We scored a huge Freedom of Information Act win recently: documents related to President Donald Trump’s decision to withhold military aid from Ukraine, an issue at the center of the impeachment inquiry. On Dec. 12, the Center for Public Integrity received 146 pages of documents from the Department of Defense by order of federal Judge Colleen Kollar-Kotley as a result of a FOIA lawsuit. But the documents were heavily redacted, prompting Public Integrity to return to court and fight.
We asked our audience if they had any questions about what the documents say and what they mean. Here are your questions, answered.
Q: Who provided the documents and who had responsibility for the redactions? What was the legal basis for why they were redacted?
The documents were provided by the Defense Department, and they in part contain emails between officials at the Defense Department and the White House Office of Management and Budget. The government can redact information for a number of reasons. An attorney for the Defense Department explained the redactions by citing three exemptions in the law designed to protect private personal information, “sensitive information of foreign governments” and “privileged” records generated during the “deliberative process.”
“Deliberative” material generally offers advice or makes an argument about a potential decision or action that a government agency is considering.
Q: Can you appeal?
Yes. We challenged the redactions, saying that at least some of the material appears to be factual — not deliberative — and should be released.
Q: When will it be public?
It’s hard to say. Kollar-Kotelly responded in a decision late last Friday that ordered the government and Public Integrity to confer by Tuesday for setting a timetable for judicial review of the redacted passages. On Wednesday, the judge approved a schedule for written arguments, which will begin Jan. 31. After the parties complete their written arguments, the judge will decide whether the redactions were appropriate under the law.
Q: Given the sensitive nature of the materials, how much can be expected?
Again, it’s hard to say. But Public Integrity is scheduled to receive additional documents on Friday, per the judge’s order. These documents may be redacted in similar fashion to the ones we received last week — or not.
Q: We know OMB played a major role in withholding aid to Ukraine. Is there any information about OMB that isn’t redacted?
The Trump administration has blacked out substantive exchanges between officials at the Defense Department and OMB. However, we know there was a lengthy email exchange between Elaine McCusker, deputy comptroller at the Defense Department, and Michael Duffey, a political appointee and the associate director at OMB, and OMB General Counsel Mark Paoletta. McCusker emailed Duffey saying, “the funds go into the system today to initiate transactions and obligate,” which set off more emails from Duffey and Paoletta. The emails carried on to the next day when McCusker suggested they continue the conversation on the phone. We don’t know the specifics of those conversations.
Q: How much could this information help the impeachment case?
It’s hard to predict how our work might affect impeachment proceedings, which now move to the U.S. Senate following the U.S. House’s adoption Wednesday of two articles of impeachment. On Dec. 12, Rep. Veronica Escobar, D-Texas, requested that her House Judiciary Committee colleagues add the documents we won and our related news article to the official record for the impeachment inquiry. (The Judiciary Committee heeded her request.)
Do you have any more questions? Reach out firstname.lastname@example.org.
Kristine Villanueva is the audience engagement editor at the Center for Public Integrity, a nonprofit newsroom that investigates betrayals of public trust. She regularly interacts with Public Integrity’s readers via social media and through the Watchdog newsletter.