Civil Rights Commission sued for violating Freedom of Information Act

Civil Rights Commission sued for violating Freedom of Information Act
Catherine Lhamon (Image: YouTube screen grab via Yale Law School)

The U.S. Commission on Civil Rights was sued on Monday by the Bader Family Foundation, for illegally refusing to comply with the Freedom of Information Act. The Commission claimed that a FOIA request for the outgoing emails of two Commission officials over a six-month period was too non-specific to qualify as a FOIA request, because it didn’t specify emails of a particular subject matter. The Commission has refused to provide the requested records, claiming that “the request fails to describe the information sought.”

But the FOIA request clearly described the records it sought, listing the specific Commission staff whose emails were requested and the specific time frame covered by the request. The FOIA request sought the outgoing electronic communications for a six-month period (from July 1, 2020, to December 31, 2020), of two officials, the Commission’s Chairwoman, Catherine Lhamon; and Katherine Culliton-Gonzalez, the director of its Office of Civil Rights Evaluation.

Catherine Lhamon has been nominated by President Biden to head the Education Department’s Office for Civil Rights. A Senate committee recently deadlocked on her nomination. “Catherine Lhamon’s track record is also deeply troubling if not outright disqualifying,” said the committee’s ranking Republican, Sen. Richard Burr of North Carolina. “Ms. Lhamon has a history of using inflammatory rhetoric, violating students’ constitutionally based right to due process, and abusing regulatory power.”

The Commission claimed that “the request failed to ‘contain a sufficiently specific description of the record requested with respect to names, dates, and subject matter…’ as required by” its FOIA regulation. But that regulation only requires a FOIA request to “contain a sufficiently specific description of the record requested with respect to names, dates, and subject matter to permit such record to be identified and located.” [Italics added]

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The FOIA request obviously met that requirement: it specified the “names” of the people whose emails were sought, and the “dates” covered by the request. The Commission can easily identify and locate the email accounts for the two officials, and gather their emails for a six-month period by using the specified dates. Gathering the requested emails is made easier still by the fact that the FOIA request was limited to exclude all “communications between these” two Commission officials, “and anyone else within the U.S. Commission on Civil Rights,”

Moreover, the law contains no requirement that a FOIA request be limited to a particular subject matter. It is routine for citizens to request the emails of government officials, without limiting those requests to emails on a particular subject matter, or to a narrow timeframe. And agencies routinely comply with those requests, as they must. For example, a think-tank asked for essentially “all” of the 120,000 emails of the Environmental Protection Agency’s administrator. As a judge noted, the think-tank’s FOIA “request called for ‘all’ emails over several years, and it was not limited to any particular subject matter. … In response to the request, EPA identified approximately 120,000 responsive records, which it announced it would produce…” The EPA produced emails from its administrator’s account, even as the EPA’s lawyers grumbled that “Plaintiff’s FOIA request is unbounded by subject matter or meaningful timeframe, and essentially requests all of the emails from former Administrator of the EPA, Lisa Jackson’s day-to-day working email account.” But the agency had a duty to comply with FOIA, so the “EPA determined it would release records and is in fact releasing records on a rolling basis,” noted the EPA’s lawyers. (See Competitive Enterprise Institute v. EPA (2016)).

By contrast, the FOIA request the Civil Rights Commission refused to comply with was much more specific and less burdensome — it covered only outgoing communications to those outside the agency, for a six-month period. It was narrowed to outgoing communications over a six-month period after the Commission complained that otherwise, the request “would result in a return of thousands of documents.”

But there is nothing wrong with even a FOIA request that covers thousands of documents. The D.C. Circuit Court of Appeals ruled that a request encompassing over 1,000,000 computerized records was valid because the “linchpin inquiry is whether the agency is able to determine ‘precisely what records [are] being requested.” (Yeager v. DEA (1982)).

To comply with the FOIA request, the Commission merely had to electronically gather emails from two employees’ email accounts. That is a far simpler and less burdensome task, than complying with a FOIA request that requires an agency to search through 803 separate files in reverse chronological order, which an appeals court nevertheless found to be “reasonably described” and not “unreasonably burdensome,” in Ruotolo v. Department of Justice (1995).

Moreover, FOIA requesters routinely request thousands of pages of emails from agency officials’ email accounts, without limiting their requests to communications with specific “names” or “dates.” And judges order such emails produced. For example, Judge Rudolph Contreras ordered the release of “55,000 pages of emails” from former Secretary of State Hillary Clinton’s email account, in Leopold v. Department of State (May 27, 2015).

The FOIA request that the Civil Rights Commission refused to comply with was originally submitted by a private citizen, on January 30, 2021. On August 18, it was assigned by that requester to the Bader Family Foundation, which takes an interest in civil rights issues. A 2012 ruling allows FOIA requests to be assigned by one person to another.

The Civil Rights Commission has improperly withheld agency records in violation of FOIA, and if it continues to do so, a judge will likely issue an injunction against it.

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 hfb138@yahoo.com

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