South Dakota Gov. Kristi Noem visits the U.S. border with Mexico

Inside Public Integrity

Published — September 22, 2021

Public Integrity sues for National Guard border deployment records

South Dakota Gov. Kristi Noem visits the U.S. border with Mexico on July 26, 2021, near McAllen, Texas. (AP Photo/Stephen Groves)


The Center for Public Integrity filed a lawsuit against the U.S. Department of Defense and South Dakota National Guard on Wednesday seeking public release of records related to a decision by South Dakota Gov. Kristi Noem to deploy the Guard to the Texas-Mexico border earlier this year that raised issues about private funding of military actions and use of the military for political purposes.

The suit, filed in the U.S. District Court in Washington, D.C., contends that the Department of Defense and South Dakota National Guard are required under the Freedom of Information Act to produce documents related to the deployment and a private donation from billionaire used car auction entrepreneur Willis Johnson and his wife Reba that funded it. 

In denying Public Integrity’s request for documents, the South Dakota National Guard claimed that it “does not meet the definition of an agency under FOIA,” and that even if it did, the documents would be “exempt from release under FOIA” under the law’s exception for the deliberative process privilege and the attorney-client privilege. National Guard units have dual functions under state and federal laws.

“Transparency and accountability are core tenets of a healthy democracy. The public has the right to know how their resources are being influenced by political donors,” said Public Integrity CEO Paul Cheung. “By denying our access to those documents, the governor is eroding the public’s trust.”

Public Integrity, one of the country’s oldest nonprofit investigative news organizations, is a leader in its use of FOIA litigation to obtain documents and data from government agencies. Among news media requesters, only The New York Times, Buzzfeed and Jason Leopold, now with Buzzfeed, have filed more FOIA lawsuits during the past two decades, according to a study by the FOIA Project at Syracuse University’s Transactional Records Access Clearinghouse.

Last year, the Trump administration agreed to pay Public Integrity nearly $40,000 to reimburse the organization’s legal costs in separate lawsuits that forced the Department of Commerce, Department of Defense, federal Office of Management and Budget and U.S. Customs and Border Protection agency to comply with the Freedom of Information Act in releasing documents related to then-Commerce Secretary Wilbur Ross, searches at the border and the Ukraine scandal that led to Trump’s first impeachment.

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