Bernhardt defends Interior public records review policy

Bernhardt said the so-called ‘awareness review’ policy was legal and ‘very long-standing in the department’

Interior Secretary David Bernhardt testifies during a Senate Appropriations on Interior, Environment, and Related Agencies Subcommittee hearing on the FY2020 budget proposal for the Interior Department in Dirksen Building on Wednesday, May 22, 2019. Bernhardt said to lawmakers the so-called “awareness review” policy was legal. (Tom Williams/CQ Roll Call)

Interior Secretary David Bernhardt defended on Wednesday the agency’s policy allowing politically appointed officials to review and comment on public records requests that relate to them.

Appearing before a Senate appropriations subcommittee to testify about his department’s budget, Bernhardt said the so-called “awareness review” policy was legal.

“It’s a process that’s very long-standing in the department,” Bernhardt told the committee. “We definitely formalized it,” he said. “It’s completely legal.”

[Interior Department policy let political appointees review FOIA requests]

As CQ Roll Call reported Wednesday, Interior has through this policy for about a year let political staffers review documents before they are released to the public under Freedom of Information Act requests.

First Amendment experts say the policy could trigger lawsuits and break open-records laws. An office within the National Park Service warned in a December memo that the policy was “preventing” it from meeting its legal deadlines under FOIA.

“Such delays leave the NPS open to potential litigation,” the memo reads in part.

Citing CQ Roll Call reporting, Sen. Patrick J. Leahy, D-Vt., said the practice “raises real questions of illegality” and asked if there was legal justification to undergird it.

Bernhardt replied the policy was on safe legal ground, but said he was troubled it may delay the completion of FOIA requests.

“What is troubling to me when I read that article this morning was the concept that it would be slowing the reviews down, because that’s not what the policy says,” he said.

Leahy said he was worried less about delays than about changes to records released under FOIA.

“I’m concerned not so much slowing down but changing so it’s not an honest answer,” Leahy said.

Bernhardt replied, “If it’s responsive it’s going out.”

Interior formalized the awareness review policy in May 2018 without a public announcement, and in February expanded its application to records related to officials who left the department, including former Interior Secretary Ryan Zinke.

“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.

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