Earlier, we wrote about Biden administration rules that impeded charter schools, reinforcing the power of left-wing teachers’ unions. Even the liberal Washington Post, which has not endorsed a Republican for president since 1952, criticized those rules as harmful and unjustified, as did non-partisan think-tanks such as the Fordham Institute.
I submitted a Freedom of Information Act request about those rules and the influences that led to them, on behalf of Liberty Unyielding and the Bader Family Foundation.
But the Education Department did not provide any records in response to our FOIA request. Nor did it comply with FOIA’s requirement that it provide a substantive response to my FOIA request within 20 working days after it received the request. (Within that 20 day period, “the agency must at least 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,” according to the courts.)
So we sued the Education Department to force it to produce the records we requested. The Education Department has now been producing records for five months, processing them at the rate of 500 pages or more per month. But many of the pages are entirely redacted in each monthly production. This month, the redactions have become extreme: It totally redacted all but four of the 574 pages it processed in October, as you can see from the records it produced, which are available at this link.
Upon reading the first set of released records, which are available at this link, a constitutional lawyer said “three things” jumped “out at” him: (1) agency officials “called a meeting because of” the Washington Post “editorial calling out the proposal as being terrible for disadvantaged kids, and then also circulated a piece by” the Fordham Institute, criticizing the Education Department’s proposed rule, yet went forward with it anyway; “(2) they were absolutely (maniacally) dedicated to issuing it over the July 4th holiday, despite the number of comments,” showing a hasty, ideologically zealous approach to agency decisionmaking; and “(3) they note that they can just plug in the weighting of the priorities” contained in their rule — the “competitive, investigational or mandatory” priorities “in their matrix” — “to generate any future grant application.” As he observed, that “throws some cold water on their insistence” in litigation over the rules “that they won’t really be using them in the future,” supposedly rendering legal challenges to them moot.
The lawyer also found interesting the fact that the office at the Department of Education office responsible for the charter school rules was being influenced by offices in the Department of Education that don’t have any expertise in charter-school issues, but are heavily fixated on racial bean-counting at the expense of educational innovation, such as the Office for Civil Rights (OCR). On page 525 of the first set of released records, a Biden administration official says, “I like the OCR revised sentence.”
Also striking is the fact that 570 of 574 pages were entirely redacted in the most recent monthly installment of records. Was that almost complete withholding of the records proper? Probably not, but we won’t know for certain for many months, because the Education Department has merely asserted that the redacted material is exempt under FOIA’s Exemption 5, but it has not explained in any detail why the material is allegedly exempt. In its cover letter accompanying the records, the Education Department asserts that the records it processed include “inter- or intra-agency information that could be withheld under civil discovery.” That does not even tell me what type of privileged information the redacted material allegedly constitutes, such as whether it is covered by deliberative process privilege, or is allegedly attorney work product. Courts have said that agencies generally do not even have to justify their redactions until they file a motion for summary judgment, which occurs months or years after a FOIA lawsuit is filed, at which point, they need to submit a detailed “Vaughn Index” describing the specific privilege cited for each redaction, the kind of information they redacted, and why none of the redacted material can be released. And when agencies withhold entire documents, they are usually supposed to describe the percentage of material in the document that is privileged, and why the remainder of the document can’t be segregated and released (such as purely factual information in a document discussing proposed policy changes).
Agencies usually withhold the lion’s share of interesting internal communications — the ones that describe what the agency is up to — under the deliberative process privilege. Courts have interpreted the deliberative process privilege very expansively in FOIA cases, and allowed it to be a categorical shield against disclosure in FOIA cases, unlike other cases, where deliberative process privilege can sometimes be outweighed by the need for information on the part of the person suing a federal agency, meaning that even communications that are deliberative and predecisional — and thus are covered by deliberative process privilege — may need to be released when the need for the information is sufficiently acute. Deliberative process privilege has become the exception that devours the rule of transparency created by FOIA.
That defeats FOIA’s whole purpose as “a means for citizens to know ‘what their Government is up to.'” The Supreme Court has explained that the “basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” As it observes, “FOIA is often explained as a means for citizens to know ‘what their Government is up to.'” The Supreme Court stressed that it is “a structural necessity in a real democracy.” As one president declared, a “democracy requires accountability, and accountability requires transparency.” The FOIA “encourages accountability through transparency.”
While withholding records about what the government is up to, agencies release trivial information that isn’t privileged. When I submitted a FOIA request about federal shenanigans related to a Supreme Court case involving the city of Saint Paul, Minnesota that the Justice Department tampered with, the Justice Department withheld all interesting discussions about the Supreme Court case and federal policies regarding the City of Saint Paul, found in numerous emails with the Assistant Attorney General. But it released the portions of those emails in which the Assistant Attorney General proclaimed his undying love for his “beloved Buffalo Bills.” Unless you are a Buffalo Bills fan, the emails the Justice Department released would be of no interest. In responding to my FOIA request, the agency separated the wheat from the chaff, and gave me only the chaff.
