On September 20, a federal court ruled that the U.S. Department of Education violated the Freedom of Information Act through its inadequate search for records about school discipline and school discipline policies. A high-ranking political appointee may have violated the Federal Records Act by conducting official business using a private, non-official email account, judging from the court’s October 5 Minute Order, and the official’s evasive earlier response to the Court.
The Education Department had a duty to turn over emails between Biden political appointees and 9 members of the public about school discipline. But it conducted an unduly narrow search for those communications. It also failed to explain why it did not search the Columbia University email account of Deputy Assistant Secretary Suzanne Goldberg for emails about school discipline located there. Goldberg received emails in her Columbia University account rather than her government email account because she touted her high-ranking position on Columbia’s web site. As a result, at least three critics of the Biden administration’s approach to school discipline sent Goldberg emails to her Columbia account, which was not searched by Education Department FOIA staff.
In her September 20 ruling, U.S. District Judge Dabney Friedrich ordered that “the Department of Education shall (1) file on or before October 4, 2022 a supplementary declaration explaining its failure to search Suzanne Goldberg’s non-government email address, or (2) conduct a search of her non-government email address.” The judge also ordered the Education Department official Department email accounts again, using broader search terms likely to capture more communications about school discipline or school discipline policies.
The Education Department and the entity that brought the FOIA lawsuit — the Bader Family Foundation — agreed on search terms for another, more complete search of the Education Department’s email accounts. But the Education Department declined to search Deputy Assistant Secretary Goldberg’s private email account, even though it tacitly conceded Goldberg had used the Columbia account for official business. The judge’s September 20 ruling told the Education Department to disclose “whether Goldberg’s school email account was used, even sporadically, for official business.” But the Education Department declined to answer that question. Instead, on October 4, it submitted a declaration from Goldberg saying, “I have not used my non-government email address (firstname.lastname@example.org) to conduct agency business concerning school discipline and/or school disciplinary policies.” (italics added). It did not deny that Goldberg used her Columbia email account for other kinds of agency business. Using a personal email account to conduct agency business generally violates the Federal Records Act.
On October 5, the judge issued a Minute Order ruling that this evasive response was inadequate, and that the Education Department’s “continued resistance on this issue ‘speaks volumes.'” As the judge explained, “if Goldberg used her personal email account for official business, even official business unrelated to school discipline or disciplinary policies, the account is subject to a search under FOIA.” Accordingly, the Education Department was “ORDERED to supplement, on or before October 18, 2022, Goldberg’s declaration by addressing the specific inquiry set forth in the Court’s Memorandum Opinion: whether Goldberg ever used her non-government email account for official business.”
As the Bader Family Foundation noted in the Declaration of Hans Bader, the Education Department’s evasive response amounted to a tacit concession that Goldberg’s Columbia email account had been used for at least some official business, under a legal principle known as the adverse inference rule. (See, e.g., Wigmore, Evidence In Trials At Common Law, § 285; Gray v. Great American Recreation Ass’n (1992); Interstate Circuit v. United States (1939)).
When high-ranking government officials use a non-official email account to conduct official business, that typically violates the Federal Records Act. Moreover, agency officials have a duty to forward emails they receive from members of the public from their personal accounts to their government email account. As the National Archives explains,
The Federal Records Act (44 U.S.C. 2911 as amended by Pub. L. 113-187) states:
(a) IN GENERAL.—An officer or employee of an executive agency may not create or send a record using a non-official electronic messaging account unless such officer or employee— (1) copies an official electronic messaging account of the officer or employee in the original creation or transmission of the record; or (2) forwards a complete copy of the record to an official electronic messaging account of the officer or employee not later than 20 days after the original creation or transmission of the record.
Electronic messages created or received in a personal account meeting the definition of a Federal record must be forwarded to an official electronic messaging account within 20 days. The statutory definition of electronic messages includes email.
Goldberg’s declaration claims that “to the best of my knowledge, I have forwarded any emails I have received at my email@example.com email account regarding the aforementioned matter [the responsive emails about school discipline] from my firstname.lastname@example.org email account to my Department email account.”
However, Goldberg does not claim to have forwarded all emails about official business to her Department email account, as the Federal Records Act requires. And if Goldberg had forwarded emails about school discipline to her email account, as she claimed, one would have expected that such correspondence would have been produced to the Bader Family Foundation in response to its FOIA request. But it was not.
