbel Relat directed staff from the DOI’s
Office of the Solicitor (SOL) and members of the DOI’s FOIA staff to temporarily withhold
documents related to Bernhardt from an upcoming release of documents under the litigation. The
anticipated release of documents was related to civil litigation pending in U.S. district court, in
which the court ordered the DOI “to review 1,500 pages of potentially responsive records per
month and release the responsive documents.” As a result of Relat’s direction, 253 pages were
withheld from the DOI’s February 2019 release. The February 2019 release included 1,228 pages
identified as responsive to the plaintiff’s FOIA request. The DOI ultimately released most of the
253 pages in December 2019, 7 months after Bernhardt was confirmed as Secretary. 2

During our investigation, DOI officials asserted that the DOI was allowed to scrutinize what it
deemed to be sensitive information before releasing it under FOIA, and that it had discretion—
including under the court order—to determine when and how many responsive documents to
release. In addition, the U.S. Department of Justice (DOJ) attorney representing the Government
in the FOIA litigation told us that the court order did not require the DOI to release 1,500 pages
per month, only to review 1,500 pages per month, and that the DOI had discretion to determine
the order in which to release responsive documents. Considering that a court order is in place
governing the DOI’s review and production of documents, as well as the DOJ attorney’s
assessment that DOI officials had discretion on the order in which to produce materials, we
concluded that the court is the proper venue to determine whether the DOI met its production
obligations under its order.

Based on our conclusion, we closed this investigation, and we are presenting the facts
surrounding this specific matter in this report. We referred our findings to the Chief of Staff for
the Office of the Secretary for his information only.

1   The results of that evaluation will be reported separately.
2   Of the 253 pages, 215 were released in December 2019. The other 38 pages remain under review by the Government.

A. The FOIA Litigation

In 2017, multiple requests were filed under the Freedom of Information Act (FOIA) for
documents related to a U.S. Department of the Interior (DOI) initiative. A requestor later filed
suit in U.S. district court, alleging the DOI had failed to provide records relating to their specific
FOIA request, which concerned the DOI initiative (the “FOIA litigation”).

In 2018, the court issued an order setting a monthly requirement for the DOI’s review of
documents related to the FOIA litigation. Specifically, the court ordered the DOI to “review
1,500 pages of potentially responsive records per month and release the responsive documents.”
The court order did not set a minimum number of documents the DOI had to release per month.

B. David Bernhardt’s Nomination and Confirmation as Secretary of the Interior

On February 4, 2019, the President nominated David Bernhardt, the Deputy Secretary of the
Interior at the time, to become the new Secretary of the Interior. Also in February, Hubbel Relat
(who is now the DOI deputy solicitor but at the time was the DOI’s counselor to the Secretary)
directed Office of the Solicitor (SOL) attorney-advisors supporting the FOIA litigation to
withhold any documents that were sent to or from Bernhardt, or that referenced him in any way,
from upcoming FOIA releases related to the litigation. Relat’s direction applied to the upcoming
February 2019 document release, which initially included 1,481 pages that had been identified as
responsive to the original FOIA request.

In response to Relat’s direction, DOI staff removed 253 pages from the upcoming FOIA release,
including, among other things, weekly updates to the White House, updates to senior DOI
leaders, and draft press releases and reports. The remaining 1,228 pages were released in
mid-February 2019.

The U.S. Senate confirmed Bernhardt as Secretary of the Interior on April 11, 2019. In
December 2019, the DOI released most of the documents it had initially withheld from the
February 2019 FOIA release.

A. Relat Directed SOL Staff To Temporarily Withhold Documents From the February
   2019 FOIA Production

In early February 2019, Relat met with three SOL attorney-advisors who were assigned to assist
with the FOIA litigation. According to two of them, Relat told them during this meeting to take
all documents related to Bernhardt—addressed to him, sent from him, or referring to him—out of
the court-ordered document production related to the FOIA litigation. The third attorney recalled
receiving this direction as well, but did not remember when or whether it came from Relat.

One attorney wrote a note during the meeting: “Withhold everything to or from Bernhardt until
the end.” The attorney interpreted Relat’s direction to mean that they should release the
Bernhardt-related documents “later in the production process instead of February 2019.”

