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Published in Print: February 8, 2006, as Suit Against Ed. Dept. FOIA Delays Expected

Suit Against Ed. Dept. FOIA Delays Expected

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After months of waiting for documents related to the federal Reading First program, the Success for All Foundation was set to file a complaint in federal court last week against the Department of Education for its failure to fulfill numerous requests under the Freedom of Information Act.

The Baltimore-based foundation, which has complained to federal investigators over what it sees as mismanagement of the Reading First program, planned to file suit in U.S. District Court in Washington “seeking to compel … the U.S. Department of Education to disclose and release records that have been withheld.” Withholding the requested documents, the complaint contends, is “unjustified under the law.”

The foundation filed nearly a dozen FOIA requests with the Education Department last year, and some of the requests have been pending since last May. A Savannah, Ga.-based publisher, the Reading Recovery Council of North America, and Education Week have also tried to secure documents from the agency related to Reading First, without success.

Under the Freedom of Information Act, federal agencies must respond to a request for information—either by granting or denying the request—within 20 working days, although it may take longer to actually provide the documents. The law allows agencies to extend that response time under “extraordinary circumstances” by an additional 10 days, but not simply because of a backlog. The agencies may also charge “reasonable” fees for providing the documents, the law says.

Extended delays across the federal government prompted President Bush in December to order “tangible, measurable improvements” in federal agencies’ responses to open-records requests.

Sunshine on Practices

The Education Department’s FOIA office, with four full-time employees, received 2,232 requests in 2004, the latest year for which data on such requests are available. Nearly 2,100 requests were processed—some from the previous year—and nearly 350 were pending at the end of 2004. Some 1,000 of the requests were granted in full, while 659 were partially approved, according to the agency’s report to Congress.

For that year, the FOIA staff collected $13,732 in fees, and response times on complex requests ranged from an average of 10 days for the office of safe and drug-free schools to 134 days for the office of the inspector general.

That record makes it one of the better federal agencies for fulfilling FOIA requests, according to Lucy Dalglish, the executive director of the Arlington, Va.-based Reporters Committee for Freedom of the Press.

Success for All’s experience isn’t “anywhere near the worst horror stories I’ve heard,” said Ms. Dalglish. “They’re slow, no question, but the Education Department has been one of the better government responders out there.”

That doesn’t appease Robert Slavin, the founder and chairman of Success for All, a whole school improvement program focused primarily on literacy skills. He has documented a lengthy effort to secure documents that he says would shed light on how the Reading First program has, in his view, veered away from the mission of promoting research-based practice.

Mr. Slavin has charged that Reading First staff members and consultants have steered contracts to favored commercial programs with less evidence of their effectiveness than Success for All. He has cooperated in investigations by the Education Department’s inspector general and the Government Accountability Office, the investigative arm of Congress. ("States Pressed to Refashion Reading First Grant Designs," Sept. 7, 2005.)

“The entire concept of FOIA is to put the sunshine on what goes on in government as a means of preventing bad practices from occurring,” Mr. Slavin said. “Here’s a program that has [research-based reading instruction] as its main focus and has, from our perspective, been pushed off track in that regard. We need to understand how that happened.”

The $1 billion Reading First program aims to improve reading instruction in the nation’s struggling elementary schools through research-based practice and professional development. The foundation has received more than 5,000 pages of documents as a result of its FOIA filings, at a cost of more than $700, Mr. Slavin said. But about half those pages were not what was requested, and many more have not been released, he said. Moreover, the department has indicated the foundation would be charged more than $50,000 for staff time and copies of the rest of the documents, a cost Mr. Slavin described as “ridiculous.”

“They are not intended to cover any imaginable cost” of searching for and copying the documents, he said.

The Education Department did not respond over a three-week period to several Education Week requests for comment for this story.

Executive Order

Education Week filed a FOIA request with the Education Department last August and was still waiting last week for the requested documents related to Reading First. Several requests for an update on the progress of the search went unanswered until last month when officials in the FOIA office were alerted that the newspaper was working on an article on such delays. One official indicated that the requested documents were forthcoming. As of press time, no documents had been received.

President Bush signed an executive order Dec. 14 that calls for each federal agency to craft a plan for reducing response times and backlogs, set up a FOIA service center, appoint a public liaison, and conduct a review of FOIA processes. The agencies are required to report on their findings by mid-June. The federal government received more than 4 million FOIA requests in 2004, according to the Reporters Committee for Freedom of the Press.

The president’s order “is encouraging,” Ms. Dalglish said. “Each agency is going to have a political appointee making decisions and someone you can go to for answers,” she added. “We will have to see if it makes a difference.”

Vol. 25, Issue 22, Page 24

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