The Education Department was sued on June 30, 2021 after it failed to comply with the Freedom of Information Act’s deadline for releasing records about school discipline. To avoid a court order compelling it to produce the records, it purported to release them. But in reality, it failed to produce some of them. It didn’t realize I would figure that out, because I already had copies of some of those records, due to their authors covertly sending me copies of them.
Liberty Unyielding and the Bader Family Foundation had sought email correspondence between Education Department officials and various people who write about school discipline — both progressive academics and activists who think school discipline is racist, and conservatives who think it isn’t. After the Education Department failed to comply with FOIA’s deadline of 20-working days to respond to a FOIA request, the Bader Family Foundation sued it in federal court in Washington, DC.
On August 30, the Education Department turned over a few hundreds pages of emails, claiming it had conducted an adequate search for them. But I discovered that its search was incomplete, because it didn’t even turn over the few emails I already in my possession that were sent to the Education Department from people who write about school discipline. For example, I had received blind carbon copies of two emails sent to the acting Assistant Secretary for Civil Rights, Suzanne Goldberg, by Fred Woehrle on May 10, 2021. Both of them discussed “school discipline,” were sent to the highest-ranking Education Department official covered by the FOIA request, and were within the four-month time period covered by the FOIA request. But the Education Department didn’t produce either of these emails in response to the FOIA request — neither the one sent to Goldberg’s official email account, email@example.com, nor the one sent to Goldberg’s private, non-official email account, firstname.lastname@example.org. It just acted like the Woehrle emails didn’t exist. It also failed to disclose the existence of Goldberg’s response to one of Woehrle’s emails.
On June 4, 2021, the Biden administration issued a notice calling for new federal policies about school discipline, in light of the fact that “students of color” are disciplined more often than “their White peers.” It cited a controversial report by the U.S. Commission on Civil Rights “finding that: Students of color as a whole, as well as by individual racial group, do not commit more disciplinable offenses than their white peers.”
But as a Washington Post news reporter noted in 2019, the Commission never showed that “finding” was true. The Commission’s chairwoman, who is now President Biden’s nominee to head the Education Department’s Office for Civil Rights, “pointed to a few spots” in the Commission’s report to “claim that there are no underlying differences in student behavior. But those citations did not offer such evidence. One set of data referenced in the report showed the opposite,” noted The Post’s Laura Meckler.
Moreover, studies and surveys show that black students do have higher rates of misbehavior in school. Data from the National Center for Education Statistics shows blacks are much more likely than whites to get into fights at school — 11.4% of blacks did so, compared to 5.2% percent of whites, according to the Education Department’s NCES Indicators of School Crime and Safety: 2016.
Emails released in response to the FOIA lawsuit show that the Education Department should have known better than to claim that students of color don’t commit more disciplinable offenses than their white peers.
Those emails show that the Education Department was aware of the federal School Safety Commission report, which cited research finding that school misbehavior rates differ by race. A highlighted portion of that report notes that “researchers” had “analyzed the specific circumstances underlying these suspensions and discovered that ‘the racial gap in suspensions was completely accounted for by a measure of the prior problem behavior’ of the student.” An unhighlighted portion of that report points out that
research studies reveal that black youth, in comparison with their white counterparts, are … disproportionately involved in delinquency and crime (Earls, 1994; Hawkins, Laub, & Lauritsen, 1998), and are more likely to behave in ways that interfere with classroom and school functioning (Beaver, Wright, & DeLisi, 2011). These studies, and others from various disciplines, suggest that the school disciplinary rates may also reflect the problematic behaviors of black youth—problem behaviors that are imported into schools and into classrooms.
The extent to which Goldberg used her email account to conduct official business is unclear. But in the past, when government officials covertly used their private email accounts to conduct official business, that triggered condemnation from Congressional overseers and journalists. That’s not surprising, because if agency records are located in a non-official email account, they will be overlooked when agency staff respond to FOIA requests and Congressional inquiries, and concealed from policymakers in subsequent administrations. (See, e.g., Senate Committee on Environment and Public Works, Minority Report, A Call for Sunshine: EPA’s FOIA and Federal Records Failures Uncovered (Sept. 9, 2013) at 8-13, discussing and criticizing the use of private email accounts to conduct government business at length); Stephen Dinan, EPA Officials Lied About Email Use, Senator Says, Washington Times, March 11, 2013, at A4 (discussing use of private email accounts to conduct government business); Sunshine Law Gets Cloudy When Federal Officials Take Email Home, Washington Times, Aug. 14, 2013, at A1 (same); EPA Staff to Retrain on Open Records; Memo Suggests Breach of Policy, Washington Times, Apr. 9, 2013, at A4 (same)).