The Justice Department declined to take a firm stance on whether the Census Bureau could be required to disclose confidential individual responses, newly disclosed emails show, raising alarm among advocacy groups already deeply concerned about the Trump administration’s motivation for adding a citizenship question to the 2020 census.
Civil rights, immigrant and other advocacy groups are fighting the addition of the question to the census. They say immigrants and other groups won’t respond to the decennial survey for fear of revealing their immigration status to the Trump administration.
The Census Bureau has sought to assuage those concerns in part by noting that federal law strictly and clearly prohibits the bureau from sharing individual information it collects. The bureau only publishes aggregated information, and the law requires that it only be used for statistical purposes.
But in a recently disclosed June email, a top aide to John Gore, then the acting head of the Justice Department’s Civil Rights Division, advised him to give an ambiguous answer to a legal question from a member of Congress about protecting census data.
In 2010, the Justice Department’s Office Of Legal Counsel, or OLC, authored a memo saying that the Patriot Act did not compel the secretary of commerce to give law enforcement access to census answers that would otherwise be kept confidential. Rep. Jimmy Gomez (D-Calif.) asked Gore if the DOJ still agreed with that opinion and whether any federal law could require the Census Bureau to turn over confidential census data to law enforcement.
J. Benjamin Aguiñaga, then Gore’s chief of staff, advised Gore to answer the question vaguely.
“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,” Aguiñaga wrote. “So I’ve just said that the Department will abide by all laws requiring confidentiality.”
The email was first reported by NPR and was made public as part of an ongoing federal lawsuit in California challenging the addition of the citizenship question to the census. Kelly Laco, a Justice Department spokeswoman, declined to comment on the exchange. A spokesman for the Department of Commerce did not immediately respond to a request for comment.
Sasha Samberg-Champion, a former senior attorney in the Civil Rights Division’s appellate section, cautioned against reading the email to Gore as an indication of whether the Trump administration would ultimately revisit the OLC opinion.
“If OLC actually revisits the 2010 opinion, that will be a big deal,” he said 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.”
It makes sense that Gore would give a noncommittal answer on the question because it was outside the scope of his division, said Justin Levitt, a former Justice Department official who is now a professor at Loyola Law School in Los Angeles. Still, he said, “a different Administration might have thought it more important to tuck in more assurances that there’s been no change.”
OLC clearly interpreted federal law to require broad protections for the confidentiality of census data, said Terri Ann Lowenthal, a census consultant who formerly worked as staff director of the House Census and Population Subcommittee. It’s alarming the Justice Department may see wiggle room, she said.
“This should have been a slam-dunk no-brainer for the Justice Department to reaffirm that interpretation. The fact that it didn’t raises significant concerns about this administration’s motives for adding a citizenship question,” said Lowenthal, who has been retained as an expert in a separate federal suit in Maryland challenging the addition of a citizenship question.
“This should have been a slam-dunk no-brainer for the Justice Department to reaffirm that interpretation. The fact that it didn’t raises significant concerns about this administration’s motives for adding a citizenship question.”
Confidentiality is “sacrosanct” to the census, said Arturo Vargas, the CEO of the National Association of Latino Elected and Appointed Officials Educational Fund.
“Any effort by the Trump administration or the Department of Justice to try and crack that confidentiality would make the Census Bureau’s job simply impossible,” said Vargas, who serves on the Census Bureau’s advisory commission on racial, ethnic and other populations and opposes adding the citizenship question. “I think it just speaks to what probably are the motivations for trying to add the citizenship question to begin with and trying to undermine the census bureau’s mission.”
Lowenthal said assurances of confidentiality were crucial to the census amid public mistrust and concern about how officials might use personal information. Getting as many people as possible to respond to the census is critical because census data is used to determine how billions of dollars in federal funds are allocated and how electoral districts get drawn.
“Any suggestion that census responses are not protected by an impenetrable wall from use by other government agencies could threaten the entire enumeration,” Lowenthal said. “The guarantee of ironclad confidentiality of personal census responses is a cornerstone of a successful census. If that cornerstone is removed, the entire enterprise could come falling down.”
The Trump administration has maintained it can get an accurate census count despite concerns over the citizenship question. John Abowd, the Census Bureau’s chief scientist, testified in a federal trial last week that the bureau’s extensive plans to follow up with people who don’t respond to the census would ensure as accurate a tally as possible.
In the 1940s, the U.S. government used Census Bureau data to target Japanese-Americans for incarceration. The episode, which the bureau apologized for decades later, prompted it to strengthen its confidentiality protections.
The 2010 OLC memo came just ahead of the nation’s first decennial census following the terrorist attacks of Sept. 11, 2001. Lowenthal said there was concern that the government could use some of the provisions of the Patriot Act to obtain information collected through the census, but the memo makes it clear that the law could not be used in that way. In the memo, OLC says the Justice Department’s National Security Division believed the secretary of commerce could be required to produce confidential census information under Section 215 of the law, but OLC did not agree, concluding the census information was protected.
“The guarantee of ironclad confidentiality of personal census responses is a cornerstone of a successful census. If that cornerstone is removed, the entire enterprise could come falling down.”
The email to Gore was “really bad,” said John Thompson, who served as director of the Census Bureau from 2013-2017 and worked there for decades before that.
“How can the Census Bureau promise respondents that their information will be safe,” Thompson, who served as an expert witness for the plaintiffs in the New York case, asked in an email.
Leaving the door open to not protecting data would be strongly at odds with the position of the Census Bureau. In May, Ron Jarmin, the bureau’s acting director, wrote a blog post unequivocally saying that individual census responses are protected from being shared with law enforcement.
“I know that one important concern is how the census data will be used and there is often a question of whether the Census Bureau shares information with law enforcement agencies like the FBI, ICE or even the local police,” Jarmin wrote. “I assure you that this does not happen and it is prohibited by Title 13. Title 13 makes it very clear that the data we collect can only be used for statistical purposes and cannot be shared for nonstatistical purposes — including law enforcement.”
In light of the email, the Trump administration should provide new assurances about the confidentiality of census responses, said Vanita Gupta, the former head of the Civil Rights Division under President Barack Obama and current president and CEO of the Leadership Conference Education Fund.
“There is no debate about whether to keep census information protected — census confidentiality is protected by law. The Justice Department’s failure to confirm that guarantee is cause for great alarm,” Gupta said in a statement. “With the count starting in little more than a year, the administration must affirm the strict confidentiality of census information to preserve public confidence in this Constitutionally required count.”