Editor’s Note: This article was originally published by Liberty Unyielding on March 28, 2022, and is republished here with permission.
Under the Freedom of Information Act, federal agencies are supposed to respond to records requests within 20 working days, and hand over the records “promptly” thereafter, if they aren’t exempt from disclosure. But rather than doing that, they frequently violate FOIA. A classic example is how the Department of Education treated the well-known author and historian KC Johnson, who has written extensively about campus civil-liberties and civil-rights issues, and how college and civil-rights officials handle allegations of sexual harassment and assault. So today, I filed a federal lawsuit on his behalf.
Professor Johnson submitted a straightforward FOIA request on October 27 for the emails of the head of the Education Department’s Office for Civil Rights, Catherine Lhamon. The request was limited to emails she exchanged with 14 people and an advocacy group, Know Your IX.
Five months and over 100 working days have passed, but still, the Education Department has not issued Professor Johnson a determination, much less produced any of the emails he requested. The Department has no possible basis for withholding the records — they were exchanged with people outside the government, so the deliberative process privilege does not apply (that privilege is the most common reason for agencies to withhold records).
Even if it had any reason to withhold the records in whole or in part, the Education Department still had to make a determination about whether to release the records within 20 working days, and explain it to Professor Johnson. As the D.C. Circuit Court of Appeals explained in CREW v. FEC (2013), agencies must “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” within the statutory deadline of 20 working days.
When the 20-day deadline elapsed, the Education Department sent Professor Johnson not the required determination, but instead a letter stating that it would not be able to meet the 20-day deadline due to “unusual circumstances.” It erroneously claimed that the “scope of your FOIA requests requires the Department to conduct a vast search across multiple program offices, which we anticipate will result in a large amount of responsive records.”
But “unusual circumstances” did not exist to justify any delay in responding to Professor Johnson’s request. Professor Johnson’s FOIA request sought emails sent or received by a single high-ranking official, the head of the Office for Civil Rights, which could presumably be found in a single email account in a single program office, the Office for Civil Rights. Moreover, the “amount of responsive records” sought by his request were smaller than many other FOIA requests, such as those seeking all of an agency official’s emails over a specified period, rather than just emails exchanged with a limited number of people, as was the case with Professor Johnson’s request.
When I worked in the Education Department, all of my emails were requested by journalists — literally thousands of pages — but the Education Department did not claim that “unusual circumstances” existed to delay their production, even though the people requesting my emails did not limit their FOIA requests to communications with particular people, the way Professor Johnson’s narrower FOIA request did.
Professor Johnson’s request is of a more modest sort than many FOIA requests that weren’t deemed to involve “unusual circumstances.” For example, FOIA requests related to agency rulemakings can result in thousands of pages of draft regulations and annotated comments falling within their reach. Such FOIA requests require time-consuming redactions and document review, yet the Education Department has responded to requests for such policymaking records without citing “unusual circumstances.”
By contrast, the Education Department will not need to carefully review the records sought by Professor Johnson on a line-by-line basis, because records exchanged with people outside an agency (like the advocacy group named in Professor Johnson’s request) are, by definition, not exempt from disclosure, due to the fact that sharing a document outside the government waives the deliberative process privilege even for highly sensitive documents. So it will be easy to process and release the records that Professor Johnson seeks.
Because the emails he seeks are not privileged, they will not be that voluminous, either. If you send a draft agency policy outside the government, it loses its privileged status, as a court reminded an agency in Competitive Enterprise Institute v. Office of Science and Technology Policy (2016), forcing the agency to turn over to me a draft agency position it shared with an academic.
So agency officials usually don’t attach draft regulations or other lengthy draft policies to emails they send people outside the agency. Instead, they meet those people in person to discuss agency policy, or discuss it by phone. Their emails to people outside the government often provide hints of what policies they are developing, but usually not in great detail or with great specificity.
As a result, Professor Johnson’s request, which involved communications with people outside the agency, is unlikely to lead to an especially large “amount of responsive records,” especially compared to many FOIA requests that the Education Department has responded without even claiming there are “unusual circumstances” justifying a delay.
The delay in responding to Professor Johnson’s request is particularly unjustified because the emails he seeks were potentially newsworthy, and could shed valuable light on how government policy was made. Agencies sometimes respond to newsworthy FOIA requests on the very day they are received, rather than waiting 20 days to respond to them — like the Justice Department’s response to New York Times reporter Charlie Savage’s FOIA request about Justice Department political hiring, or the Office for Civil Rights’ response to a FOIA request when I was working there in 2005.
As Professor Johnson noted,
the requested records involve correspondence between Lhamon and key figures outside the executive branch—activists, legislators, staffers, and one ex-journalist—who advocated for complainant rights during this period. Correspondence with Lhamon might reveal how she framed her intentions with a sympathetic audience. In this respect
1. The subject matter of the requested records themselves specifically concern identifiable “operations or activities of the government”—in this case, the Obama administration’s approach to what Title IX required of colleges and universities as they adjudicated student-on-student sexual assault allegations.
2. The disclosable portions of the requested information would be meaningfully informative in relation to the subject matter of the request given how rarely Lhamon spoke with specificity regarding the justifications for her policies.
3. I have co-written a book (with Stuart Taylor, Jr.) and a law review article (with Samantha Harris) on Title IX and campus sexual assault. I have also written op-eds on the topic in, among other places, the Washington Post, Wall Street Journal, and USA Today. This material will appear in a law review article I am currently writing and, in all likelihood, in op-eds on Lhamon’s activities.
4. Given how rarely Lhamon spoke with specificity about the justifications for her policy discussions, the disclosure would “contribute significantly” to public understanding of how the Obama administration handled Title IX matters.
Professor Johnson’s FOIA request sought:
all emails between Catherine Lhamon and:
–Sabrina Rubin Erdely
–Know Your IX
–John Clune (Date Range for Record Search: From 06/01/2013 To 11/17/2016).