The Department of Homeland Security (DHS) has rejected a request by the conservative Heritage Foundation to expedite a Freedom of Information Act (FOIA) request by the think tank for the release of the immigration records of the Duke of Sussex.
DHS Senior Director Jimmy Wolfrey wrote in a letter that “To the extent records exist, this office does not find a public interest in disclosure sufficient to override the subject’s privacy interests,” according to the New York Post.
The Heritage Foundation has argued that Prince Harry’s past admissions of drug use, such as in his memoir Spare, make him ineligible for a US visa.
DHS notified the think tank on Tuesday, one week after being ordered to respond to the request by DC federal court Judge Carl Nichols.
Heritage lawyer Samuel Dewey told the paper that the reply from DHS “shows an appalling lack of transparency by the Biden Administration”.
“The Department of Homeland Security’s efforts to stonewall the Heritage Foundation’s Freedom of Information request are unacceptable, and we will be contesting their position,” he added. “We expected to have to fight every step of this case in federal court and will continue to press for transparency and accountability for the American people.”
The director of the Heritage Foundation’s Oversight Project, Mike Howell, submitted the request on 8 March, requesting records from DHS, Customs and Border Protection, US Citizenship and Immigration Services, and the Office of Biometric Identity Management.
Ahead of the hearing on 6 June, only DHS had yet to respond. The other three agencies rejected the requests.
The Heritage Foundation’s request for a preliminary injunction was withdrawn as moot on 14 June following the reply from DHS.
“We can neither confirm nor deny the existence of any records relating to your request under Section 3, pursuant to FOIA Exemptions (b)(6) and (b)(7)(C). Exemption (b)(6) exempts from disclosure personnel or medical files and similar files the release of which would cause a clearly unwarranted invasion of personal privacy,” DHS wrote, according to Inner City Press.
“The privacy interests of the individual in the records you have requested outweigh any minimal public interest in disclosure of the information. Exemption (b)(7)(C) excludes records or information compiled for law enforcement purposes, but only to the extent that the production of such materials could reasonably be expected to constitute an unwarranted invasion of personal privacy,” the agency added. “To the extent records exist, this office does not find a public interest in disclosure sufficient to override the subject’s privacy interests.”
Judge Nichols is now set to decide how to proceed with the case.
At the hearing last week, the department argued that an injunction to force DHS to expedite the request shouldn’t go ahead as the foundation hasn’t shown how they will suffer irreparable harm if the information isn’t shared.
Representing the government, Assistant US Attorney John Bardo argued on 6 June that it wouldn’t make a difference when the request was handled, even if the response came a year from now.
The Heritage Foundation said the interest in Prince Harry’s immigration status would decrease over time.
Large parts of the hearing centred on the amount of media attention on Prince Harry and his supposed drug use, which some legal experts say would have barred him from entering the US.
The Heritage Foundation has suggested that the federal government may have been engaging in favouritism and may have turned a blind eye to actions, which may have caused the authorities to reject the visa application. The foundation also argued that the public should be allowed to see Prince Harry’s immigration records to see if he may have provided untruthful answers.
Mr Bardo argued that sufficient coverage from mainstream US media was required for a request to be expedited. He mentioned outlets such as The New York Times, The Washington Post, The Wall Street Journal and the TV networks.
Heritage lawyer Samuel Dewey meanwhile argued in front of Judge Carl Nichols that DHS regulations simply say “media” without specifying where the outlets are based.
Mr Dewey told The Independent after the hearing that “you can’t define mainstream. That’s almost absurd in this context. So as a policy matter, that is a very alarming statement for the press and for transparency for the administration”.
Nile Gardiner, the director of the Margaret Thatcher Center for Freedom at the foundation, added: “I do find it astonishing that the British press is referenced as obscure.”
“These are big publications with a wide global reach including millions of Americans who read these newspapers and I find it absolutely astonishing this description today [that there’s] some media that actually count and matter and others that do not. That is an extraordinary statement to make and absolutely unacceptable,” he added.
Mr Dewey argued in court that today’s media is global, noting that The Daily Mail had 100 million page views in the US in the month of April.
DHS said in previous legal filings that the US Customs and Border Protection denied the requests because Prince Harry hasn’t consented to the release of the files, with Mr Bardo saying in court that an individual’s visa is “confidential”.
Speaking to reporters outside the DC federal courthouse on 6 June, Mr Dewey said that Prince Harry had foregone his right to privacy after his series of highly publicised interviews and Netflix documentary series.
Mr Dewey argued in court that the case is part of a larger probe into the conduct of the federal government, specifically into DHS supposedly not following the law in other areas of its responsibilities, such as not protecting the US border with Mexico.
“What are we asking for here?” Mr Dewey told reporters outside the courthouse. “We are only asking for the records that are related to this question that has been raised about the drug use and admission ... he’s talked about it, he’s written about it extensively, he has waived any privacy interest he has in his drug use, he has bragged about it in Spare and sold that.”
