It was a carefully crafted FOIA request, limited in scope and entirely within the requirements of law.

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.

The request was directed to Lhamon, the bureaucrat-activist who crafted the Title IX Dear Colleague Letter of 2014 that launched a thousand lawsuits and destroyed even more lives with its grossly subconstitutional process designed to expel male students, whether guilty or not, from colleges and universities lest any accuser be doubted.

By reinstating her to the position she held under the Obama administration, the Biden administration made clear that it was going to undo the revised Title IX regs implemented by DeVos which complied with the great many federal court decisions that required minimal due process for the accused and aspirational unbiased decision making from colleges. What KC Johnson sought under FOIA was to find out what private communications Lhamon had with “survivor” activists.

–Alexandra Brodsky
–Dana Bolger
–Brett Sokolow
–Kirsten Gillibrand
–Claire McCaskill
–Jackie Speier
–Brooke Jamison
–Sabrina Rubin Erdely
–Anna Laitin
–Know Your IX
–Laura Dunn
–Michele Dauber
–Wendy Murphy
–Michelle Anderson
–John Clune

In response, he got…nothing.

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).

Under the law, the DoE was required to respond within 20 days of the request.

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.

The “dirty little secret” of FOIA, another law filled with promise but lacking a meaningful enforcement mechanism, is that people with information they want to conceal can simply fail to respond, ignore the law and shift the burden to the requester to do something about it. Lhamon, no less shy about ignoring law than she is about violating the constitutional rights of male students, pulled a Lhamon. She ignored the request.

Fortunately, former Department of Education lawyer Hans Bader has taken on the cause by filing suit on behalf of KC. This, of course, is good for KC, as well as the rest of us who will benefit from the information he requested, but not every requester will be able to get a lawyer of Hans’ ability and experience to take on their cause. Even though the case may turn out well this time, it doesn’t cure the failing of FOIA when a government bureaucrat decides that complying with the law isn’t what she feels like doing.

And as Hans points out, KC’s request is, in fact, not merely reasonable, but quite modest.

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.

As a former DoE lawyer, Hans is very familiar with the “unusual circumstances” arising from extreme and overbroad demands. This was the exact opposite, a highly refined, very limited request that could be completed in minutes, if there was any good faith interest in complying with the law at all.

And so Hans has filed suit in the D.C. District Court to compel the Department of Education to comply with the law and provide the requested information about the secret  private communications between Catherine Lhamon and activists and activist groups determined to push Title IX back into the unconstitutional and improper position of allowing colleges to railroad male students without giving them any meaningful chance to defend themselves against accusations, real or spurious.

Perhaps the end result will be that Lhamon engaged in no inappropriate communications, no conspiracies or promises designed to undermine the law to achieve her sexist ends. But if that were so, then she would have little motive to conceal her communications and to violate FOIA and deny them to KC Johnson. That Hans Bader is willing to take up KC’s cause is very much appreciated, as FOIA’s promise means nothing when it requires a requester to sue in federal court when an agency decides to ignore its lawul duty and conceal its impropriety.