Another attorney recalled being told later that Relat’s direction to withhold Bernhardt-related
documents in the FOIA litigation was because Bernhardt was awaiting his confirmation hearing.
The attorney also remembered that this direction from Relat was to remain in place until after
Bernhardt’s confirmation. The attorney recalled being told the Bernhardt-related releases would
require more “scrutiny” from the DOI’s FOIA offices, and thus would be withheld until after
Bernhardt’s confirmation to avoid production delays.

The attorney-advisors confirmed that they eventually received directions to stop withholding
Bernhardt-related documents under the FOIA litigation, but all said they did not recall when they
were told this or by whom. In December 2019, the DOI released 215 pages of the documents that
had been withheld from the February 2019 FOIA litigation release.

B. Senior Career SOL Executive and FOIA Director Knew of Direction To Temporarily
   Withhold Documents

1. Edward Keable, Associate Solicitor for General Law

Edward Keable, who in his previous role as the DOI associate solicitor for general law was the
senior career attorney providing advice on FOIA issues to the DOI, told us he learned about
Relat’s direction to the SOL attorneys sometime after Relat met with them. Keable said he did
not recall personally discussing the direction with Relat or DOI Solicitor Daniel Jorjani. He said,
“My recollection is that this was not a ‘hold off and don’t produce anything’ direction so much
as a ‘let’s take a hard look at these documents and make appropriate determinations on what to
do with them, based on that careful review.’” According to Keable, he believed that was a
legitimate interest the DOI had in evaluating documents for release under FOIA.

When asked whether Relat’s direction to withhold Bernhardt-related documents from the
February 2019 FOIA litigation production was related to Bernhardt’s nomination, Keable
replied, “I wouldn’t read too much into the timeline. . . . I think it’s not enough to look at the
timeline to make a judgment about the appropriateness, and certainly the lawfulness, of the
matter in which the legal productions were managed.” He explained that the court-ordered
production was broad in scope, encompassing “hundreds of thousands of pages of material,” and
the DOI had discretion to decide when to release responsive documents as well as how many to
release. He said the releases were “consistent with the schedule obligations” of the court order,
and he had never been concerned that the DOI was not meeting its obligations.

2. Rachel Spector, Deputy Chief FOIA Officer and Director of the DOI’s FOIA Office

Rachel Spector told us she learned about Relat’s direction to the SOL attorneys sometime after it
happened. Spector said that she and Keable discussed Relat’s direction with both the SOL
attorneys and the FOIA officers and told them it was a “legitimate activity to scrutinize”
documents before release to “understand what might hit the press or [what] Congress might ask
David [Bernhardt] about . . . during the pendency of his nomination.” Spector said she told the

FOIA officers that as long at the DOI continued to meet its obligations for reviewing and
releasing responsive documents, choosing the order of document production was not a “violation
of the law.”

C. Relat Said He Directed Staff To Temporarily Withhold the Bernhardt-Related

In February 2019, Relat was the counselor to the Secretary. In that capacity, he advised the DOI
on FOIA releases. We asked Relat whether he recalled directing SOL attorneys and FOIA
officers in February 2019 to withhold Bernhardt-related documents until after Bernhardt’s
confirmation and, if so, who decided to give that direction and why. Relat replied:

       [M]y approach was that information that we have a legal obligation to disclose,
       . . . we disclose . . . and release. No questions asked, . . . but that sensitive
       information that we’re not legally obligated to disclose, we should treat more
       strategically in terms of when and how . . . it’s disclosed . . . this is an approach
       that I discussed with Dan Jorjani.

When asked whether he and Jorjani had considered documents related to Bernhardt to be
“sensitive information” due to the recent nomination, Relat stated, “I think that’s probably a fair
characterization.” Relat further explained, “[I]n instances where we were producing documents,
. . . under court order, to provide a certain number and type of document on . . . a monthly basis,
[the rationale was] that we should do so in a way that prioritizes documents that take into
account the need to strategically release that information.”

According to Relat, he did not know when the direction to withhold Bernhardt-related documents
was rescinded. He said he had moved into a different position at the DOI before Bernhardt’s
confirmation on April 11, 2019.

