DHS Delays in Revealing Potential Conflicts of Interest Prompts Legal Action

DHS Delays in Revealing Potential Conflicts of Interest Prompts Legal Action

  • May 27, 2022

Agency failure to properly respond to transparency requests adds to controversies

Today, Protect the Public’s Trust announced a federal transparency lawsuit against the Department of Homeland Security (DHS) after repeated delays from the agency regarding a nearly year-old Freedom of Information Act (FOIA) request.

In June 2021, PPT submitted FOIA requests to several agencies, including DHS, seeking information about waivers and exemptions to ethics obligations granted to political appointees. The records gained from this request will help the public understand which high-level DHS officials have potential conflicts of interest, how the Department is addressing those conflicts, and whether officials are following the rules. These questions are particularly important at a department like DHS, which has a large budget and a massive policy portfolio.

According to information available from the Office of Government Ethics, two DHS employees were granted waivers to the Biden Ethics Pledge, each of which allowed a high-ranking DHS appointee to work on immigration matters they otherwise would have been barred from participating in. Immigration is one of a number of issues that has generated controversy at DHS and for Secretary Alejandro Mayorkas. The waivers available via OGE constitute a small subset of the exemptions available to political appointees and, without receiving the records from DHS this FOIA request seeks, the public has no way of knowing the details of any of the other types of waivers that DHS may have awarded. As the ethical restrictions are time-limited, prompt disclosure of exemptions to the restrictions is vital as the public deserves to be aware of these exemptions while they are still in force.

In response to an inquiry from PPT about the FOIA, DHS indicated in November that records could be available in three to four months. More than six months later, DHS told PPT it would likely be two more months adding, “there may be additional delays.” DHS’s treatment of this FOIA stands in stark contrast to Attorney General Merrick Garland’s declaration, “Timely disclosure of records is also essential to the core purpose of FOIA.”

“Attorney General Garland’s memo to agency heads reinforcing the importance of promptly and properly responding to Freedom of Information Act requests doesn’t appear to have sunk in at DHS,” stated Michael Chamberlain, Director of Protect the Public’s Trust. “For an agency that has been at the center of so many controversies, one might think Secretary Mayorkas’s agency would try to at least fulfill their obligations in an area they can control, such as responding to FOIA requests. Unfortunately, the experience of Protect the Public’s Trust seems to indicate that is not the case.”