Dept of Ed Goes Silent on FOIA Requests after Facing Criticism in Vouchers Report

PFAW Foundation Files Suit, Seeks Unlawfully Withheld Records

Washington, DC – Yesterday, People For the American Way Foundation (PFAWF) filed suit against the U.S. Department of Education in federal court in the District of Columbia over the Department’s unlawful failure to disclose certain records concerning the new federally funded school voucher program in the District of Columbia. The law firm of Jenner & Block is co-counsel with PFAWF in this lawsuit.

PFAWF requested the records under two Freedom of Information Act (FOIA) requests. Over the span of seven months the Department disclosed a number of records in response to the first FOIA request. However, after PFAWF published a report concerning the implementation of the DC voucher program that was critical of the Department -- a report based in part on the previously disclosed records -- the Department stopped responding to PFAWF’s outstanding second FOIA request, despite prior representations that additional responsive records had been collected and would be disclosed. Furthermore, the Department has not responded to any communications from PFAWF about its failure to comply with its FOIA obligations, leaving PFAWF with no choice but to file suit.

PFAWF’s lawsuit seeks disclosure of improperly redacted and withheld records. It is the third lawsuit in recent months that PFAWF has had to file against an Executive Branch agency in the face of administration stonewalling of FOIA requests.

“The Department of Education cannot arbitrarily decide when and how it responds to FOIA requests, or whether it does so at all,” said Ralph G. Neas, president of PFAWF. “The Department apparently has now decided to give us the silent treatment, but the real casualty is openness in government.”

PFAWF first filed a FOIA request about the new DC voucher program with the Department of Education in May 2004, seeking certain specified records pertaining to the implementation of the program. The Department disclosed a number of records over the next seven months. However, the Department redacted a number of responsive records -- some in their entirety -- under the Department’s wrongful claim of FOIA exemptions that do not apply to those records. The Department made no effort to explain or justify why any claimed FOIA exemption applied to any specific withheld record. PFAWF submitted an administrative appeal, but the Department never took action on it.

In November 2004, PFAWF filed a second FOIA request with the Department seeking additional specified records pertaining to the DC voucher program and pursuing investigative leads indicated by the records it had already received. In particular, PFAWF sought records pertaining to the annual evaluation of the DC voucher program mandated by Congress, which the records previously disclosed by the Department indicated could not be done this year in the manner required by Congress due to the insufficient number of students who had applied for vouchers The Department failed to take action on this second FOIA request by the FOIA-mandated deadline in December, but in response to subsequent PFAWF inquiries the Department claimed it was processing responsive documents and would have a partial response ready in early January.

Having received nothing by the end of that month, PFAWF submitted an administrative appeal to the Department. Within days, the Department disclosed some records and said it was reviewing others for release. Significantly, the Department claimed that the office in charge of overseeing the voucher program had no responsive records.

On February 7, PFAWF released a report on the implementation of the DC voucher program based on the documents it had obtained thus far through FOIA and on other publicly available information. The report was critical of the implementation of the voucher program by the Department. Among other things, the report noted the previously undisclosed fact that, according to the Department’s own records, of the approximately 1,300 students who were awarded vouchers for the 2004-05 school year, fewer than 75 came from D.C. public schools most in need of improvement as defined by federal law, even though the voucher legislation gave priority to students in those schools. At the same time, as the report noted, more than 200 students already enrolled in private schools had received vouchers. The PFAWF report also discussed the fact that the private schools participating in the voucher program had been given incomplete and misleading information about their non-discrimination obligations, and that the Department and other proponents of the voucher program had attempted to obscure certain negative aspects of the program from Congress, the press, and the public.

Since the release of its report, PFAWF has received no further response from the Department regarding either its second FOIA request or its administrative appeals. All inquiries from PFAWF have gone unanswered, and the Department has failed to disclose the responsive records that it previously had informed PFAWF had been collected for review and disclosure.

“In case after case the administration has attempted to flout FOIA and this is just the latest example,” said Neas. “Sadly, despite the clear requirements of FOIA, all too often the public can’t get answers from this administration without filing a lawsuit.”

PFAWF has also filed suit against the Department of Justice (link) and National Park Service in response to administration stonewalling of FOIA requests.

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