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DOI withheld Bernhardt records during confirmation, IG says

Staff at the department’s legal office and others who process Freedom of Information Act requests were told to ‘temporarily withhold documents related to Bernhardt’

Secretary of the Interior David Bernhardt at a Senate Energy and Natural Resources Committee budget hearing in March.
Secretary of the Interior David Bernhardt at a Senate Energy and Natural Resources Committee budget hearing in March. (Bill Clark/CQ Roll Call file photo)

Political officials at the Interior Department deliberately held back “sensitive” records about Interior Secretary David Bernhardt during his confirmation process, the department’s internal watchdog said Tuesday.

Bernhardt had his confirmation hearing in March 2019 and the Senate confirmed him by a 56-41 vote in April.

But in February 2019, shortly after Bernhardt was nominated by President Donald Trump to be secretary, Hubbel Relat, an advisor to Bernhardt, directed staff at the department’s legal office and other DOI staffers who process Freedom of Information Act requests to “temporarily withhold documents related to Bernhardt” that were being released as part of a lawsuit, the Interior Department’s inspector general said in a report released Tuesday.

DOI withheld 253 pages from the plaintiff’s request before releasing “most” of them in December, months after Bernhardt’s confirmation, the IG said. The report does not identify which lawsuit or records, and the inspector general closed its investigation.

During the Trump administration, Interior and other federal agencies have implemented more aggressive screening procedures for FOIA requests, drawing ire from outside watchdog groups.

As CQ Roll Call first reported in May 2019, Interior has used an “awareness review” policy to allow political officials at the department to screen records that may be released under records requests and pluck out items for release, a practice FOIA experts called troubling and rare.

Bernhardt defended the awareness review policy before the Senate, and Interior defended its activity in a statement after the IG report was released.

“The report demonstrates that the Department’s actions were consistent with its legal, ethics, and FOIA obligations, including the applicable court order,” a DOI spokesman said Tuesday.

Sen. Ron Wyden, D-Ore., and Rep. Raúl M. Grijalva, D-Ariz., urged the IG to investigate Interior’s awareness review practice and upbraided the department in a joint statement Tuesday, accusing it of a “coverup” to insulate Bernhardt.

“Political appointees at the agency have put their ideologically-based personal interests over the interests of the American people, violating the public trust upon which the Department of the Interior is based,” the pair said. “Officials at Interior are now on the record admitting what we suspected all along: they orchestrated a cover-up to protect Secretary Bernhardt during his confirmation, and all but lied to Congress about it.”

The report states that in early February 2019, Relat met with three attorneys from the department’s solicitor’s office “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 report says the third official could not remember if that direction came from Relat but confirmed the direction was made.

Interior Solicitor Daniel Jorjani told the IG investigators he thought Relat’s action was proper under FOIA and that he was ultimately responsible for the decision to delay the release of public records.

At his confirmation in the summer of 2019 before the Senate Energy and Natural Resources committee, Jorjani told members an awareness review process did not exist at the department.

FOIA requests submitted by CQ Roll Call, other news-gathering organizations and environmental groups such as Earthjustice, as well as the report released today, show the opposite: that such a policy did exist.

Wyden and Grijalva said Jorjani’s statements to Congress “were not truthful” and demanded the Justice Department investigate if the solicitor perjured himself.

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