Storm clouds are gathering over Sunshine Week

A 2010 Knight Open Government Survey commissioned by George Washington University’s National Security Archive found that only 13 out of 90 agencies had actually made concrete changes in their FOIA procedures. One year later, the 2011 Knight Open Government Survey found that only a few more than half of the federal agencies complied. According to Eric Newton, senior advisor to the president at the John S. and James L. Knight Foundation, “At this rate, the president’s first term in office will be over by the time federal agencies do what he asked them to do on his first day in office.”

My organization is one that is experiencing the difference between the rhetoric of sunshine and the reality of stonewalling. In our case, the U.S. Department of Education has repeatedly failed to comply with the law and produce documents related to a routine FOIA request. Under FOIA, the department has 20 business days to respond to the FOIA request. The department dragged its feet when responding to an Oct. 15, 2010, FOIA request from the Coalition — the agency didn’t start producing documents until January 24, 2011.  This week, the department “fulfilled” our FOIA request, six months after the original request was filed and one month after its original court-approved deadline, by providing only 1,900 pages of documents and denying the Coalition access to 37,000 pages.

It’s a similar story of delay with a second FOIA request filed Nov. 12, 2010. The department didn’t begin providing the Coalition with documents until Feb. 4, 2011.

In both cases, the Coalition had to seek court intervention to compel the department of Education to provide the documents requested in the FOIA — hardly an open and transparent government.

Why is the department so opaque in the face of the President’s pledge of transparency?
Our requests deal with the department’s process for establishing its proposed gainful employment rule. There is strong evidence that senior officials at the department welcomed the influence of Wall Street short sellers — those who “bet short” on career college stocks, brought little to the table, but stood to gain billions of dollars financially from greater regulation of career colleges.

To date, the small amount of materials the Coalition has received from the department confirms the lengthy and regular communication between department officials and short sellers. These documents show that the department followed the pathway prescribed by the short sellers to build support for its gainful employment regulation and provide testimonials against career colleges. Yet, this information comes only from the drip, drip, drip of documents from the department.

In an administration that hasn’t pledged itself to transparency, this type of delay could be rationalized. In fact, under previous administrations that didn’t make commitments to openness, delays and obstructions might even make tactical sense. But it’s time for this government to live up to its promises. The department has even been evasive when asked by Congress about short sellers’ influence on the gainful employment rules.

Sunshine Week should be about more than just proclamations and press releases, it should be about shining a light on the good — and bad — in our government and keeping citizens informed about their government’s actions.

Penny Lee is the Managing Director of the Coalition for Educational Success, which represents many of the nation’s leading career colleges in advocating policies that support wider access to higher education.