D. Jorjani Stated That He Thought Relat’s Direction Was Proper, and He Accepted
   Responsibility for It

Daniel Jorjani is the DOI’s solicitor (the DOI’s chief attorney and the Secretary’s principal legal
advisor). When asked if he was aware that Relat directed SOL attorneys and FOIA staff to
temporarily withhold the release of Bernhardt-related documents in the FOIA litigation, he said,
“It sounds quite reasonable to me,” and “That sounds perfectly consistent with how I would have
approached it.” He also said he did not specifically remember discussing the direction with Relat,
but he assumed that they had, “because knowing Hubbel [Relat] and his absolute focus on
compliance and squaring every corner, he probably wanted to make sure that everything he was
doing was fully compliant.” Jorjani went on to state, “Either I came up with the idea—and I
would like to think I’m smart enough to do that—or Hubbel [Relat], being proactive, said, ‘Oh,
can we do this compliantly and consistent with the court’s direction,’ and then ran it past me. . . .
It would be one of those two, I would think.”

Jorjani noted that complying with a court order is “more important than a confirmation process,”
and that consequences could have been serious if the DOI had not complied. He stressed,
however, that “to the extent you can comply with the law, comply with the court’s mandate, but
be aware of the broader surroundings, that strikes me as perfectly reasonable.” Jorjani said he
was not certain whether Bernhardt was aware of Relat’s direction.

Jorjani told us that, as the DOI’s top attorney, he owned the decision, not Relat.

E. The U.S. Department of Justice (DOJ) Attorney Believed the DOI Had Discretion To
   Choose the Order of FOIA Documents Released Under the Court Order

The DOJ attorney representing the Government in the FOIA litigation told us that the court order
requires the DOI to review 1,500 pages of potentially responsive records per month and to
release responsive documents based on that review. The attorney explained that a review was an
examination of documents “for whether or not those documents are responsive to the FOIA
request, and if so, whether or not they’re releasable under the FOIA or subject to one or more
FOIA exemptions.” According to the DOJ attorney, so long as the DOI reviewed at least
1,500 potentially responsive pages, it was complying with the court order without needing to
actually release 1,500 pages. The DOJ attorney noted hypothetically, however, that if an agency
were required to review 1,500 pages but released only 10 or 12 pages, the plaintiff in the case
would then have the right to request an explanation for the low number.

When we asked about the 253 pages withheld from the February 2019 FOIA release, the DOJ
attorney said the DOI could not permanently withhold documents from FOIA releases unless it
did so under an identified FOIA exemption. The attorney said, however, that the DOI would be
within its discretion to determine the order in which to release responsive documents.

The DOJ attorney also explained that if the plaintiff believed the DOI was not fully complying
with its FOIA obligations, the plaintiff should seek relief from the DOI before involving the
court. The attorney said that all of the DOI’s decisions pertaining to the FOIA litigation are
subject to the court’s review, but that “the court is only aware of the issues that are brought to it
by the parties” and the attorney was not aware of the withheld pages being brought to the court’s
attention. Therefore, the DOJ attorney said, “All I can say at this juncture is, [processing certain
pages at a later date] is not contrary to any court order . . . [or] to the FOIA statute or any binding
DC circuit case law that I am aware of.” The DOJ attorney concluded, “The bottom line is, I
believe, it is frankly within the agency’s discretion as to how it chooses to process . . . the subject
FOIA request.”

As noted above, the court order in the pending FOIA litigation requires the DOI “to review
1,500 pages of potentially responsive records per month and release the responsive documents.”
In light of (1) the statements from relevant officials, including the career official leading the
DOI’s FOIA program and the DOJ attorney representing the DOI in the FOIA litigation, that the
DOI had discretion under the court order to determine when to release the 253 pages it had
identified as responsive to the FOIA request, and (2) the fact that the DOI has since released
most of the documents that were initially withheld (the remaining 38 responsive pages remain
under review by the Government), we concluded that this matter did not warrant further
investigation. We note that whether the DOI complied with its obligations under the court order
is a matter for the court to decide if and when a party raises it.

We provided our report to the Chief of Staff for the Office of the Secretary for his information

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