On June 25, 2021, the Small Business Administration (SBA) was sued under the Freedom of Information Act for stonewalling a request for records about anti-white racial discrimination by the Biden administration.
On May 25, Liberty Unyielding and the Bader Family Foundation asked the SBA for emails related to whether racial exclusions in President Biden’s coronavirus relief law were unconstitutional. Their freedom-of-information request focused on the Restaurant Revitalization Fund, which excluded white male restaurant owners for three weeks, until its funds were likely to be exhausted.
On May 27, a federal appeals court ruled that exclusion likely violated the Constitution. So it issued a temporary restraining order against the exclusion of white males from aid to restaurants, in Vitolo v. Guzman. On June 10, a federal judge in Wisconsin issued a similar order against the exclusion of whites from federal coronavirus relief for farmers, in Faust v. Vilsack.
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These racial exclusions, and the lawsuits brought over them, were the subject of extensive news coverage. This is an important issue the public has a right to be promptly and fully informed about.
But the SBA ignored the Freedom of Information Request, which addressed the very issue that LU staff had written and been quoted about by the press.
When I submitted the FOIA request on behalf of LU and BFF, I received an auto-reply email, showing SBA got the FOIA request. But it never produced the requested records, or gave any hint that it would do so. And it declined to assign a tracking number to the FOIA request, even though that is customary, or indicate when it might process the request.
Faced with this contempt for the law, the Bader Family Foundation sued the SBA in federal district court in Washington, DC, on June 25. The complaint I filed with the court as BFF’s lawyer is found at this link.
FOIA requires a federal agency to tell a requester the number of records it intends to release or withhold within 20 working days after receiving a FOIA request, and to produce the records themselves promptly thereafter. The D.C. Circuit Court of Appeals has warned agencies that they must “inform the requester of the scope of the documents that the agency will produce, as well as the scope of the documents that the agency plans to withhold under any FOIA exemptions” within the statutory deadline of 20 working days. (See CREW v. Federal Election Commission (2013)).
That deadline passed on June 24, yet SBA still has provided no information about what records will be produced, nor has it produced any records in response to plaintiff’s request. That violates the Freedom of Information Act.
Under FOIA, the SBA has thirty days to respond to the complaint after being served with it, with the thirty days starting with the day it was received by the U.S. Attorney’s office. The U.S. Attorney was served with the summons and the complaint on July 1, so the SBA probably needs to file its answer to the lawsuit by July 31.
When you sue a federal agency, you have to serve three entities — the local U.S. Attorney, the agency itself, and the Attorney General — with a copy of the complaint, and a summons ordering the agency to respond to the complaint. But the thirty days runs from the date the local U.S. Attorney gets the summons and complaint, not the earlier or later date it is received by the Attorney General or the agency. You send the summons and complaint to the agency and the Attorney General by certified mail, but they can be delivered to the U.S. Attorney either by hand or by certified mail.
Certified mail is cheaper than paying someone to hand deliver a summons and complaint. But certified mail takes longer to deliver them, because the U.S. Postal Service sends mail addressed to the Attorney General or the U.S. Attorney for DC to be irradiated in Pennsylvania or New Jersey, before that mail is delivered in Washington, DC. As the U.S. Attorney for DC explains, “Hand delivery is the preferred means for service of process because, due to safety and security procedures that were put in place following the anthrax attacks in 2001…all mail sent to the U.S. Attorney’s Office is initially routed through the main mail room at the Department of Justice” to be irradiated, “which can occasionally result in the delay or misdelivery of that mail.”
The Bader Family Foundation and Liberty Unyielding requested the following records in their FOIA request:
1. Emails in the covered date range about the constitutionality or unconstitutionality of prioritizing the award of grants to female-owned restaurants or to restaurants owned by blacks, Hispanics, or non-whites in any COVID-19 relief legislation or the American Rescue Plan Act, where such emails were sent or received by the SBA’s Administrator or general counsel or deputy general counsel, and where such emails were also sent or received by anyone outside the Small Business Administration.
2. Emails in the covered date range about the constitutionality or unconstitutionality of prioritizing the award of grants from the Restaurant Revitalization Fund in the American Rescue Plan Act, to small business concerns owned and controlled by women, or to socially and economically disadvantaged small business concerns, where such emails were sent to the SBA’s Administrator or general counsel or deputy general counsel, and where such emails were also sent or received by anyone outside the Small Business Administration.
3. Any email in the covered date range sent to or by the SBA Administrator about whether any provision in the American Rescue Plan (including any provision dealing with restaurants) violates constitutional provisions against racial discrimination or violates constitutional equal-protection provisions or complies with constitutional provisions regarding racial discrimination or equal protection.
The “covered date range” begins on February 1, 2021, and ends on the date on which you process this request, or June 23, 2021, whichever is earlier.
