FOIA Request: Records Related to the U.S. Department of Education’s Use of the “Unusual Circumstances” Exception to Delay the Provision of Responsive Records

AgencyDepartment of Education
TypeFOIA Request
IssueFOIA PoliciesTitle IX
DateApr 4, 2023

Since January 20, 2021, the Department has announced unprecedented policies involving, inter alia, massive student loan debt cancellation, redefining the meaning of sex to include gender identity (“Title IX”), the independence of charter schools, disclosure of foreign gifts and contracts by colleges and universities (“Section 117”), and placing race and other factors at the center of the Department’s grantmaking and related program decisions (“Agency Equity Plan”). In response to these radial policy developments, DFI has submitted thirty-eight FOIA requests to the Department. In response, the Department now routinely cites "unusual circumstances" to justify delaying the production of responsive records. "Unusual circumstances," described at 5 U.S.C. § 552(a)(6)(B)(iii) (i.e., the “unusual circumstances” exception to the timely production of responsive records), refers to the need to search and collect records from offices that are physically outside of the FOIA office itself, such as field offices. Through its routine reliance on "unusual circumstances," the Department has successfully delayed the timely provision of responsive records to DFI, despite its modern centralized electronic search capabilities. DFI's FOIA request is for records of the Department's decisions regarding its use of the "unusual circumstances" exception in order to delay or avoid timely responses to FOIA requests, including any related communications with White House and Congressional personnel.