Critics say Interior's top lawyer came 'close to perjury' during Hill testimony

Critics say Interior's top lawyer came 'close to perjury' during Hill testimony
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A green group is requesting an investigation of the Department of the Interior’s top lawyer, arguing he downplayed his role in the department’s controversial public records review process while testifying in May.

Daniel Jorjani, the principal deputy solicitor at Interior, told senators he did not regularly review documents requested through the Freedom of Information Act (FOIA) before their release.

But a batch of documents released through a public records request from EarthJustice shows the confusion that stemmed from the policy and how Jorjani was involved in processing the requests.

“He misled Congress and stepped very close to perjury,” said Aaron Weiss, deputy director at the Center for Western Priorities, arguing that Jorjani held back information from lawmakers who inquired about the public record process.  

Interior has long been criticized for its policy of allowing political appointees to review FOIA requests about them or their work before being released to reporters and other requesters, including environmental groups.

In addition to his role in the solicitor’s office, Jorjani is also the department’s chief FOIA officer and employees were directed to copy him in their discussions of public records requests.

“It doesn’t pass the smell test to ask him to be sent all these things so he can not look at them,” Weiss said. “There’s clear documentation showing he has been looped in the entire time, so you can't deny that to the Senate in writing -- that’s just lying.”

Jorjani was recently nominated to be the solicitor for Interior, a post that has remained vacant under the Trump administration. Several Democrats have said they will not support his nomination in part because of his lack of response to questions on Interior’s public records policy.

“The Interior Department under President TrumpDonald John TrumpJimmy Carter: 'I hope there's an age limit' on presidency White House fires DHS general counsel: report Trump to cap California trip with visit to the border MORE has treated information as a political weapon, regardless of what our laws require or what democracy demands of its leaders,” said Rep. Raul Grijalva (D-A.Z.) chair of the House Natural Resources, said in a statement. “[Interior’s] top lawyer shouldn’t sign off on it.”

Molly Block, a department spokeswoman, said “the process ensures that matters of concern to Department leadership are flagged for awareness. This also allows a FOIA officer to receive contextual information in order to help them better apply the relevant legal standards.”

EarthJustice requested an investigation of Interior’s public records review process from the department's Office of Inspector General (OIG), arguing it imposes barriers and delays in getting information.

Records requested by EarthJustice and included in their complaint to the OIG also answer other questions Jorjani didn’t answer in his testimony to Congress.

Sen. Ron WydenRonald (Ron) Lee WydenDemocrats press for action on election security Interior gains new watchdog On The Money: NY prosecutors subpoena eight years of Trump tax returns | Senators struggle to get spending bills off ground as shutdown looms | Progressive tax-the-rich push gains momentum | Trump faces dwindling leverage with China MORE (D-Ore.) pressed Jorjani to disclose how many times Interior’s record review process caused the department to miss litigation deadlines.

In a written response to Wyden, Jorjani said he could not comment on individual litigation matters.

But a review of documents released to EarthJustice suggests there are at least three instances where Interior did not meet court deadlines because they were waiting for political appointees to review FOIA requests.

In a meeting in late May to discuss Jorjani’s nomination, Senate Natural Resources Committee Ranking Member Joe ManchinJoseph (Joe) ManchinKavanaugh impeachment push hits Capitol buzz saw Democrats seize Senate floor to protest gun inaction: 'Put up or shut up' Senate Democrats to hold the floor to protest inaction on gun violence MORE (D-W.V.) said Wyden’s questions “lacked the response it deserved” from Jorjani.

“The solicitor must uphold the law above all else, above party politics and ideology. That was not the sense I got,” about Jorjani, Manchin said at the time.

Beck, the Interior spokeswoman, maintained that Jorjani’s role does not often require reviewing FOIA requests.

“He 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.

Other emails released from EarthJustice show Interior’s career staff were confused by how to process FOIA requests once political appointees were involved.  

“What response is needed for us to release the documents? For example, several people responded by saying, ‘Thanks for sharing,’ or just ‘Thank you.’ Is that enough? Can I presume that we can release the records? Do I need to wait for all the people on the email chain to respond a certain way?” asked Clarice Julka, a FOIA public liaison for Interior wrote in April of 2018. “Right now, I’m holding up releases because I’m not sure what response I need to have before I can release. Should I continue to wait on these releases or should I go ahead?”  

Later that month she expressed annoyance at delays and other issues stemming from political appointee review.

“It’s very confusing and I feel that we shouldn’t be responsible to read your or their minds about how to handle this since from the past, it’s been very clear that my office will be blamed for anything deemed to be a mistake,” she said.

Interior policy notes that if political appointees do not respond when notified about a FOIA request, it will be considered a green light to proceed with the request.

Despite that, numerous emails between FOIA staffers and other employees at Interior show employees were often seeking explicit approval before fulfilling FOIA requests.

But one email shows Interior Sec. David Bernhardt was hesitant to put his own approval in writing.

An email  from a FOIA officer to Julka references a conversation with a woman listed only as Rachel.

“She met with Bernhardt this morning to discuss an upcoming release for litigation that is supposed to go out this Friday, April 27. She indicated that Bernhardt said it could go out then, but she also indicated he will not be putting this affirmation into writing and that if he said it could go out, we do not need to hear from anyone else. I explained that per my most recent understanding, we all need approvals in writing from both the comms office and himself. Rachel told me that was not going to happen this time,” the email said.  

Weiss said such a move lacks transparency.

“It begs the question of what else David Bernhardt doesn’t want to put in writing?” he said.