Judge Colleen Kollar-Kotelly of the U.S. District Court for the District of Columbia. Photo: Diego M. Radzinschi/THE NATIONAL LAW JOURNAL

A federal judge is stepping in to ensure that President Donald Trump’s voter integrity commission is in compliance with public disclosure laws.

Justice Department lawyer Elizabeth Shapiro apologized to U.S. District Judge Colleen Kollar-Kotelly of the District of Columbia in a hearing Wednesday for “confusion” over what documents the Presidential Advisory Commission on Election Integrity was required to post publicly prior to its first meeting on July 19. The judge accepted her apology, but noted that because the government “didn’t live up” to its initial representations of what would be disclosed, she would require new declarations about how the commission plans to comply with disclosure rules under the Federal Advisory Committee Act moving forward.

“If you’re doing compliance, it’s the end of the case. If you are not doing compliance, it’s not the end of the case,” the judge told the government lawyers.

The committee faces a barrage of lawsuits over disclosure requirements and its request for personal voter information from states. Trump issued an executive order in May creating the commission “to promote fair and honest federal elections.”

Following the July 19 meeting, the Lawyers’ Committee for Civil Rights Under Law told the court that the commission discussed several documents during its meeting that were not disclosed to the public, prompting Kollar-Kotelly to hold Wednesday’s hearing. The commission’s designated officer, Andrew Kossack, said in a July 13 declaration that any documents “prepared for or by the commission will be posted to the commission’s webpage prior to the meeting.” However, several prepared statements and reports were not posted.

Government lawyers said in court filings that commission staff didn’t think those documents needed to be made public because they were brought  to the meeting by individual commissioners. FACA requires that “the records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by each advisory committee shall be available for public inspection and copying.”

In the hearing, Kollar-Kotelly asked Shapiro what, if any, efforts were taken to inform commission members of disclosure duties under FACA. Shapiro said the commission had FACA training in the form of a PowerPoint slideshow prior to the meeting, but the presentation did not address when documents had to be posted. She said there “was a little bit of unknown and a little bit of disorganization” prior to the meeting and that the government had no intention of hiding any documents.

In advance of its upcoming Sept. 12 meeting, staff sent a letter to all commissioners requesting they provide any documents they planned to use ahead of time, Shapiro said.

The judge said the letter was a “good first step,” but added she needed more information in order to determine whether the commission is in compliance with FACA. She ordered the government to provide two declarations: one detailing its position on which documents it believes require disclosure under FACA, and steps it will take to identify those documents. She also asked for a list, known as a “Vaughn index,” of all the documents it has related to the commission, which ones it thinks require disclosure and why or why not.

“Frankly, I need specifics,” the judge said. Shapiro said the government would “manage to work through that.”

Arnold & Porter Kaye Scholer partner John Freedman, who represented the Lawyers’ Committee,  said a Vaughn index was “the way to go,” but added he’s concerned over whether the government will provide a complete list. Kollar-Kotelly dismissed Freedman’s concern, noting the list would include the entire “universe” of documents.

“Be happy with what you get,” Kollar-Kotelly told Freedman.

The parties will submit a joint report by the close of business Sept. 5 on the timing for the list and declarations, though Shapiro said it’s unlikely the filings will be ready before Sept. 26. She said the government is facing seven lawsuits over the commission, and expects a busy month ahead.

The Lawyers’ Committee sued the commission in the federal district court in Washington, D.C., prior to the first meeting, asking the judge to order the commission to disclose its documents to the public before the meeting took place. Kollar-Kotelly declined on the grounds that the meeting had not yet occurred and there was no evidence suggesting the government was out of compliance with the law.