January 19, 2018
This is a Transparency Win; but Redactions Obscure What Really Happened with Travel Ban
WASHINGTON – Open the Government (OTG) and the Project on Government Oversight (POGO) applauded the release today of a report by the Homeland Security Administration’s Inspector General that critiqued the Trump Administration’s handling of its controversial travel ban that caused chaos and protests across the nation in January 2017. The release of the redacted report came just two days after OTG and POGO filed an appeal after their Freedom of Information Act (FOIA) request to access the report it was blocked.
“This is a huge win for transparency and for the public’s right to know about how the travel ban was implemented on the ground,” said Open the Government’s Executive Director Lisa Rosenberg. “The release of the report is a testament to the pressure from the public and Congress to ensure accountability by bringing the full truth into the light of day. We are continuing to call on the administration to release information still being withheld on this policy, and account for the continued secrecy related to this report.”
A day after filing the appeal, the DHS OIG quietly posted a redacted version of the report on its website, providing no explanation for the redactions or for the initial FOI denial. The DHS also failed to indicate the justification for the withholdings, in apparent violation of the FOIA.
“We’re pleased that this watchdog report is finally is seeing the light of day, but remain concerned that the Department’s redactions may go too far,” said Danielle Brian, executive director at the Project On Government Oversight. “An Inspector General shouldn’t have to rely on congressional pressure and media attention to publicly release its unclassified findings. We’ll be closely watching DHS and other agencies for future attempts to muzzle their watchdogs with overreaching secrecy claims.”
In response to our initial FOIA request, the DHS OIG sent a letter on December 28th, 2017, denying full access to the report, claiming the report addressed matters that were ongoing, and invoked the discretionary deliberative process privilege. In response to the IG’s decision, OTG and POGO filed an appeal arguing that the report in question is final and therefore is inherently post-decisional and cannot be considered either pre-decisional or deliberative, no matter how many ongoing matters it may become a part of after completion.
Our appeal asked for another review of the report, immediate processing and urgent release of the full report, including all conclusions regarding the implementation of President Trump’s travel ban.
The DHS OIG apparently agreed with our argument, quietly releasing a public version of the report the day after we filed our appeal.
The redacted version released yesterday includes some of the important findings, notably that the DHS was “caught by surprise,” by the signing of the EO, and that the main implementer of the EO’s provisions – Customs and Border Protection (CBP) – had “practically no advance notice that the order would issue, or that it would be effective upon signature. Nor did it know exactly what the EO would contain.”
Importantly, the report concludes CBP violated two separate court orders that enjoined CBP from preventing affected travelers from boarding aircraft bound for the United States.
These conclusions were described by the former Inspector General John Roth in a November 20th letter sent to Congress, in which he warned that the Department was going to invoke the “deliberative process privilege” to keep the content of the report secret. Roth’s warnings proved to be accurate, and the DHS is still withholding information in the report about potential violations of court orders and other abuses associated with the implementation of the EO. The DHS must now respond to our appeal, review the redactions made, and provide its justification for the continued secrecy in accordance with the FOIA.
Open the Government is an inclusive, nonpartisan coalition that works to strengthen our democracy and empower the public by advancing policies that create a more open, accountable, and responsive government.
The Project On Government Oversight is a nonpartisan independent government watchdog whose investigations into corruption, misconduct, and conflicts of interest achieve a more effective, accountable, and ethical federal government.