Acting Interior Secretary David Bernhardt will testify in front of senators for his confirmation hearing ahead of a vote that could make him the next secretary of one of the largest departments in the federal government.
Bernhardt’s hearing comes at a time when he and other officials at the department are facing scrutiny from Congress and advocacy groups about an overall lack of transparency with the public they are appointed to serve.
Bernhardt was confirmed as deputy secretary by the Senate in July 2017 and took over as acting secretary when former Secretary Ryan Zinke resigned at the end of 2018. The Interior Department oversees 20% of the country’s land, employs 700,000 people and manages a budget of more than $22 billion.
In the past two weeks, three environmental advocacy groups have filed FOIA lawsuits regarding their inability to receive information from the Interior Department. The Sierra Club filed a lawsuit on March 22 over the department’s failure to produce any information in response to multiple requests seeking correspondence between external groups and schedulers, or “special assistant” secretaries, in the secretary’s office.
The Southern Environmental Law Center and Defenders of Wildlife also filed a lawsuit on March 20 after the department failed to respond to their request for information about how the US Fish and Wildlife Service has changed parts of the Endangered Species Act. Their suit asks the court for an injunction that would force the department to respond to FOIA requests in a more timely and transparent manner.
Sierra Club requested the information from schedulers to get a better understanding of Bernhardt’s calendars and they are not the only ones trying to get them.
The House Natural Resources Committee requested “all calendars and schedules” belonging to Bernhardt on Feb. 7. The committee received a 26,792 pages in response on Monday, the committee’s spokesperson Adam Sarvana said. They initially asked for a response by Feb. 21.
During a House Oversight Committee hearing on March 13, Interior’s acting Deputy Chief FOIA Officer Rachel Spector acknowledged that there had been some problems with releasing a complete version of Bernhardt’s calendars.
When House Oversight Chairman Rep. Elijah Cummings asked Spector about events being deleted from Bernhardt’s calendars, Spector replied, “I have some familiarity with the issue that you are raising and understand that the solicitor’s office in the department is working with the records office in the Department to determine what’s occurred there.”
When Bernhardt was facing the Senate for his first confirmation hearing as deputy secretary, he was largely criticized by advocacy groups and Democrats for his former lobbying ties. From 2011 on, Bernhardt worked at the DC law firm Brownstein Hyatt Farber Schreck LLP, leading their natural resources law division. The law firm regularly represents California’s Westlands Water District, the largest water district in the US.
When he joined the Department in 2017, he signed an ethics agreement where he agreed to recuse himself for a period of time from certain dealings with his former clients. However, a CNN investigation found that, since joining the Interior Department, Bernhardt’s former clients have benefited from policy decisions 15 times.
A spokesperson for Bernhardt said in a statement that he has fully complied with his recusal agreements, and some advocates for the energy industry argue that such regulatory rollbacks are part of what Trump was elected to do.
Bernhardt’s inability to produce complete calendars heightens suspicion among advocacy groups that he might be meeting with former clients.
“Acting Secretary Bernhardt is up for confirmation, and information about his ties, especially any closed-door communications with industry and industry’s efforts to influence and, in some cases, dictate policy, is a critical piece of information,” Sierra Club attorney Joshua Smith said.
The House Natural Resources Committee has also requested information about how the department is handling responses to FOIA requests more generally.
On Dec. 28, during a federal government shutdown that affected Interior, the department announced a proposed rule that would make significant changes to how it responds to FOIA requests. The new rule would allow the department to increase response times for certain requests, limit the number of responses by certain individuals or groups, and deny certain requests if they require “an unreasonably burdensome search,” according to the rule.
The proposal says it is designed to address “exponential increases in requests and litigation” under the Freedom of Information Act in the Trump administration.
“Our goal is to operate the government in the most lawful, ethical, and efficient manner to best serve the American taxpayer,” Interior spokeswoman Faith Vander Voort said.
But 130 groups signed a 63-page objection to the proposed rule change. Their objection called the proposal illegal and claimed that it would provide “the agency with unlimited discretion to deny FOIA requests.”
The House Natural Resources Committee has not received information from the department about this request yet, but they requested information by April 3.
During a House Natural Resources Committee hearing about Interior’s budget on March 27, Chairman Raul Grijalva, Democrat of Arizona, showed Interior Deputy Assistant Secretary Scott Cameron an email from an Interior official directing other Interior officials not to respond to senators or Grijalva’s requests until further notice. Cameron denied ever seeing the email.
The SELC and Defenders of Wildlife suit focuses on the Endangered Species Act, which is overseen by the US Fish and Wildlife Services within Interior. In September, an internal memo was sent to US Fish and Wildlife Service Ecological Services offices outlining how employees can provide less information when responding to FOIA requests about the Endangered Species Act and other policies the office manages.
“The Department of the Interior, in a trend that we’ve seen throughout this administration, is creating a culture of secrecy around decisions they know the public would never support,” Sam Evans, SELC’s National Forests and Parks Program Leader, said in a statement.