Civil Rights Commission releases records in response to FOIA lawsuit

Civil Rights Commission releases records in response to FOIA lawsuit
Catherine Lhamon (Image: YouTube screen grab via Yale Law School)

The U.S. Commission on Civil Rights has released 280 records in response to a lawsuit under the Freedom of Information Act. But it continues to withhold 3,862 more records, as it explained in an October 25 letter releasing the 280 records. The records are emails from the Commission’s former Chair, Catherine Lhamon, who now heads the Education Department’s Office for Civil Rights; and an office director of the Commission, Katherine Culliton-Gonzalez. They were released in three sets, that can be found as Part 1, Part 2, and Part 3.

One example of a record produced by the Commission is an August 3, 2020 email exchange between Catherine Lhamon and Fatima Goss Graves of the National Women’s Law Center discussing “Systems of Sexual Misconduct Accountability for Candidates/Nominees/Officeholders.” Graves writes,

“Catherine, The past months and years have shown us that when allegations of sexual harassment or violence are brought against political candidates, judicial nominees, or high officeholders, we lack the systems necessary for appropriate response: trusted, nonpolitical, unbiased systems for factfinding and accountability that do not unnecessarily expose survivors to harm. I am reaching out to invite you to join me in a small conversation I am co-hosting with Professor Anita Hill about what such a system might look like and the principles that should inform its design.”

Lhamon responds, “Thank you for doing this,” and offers to circulate material “useful” for this purpose.

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The notion of Lhamon collaborating on “systems for factfinding and accountability” that are “trusted” and “unbiased” might seem odd to Lhamon’s detractors. Lhamon was very controversial when she served as head of the Education Department’s Office for Civil Rights during the Obama administration. Critics argued that her “Dear Colleague” letters during the Obama administration pressured colleges to swiftly discipline accused students based on very meager evidence, ignoring Supreme Court rulings. They said that led to colleges frequently violating due process, and courts frequently overturning college disciplinary decisions as biased against the accused.

As a result, when President Biden nominated Lhamon to head the Office for Civil Rights during his administration, she barely managed to get confirmed. Not a single Republican Senator voted to confirm her, and she was confirmed in a close, party-line 51-to-50 vote, only after Vice President Harris cast a tie-breaking vote in favor of her confirmation.

The Daily Wire wrote:

Even though Catherine Lhamon’s tenure in the Obama administration proved she was decidedly anti-civil rights, she has been confirmed to lead the Education Department’s Office for Civil Rights under the Biden administration.

Lhamon was one of the biggest purveyors of removing due process, common sense, and any semblance of basic fairness from college’s adjudication of sexual misconduct accusations. For the past five or six years in particular, Lhamon’s view of campus “justice” has been repeatedly rebuked in hundreds of court decisions finding that the Obama-era way of adjudicating campus sexual assault claims denied accused students a chance to defend themselves. These rulings came after hundreds of students filed lawsuits, providing evidence that colleges ignored exculpatory evidence that would have cast significant doubt on the allegations against them.

Lhamon supported these kinds of inquisitions, even threating to withhold funding from schools that didn’t follow the Obama administration’s anti-due process policies.

The notion of Lhamon, Graves, and Hill collaborating on accountability mechanisms that are “nonpolitical” might seem odd to those who argue that they exhibited partisan double standards when it came to sexual wrongdoing. For example, Anita Hill defended Democratic President Bill Clinton, who was accused of sexually harassing Paula Jones and raping Juanita Broaddrick, advocating that Clinton be given the benefit of the doubt. By contrast, she claimed that Supreme Court Justice Brett Kavanaugh, a Republican appointee, “has the burden” of proving himself innocent of charges against him.

Other emails discuss subjects such as how a Trump appointment to the Commission prevented the Commission from adopting a “Minority Voting Rights Report,” yet the report ended up on the Commission web site, leading a reader to assume it was adopted by the Commission. As Culliton-Gonzalez privately noted in an August 26, 2020 email, “The 2018 Minority Voting Rights report is on our website..But we now have a new Commissioner recently appointed by President Trump and there was a 4-4 vote and it needed a majority to pass. I am so sorry it didn’t pass…but the new Commissioner is opposed…it’s disappointing after all our work on it.”

These were a few of the 280 emails released after the U.S. Commission on Civil Rights was sued on August 23 by the Bader Family Foundation, for illegally refusing to comply with the Freedom of Information Act. The Commission had claimed that a FOIA request for the outgoing emails of these two Commission officials over a six-month period was too non-specific to qualify as a FOIA request, even though the request described exactly whose communications were sought, and when they occurred. The Commission had refused to provide the requested records, claiming that “the request fails to describe the information sought.”

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. (Lhamon, a controversial and polarizing figure, was recently confirmed on a party-line 51-to-50 vote to head the Education Department’s Office for Civil Rights. All 50 Republicans voted against her confirmation, which only because Vice President Kamala Harris cast a tie-breaking vote in favor of Lhamon).

The Commission has withheld as privileged many more records than it released (3,862 withheld versus 280 released). That is likely a violation of the Freedom of Information Act. Most agency records contain purely factual information that is not privileged and thus can’t be withheld. Records, even those that contain privileged material, are supposed to be released after redacting the privileged material, not just withheld in their entirety.

It is typical for agencies to release more records in redacted form than they withhold in full. For example, the Agriculture Department on August 18 released 254 pages in redacted form, while withholding 19 pages in their entirety, in response to a FOIA lawsuit by the Bader Family Foundation seeking records about the constitutionality or unconstitutionality of using race as a factor in handing out COVID relief.

It is almost certain that the 3,862 email records that the Commission withheld contain factual information that needs to be produced. Under FOIA, an agency has a duty to “consider whether partial disclosure of information is possible whenever the agency determines that a full disclosure of a requested record is not possible; and take reasonable steps necessary to segregate and release nonexempt information.” 5 U.S.C. § 552(a)(8)(A)(ii).

None of these records were released until the Commission was sued, because the Commission claimed the FOIA request it received was too vague to comply with.  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).

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 was easily able to 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 was 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. 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 was 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).

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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