Newly Released DOJ Email Prompts Questions About Census Confidentiality

WASHINGTON, DC - SEPTEMBER 17: Acting Assistant Attorney General for Civil Rights John Gore speaks at the Justice Department September 17, 2018 in Washington, DC. Attorney General Jeff Sessions spoke about Department... WASHINGTON, DC - SEPTEMBER 17: Acting Assistant Attorney General for Civil Rights John Gore speaks at the Justice Department September 17, 2018 in Washington, DC. Attorney General Jeff Sessions spoke about Department of Justice efforts to support free speech on college campuses at the event. (Photo by Aaron P. Bernstein/Getty Images) MORE LESS
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November 20, 2018 10:43 a.m.

Trump administration Justice Department officials declined to affirm a 2010 department memo reenforcing the confidentiality standards of the decennial census, newly surfaced emails reveal.

John Gore (pictured) — then the acting head of the civil rights division, who was involved in the move to request a citizenship question on the 2020 survey — was advised by his chief of staff not to say directly whether the Justice Department agreed with the memo, which said that nothing in the Patriot Act compelled that otherwise confidential information obtained from the census be handed over to law enforcement.

“I don’t think we want to say too much there, in case the issues addressed in the OLC opinion or related issues come up later for renewed debate,” Gore’s chief of staff, Ben Aguiñaga, wrote Gore in a June 2018 email. “So I’ve just said that the Department will abide by all laws requiring confidentiality.”

The email exchange was about draft responses to congressional inquiries to Gore, with the specific question about the 2010 memo coming from Rep. Jimmy Gomez (D-CA). It was made public in a court filing in a lawsuit in California challenging the addition of a citizenship question to the census and first reported by NPR.

The 2010 opinion was written ahead of the first decennial census to be conducted after the Sept. 11, 2001 terrorist attacks, amid concerns that there would be attempts to use the Patriot Act to force the Commerce Department to produce survey answers to law enforcement, Huffington Post reported. The Justice Department’s Office of Legal Counsel concluded in the opinion that the Commerce Secretary is not required by the law “to disclose census information to federal law enforcement or national security officers where such disclosure would otherwise be prohibited by the Census.”

While the Census Bureau under President Trump has continued to to stress that federal laws protecting the confidentiality of the census will be followed, the newly released email exchange shows the Justice Department taking an intentionally vague approach to answering whether the Patriot Act can be used to force the disclose of the data to law enforcement.

“No one should have to fear responding to the census questionnaire or to a citizenship question, if in fact it is included. To that end, the Department is committed to abiding by all laws protecting the confidentiality and nondisclosure of such responses,” Gore said in the answer submitted to Congress.

Aguiñaga has since left the Justice Department to clerk for Supreme Court Justice Samuel Alito. Aguiñaga is recused from the case the Supreme Court will hear next year challenging the addition of a citizenship question to the 2020 survey, a court spokesperson told NPR.

Gomez, in a statement to NPR, said the emails showed the Trump administration was “using every tool at their disposal to vilify our immigrant communities, including the 2020 census.”

However, former Justice Department officials cautioned against reading too much into the exchange, the Huffington Post reported.

“If OLC actually revisits the 2010 opinion, that will be a big deal,” Sasha Samberg-Champion, who served in the DOJ Civil Rights Division, told Huffington Post in an email. “I’m hesitant to do much tea leaf reading regarding the Civil Rights Division declining to signal DOJ’s intentions one or the other here. What I will say is that it was presented with the opportunity to be reassuring and declined to provide such reassurances.”

Read the court filing below:

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