BLOG | Shunning the Sunlight

If sunlight is the best disinfectant, the Department of Education is desperately trying to avoid a deep cleaning. After the Department released an error-riddled Free Application for Federal Student Aid, bureaucratic delays and glitches left students waiting for months to find out if they could afford a college education. The mismanagement was so severe that the Government Accountability Office (GAO) opened an investigation.

An administration that valued transparency would have provided the GAO with whatever it needed. Four months after the investigation began, the Biden Education Department still refuses to hand over documents that it is legally required to provide.

The GAO is far from alone in its frustration. A new report from the Defense of Freedom Institute for Policy Studies (DFI) shows a complete disregard for providing the public with insight into how these controversial policy decisions are being made and who is pulling the strings behind closed doors.

When Congress enacted the Freedom of Information Act (FOIA) in the 1960s, it did so with the clear intention of breaking down barriers that federal agencies had used to conceal information about the inner workings of government from the public. The statute unambiguously provides that agencies “shall make available to the public information” unless it falls into limited categories of exempted material, such as documents that would reveal the interim deliberations of decision-makers or interfere with law enforcement investigations. Absent these exemptions, FOIA mandates that agencies make records “promptly available” to persons requesting them.

In a 2022 memorandum to federal agency leaders, Attorney General Merrick Garland acknowledged FOIA’s importance as “a vital tool for ensuring transparency, accessibility and accountability in government.” In the interest of securing an “informed citizenry,” the memo advises administration officials to interpret the law’s disclosure-oriented mandate broadly. The Attorney General correctly warns agencies that they cannot lawfully withhold records “based merely on speculative or abstract fears or fears of embarrassment.”  In short, the memo concludes, “FOIA is everyone’s responsibility.”

Based on the experience of DFI and other conservative-leaning organizations over the last several years, the Attorney General’s memo must have gotten lost in the Department’s mail. Since early 2022, DFI has filed 47 FOIA requests seeking information about the Biden Education Department’s policy decisions. The agency has only produced documents responsive to nine of DFI’s requests, and it acknowledges that half of those responses are incomplete. Two of our requests—for records reporting foreign donations to the University of Pennsylvania’s Biden Center and numerous other academic institutions—sit unfulfilled after more than 800 days.

In addition to foreign donations to American academic institutions, DFI’s FOIA requests seek records relating to other matters of important public concern, such as diversion of Department funds to efforts to promote gender ideology and DEI, potential conflicts of interest of a Department attorney who previously litigated against the agency in private practice, and Department collaboration with teacher unions to undermine charter school programs. Faced with the Department’s refusal to respond to these and other requests, DFI has been forced to sue the Department four times (so far) for information requested long ago, yet the Department persists in stonewalling, now through procedural maneuvering in the courts.  

DFI is not alone, as the Biden Education Department has stiff-armed FOIA requests from other watchdog organizations. For example, government watchdog Protect the Public’s Trust filed a lawsuit against the agency alleging that it had failed for eighteen months to respond to its FOIA request related to the Department’s scheme to use taxpayer dollars to pay college students for election work, which is against the law.

As if this anecdotal evidence isn’t bad enough, DFI’s new research on the Department’s FOIA compliance demonstrates a systemic failure by the agency under President Biden to comply with FOIA in anything close to a meaningful or timely fashion. The Department’s FOIA logs show that in the first three years of the Trump administration, the Department granted (either in full or in part) over 44 percent of FOIA requests the same year it received them. During the same time frame of the Biden administration, it did so for less than 20 percent of these requests.

On the flip side of the coin, during the Biden administration, the Department recorded substantially higher rates of neither granting nor denying FOIA requests (thus leaving them in limbo) during the year they received these requests: the Biden-era records identify no final action for over half of all requests, compared to under 34 percent during the Trump years. The contrast between the two administrations is even more remarkable considering during the Trump administration, the Department received over 600 more requests than during a comparable time period of the Biden administration. Leaving a request in limbo is a particularly cagey maneuver, as the Department can’t be accused of wrongful denial while still putting off requesters (and the courts) with empty promises that someday, the documents might appear.

DFI’s new research also shows that there is likely an ideological motive behind the Biden Education Department’s refusal to respond to FOIA requests. Most notably, the logs show that the Department has granted in full or in part only 1 percent of FOIA requests made by conservative groups like DFI in the calendar year in which they were made; by contrast, during the Trump administration, the Department granted in full or in part 22 percent of FOIA requests from liberal groups in the same calendar year.

The Department’s 2023 Annual FOIA Report offers no reason for hope that it will change its scofflaw ways, noting that its backlog of unfulfilled FOIA requests by the end of the fiscal year did not decrease and totals more than 1,000 requests. Prompted to outline its plan to reduce this backlog, the Department’s Chief FOIA Officer places partial blame on a culture of noncompliance among Department staff, explaining that the Department “has greatly expanded FOIA training within [the agency] to reach more non-FOIA professionals to ensure these subject matter experts understand their obligation to search for and produce responsive records timely.” The Department’s approach to its FOIA duties makes a mockery of the Attorney General’s claim that compliance is “everyone’s responsibility” at the agency.

The Department’s colossal failure to comply with its FOIA obligations begs the obvious question of what it is trying to hide from the public. FOIA does not allow agencies to conceal records containing inconvenient or embarrassing truths from public view to protect political leadership. If the Biden administration continues to ignore its legal duties, the courts must step up to shine a light on what the Department wants to keep hidden. 

Donald A. Daugherty, Jr., and Paul Zimmerman serve as Senior Counsel for Litigation and Senior Counsel for Policy, respectively, at DFI. The authors wish to acknowledge the diligent research assistance of Selena Lin in collecting and evaluating the data described in this article.