Biden administration repeatedly violated Freedom of Information Act

Biden administration repeatedly violated Freedom of Information Act

The Biden administration has violated the Freedom of Information Act (FOIA) over and over again.

The Education Department was sued on June 30 for withholding emails about school discipline sent or received by high-ranking officials. A FOIA request asked for those emails on May 21. That triggered a statutory deadline of 20 working days in which the Education Department had to either produce those emails, or at least disclose how many emails it would produce in the near future. It did neither, and the legal deadline passed by June 22.

The complaint in that lawsuit, which I drafted, can be found at this link. The lawsuit is pending in the U.S. District Court for the District of Columbia. The Biden administration is also dragging its feet in producing records related to a history and civics grant program that promotes the controversial left-wing 1619 Project, withholding almost all such records.

On June 25, 2021, the Small Business Administration (SBA) was sued under the Freedom of Information Act for stonewalling a request for records about racial discrimination by the Biden administration. A blog and a charitable foundation I administer asked the SBA for emails about whether it violated the Constitution for Biden’s stimulus package to exclude whites from certain forms of coronavirus relief. The Biden administration’s Restaurant Revitalization Fund excluded white male restaurant owners for a three week period in which all available relief funds were expected to be paid out. The SBA was in charge of administering this racially-discriminatory policy.

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On May 27, a federal appeals court ruled this racial discrimination likely violated the Constitution. So it issued a temporary restraining order telling the Biden administration to stop excluding white males from aid to restaurant owners, in Vitolo v. Guzman. The Biden administration was also ordered by federal judges to stop racially discriminating against white farmers, in later rulings in Wisconsin and Florida.

But even after courts ruled that constitutional violations were likely occurring, the Small Business Administration failed to produce emails it sent or received about these alleged violations. The SBA did not even acknowledge receipt of the FOIA request, and never said whether it will comply with the request, even though FOIA gives agencies a deadline of 20 working days to respond to FOIA requests — a deadline that passed last month.

The Biden administration conceals records even when it goes through the motions of complying with the Freedom of Information Act, making its compliance illusory. On May 28, the Education Department responded to a FOIA request for emails related to a Biden administration history and civics grant program that promotes the left-wing 1619 Project. Although thousands of people submitted comments about it to the Education Department, and some apparently sent emails forwarding their comments to Education Department officials, the Education Department falsely claimed it had no emails about these subjects.

(Many historians have criticized the 1619 Project for falsely claiming that America began in 1619, when slaves were brought to Virginia, rather than 1776, when America declared its independence. The 1619 Project also falsely suggested that American colonists declared independence to preserve slavery, even though the colonists criticized the British slave trade, and some of the colonies abolished slavery shortly after independence.)

When it was pointed out that the Education Department’s claim not to have such emails was ridiculous, and that many emails about these subjects obviously existed, the Education Department eventually reversed its position, and it admitted on June 24 that 605 pages of emails about these subjects existed — not zero pages, as it claimed on May 28.

But its belated concession that the records existed made little difference, because it still refused to produce any meaningful part of them. It whited out virtually all of these 605 pages of emails as secret, under the so-called “deliberative process privilege.” For example, at this link,   you can see how the Education Department redacted 102 of 103 pages in an email, revealing virtually nothing about the email’s content.

Thus, the Biden administration cited privilege to erase virtually all of the records it had to produce in response to a Freedom of Information request. That was wrong, because the factual portions of an email are not privileged, and have to be produced rather than erased. As an appeals court has explained, deliberative process “privilege applies only to the ‘opinion’ or ‘recommendatory’ portion” of a document, not the “factual information” in it.

FOIA specifically requires that, if a requested record contains information that is exempt from disclosure, “any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt.”

Yet the Education Department did not provide such factual information. Instead, it redacted almost all of the 605 pages it produced, except for a few emails that the FOIA request did not even ask for. The only emails it produced in full were mass emails sent by a think-tank, that did not even discuss the 1619 Project or federal grants.

The Education Department also wrongly withheld many emails, by only producing emails sent between February 1, 2021 and March 24, 2021, not emails sent in April or May. The FOIA request also sought emails sent in April and May, when many members of the public wrote about this subject to the Education Department. Any emails from the general public have to be released in full, because “deliberative process privilege” never applies to communications with the public.

The Agriculture Department also violated the Freedom of Information Act. On May 24, a FOIA request asked it for emails “about the constitutionality or unconstitutionality of debt relief or debt forgiveness for black or non-white borrowers.” The Agriculture Department’s deadline for complying with that FOIA request passed on June 23. It is now July, and at least two courts have already found that the Biden administration’s exclusion of white farmers from Agriculture Department debt relief programs is likely unconstitutional. But the Biden administration has yet to produce any of the requested records, or provide any hint of when it may do so.

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for CNSNews.com and has appeared on C-SPAN’s “Washington Journal.” Contact him at [email protected]

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