Clery Act complaints and violations in NH

To Whom It May Concern:

This is a request under the Freedom of Information Act. I hereby request the following records:

Any and all Clery Act complaints filed since 2004 involving schools in New Hampshire, as well as all records of violations of the Clery Act recorded since 2004 involving schools in New Hampshire.

I also request that, if appropriate, fees be waived as I believe this request is in the public interest. The requested documents will be made available to the general public free of charge as part of the public information service at MuckRock.com, processed by a representative of the news media/press and is made in the process of news gathering and not for commercial usage.

In the event that fees cannot be waived, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires.

Sincerely,

Jim Haddadin

U.S. Department of Education
Office of Management
400 Maryland Avenue, SW, LBJ-2W311
ATTN: FOIA Appeals Office
Washington, DC 20202-4500

To whom it may concern,

I hereby appeal the decision of the U.S. Department of Education’s Office of Management, Privacy, Information, and Records Management Services, to withhold in full all records regarding Clery Act complaints and violations filed since 2004 involving schools in New Hampshire.

By letter of July 18, 2014, I requested access to and copies of those records from the U.S. Department of Education. My request was sent to the Office of Management and assigned FOIA Request No. 14-01805-F.

I was notified by letter of Aug. 6, 2014, that the Office of Management rejected in full my request. The agency offered two categories of exemptions to justify its decision to withhold the public records I requested: one regarding “records or portions of records relating to personal information”; and another regarding “records or portions of records relating to personal information that was compiled for a law enforcement purpose.”

Accordingly, I will address the reasons why the agency erred in its decision to withhold the records I requested in two sections below. My response concludes with examples of the U.S. Department of Education’s longstanding tradition of disclosing the type of records I am seeking.

1. “Records or portions of records relating to personal information” (Exemption 6)

The Office of Management asserts that it must withhold the records I am seeking in their entirety because the records -- or portions of the records -- are exempt from disclosure under both 5 U.S.C. §552 (b)(6) and departmental regulation 34 CFR § 5.71(a).

The portion of the FOIA law in question (referred to as “Exemption 6”) provides an exemption from disclosure for “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”

In order to withhold materials under Exemption 6, the department must first determine whether the information at issue is covered by the exemption; and, if so, determine whether disclosure would constitute a “clearly unwarranted invasion of personal privacy." Doing so requires balancing the privacy interest that would be compromised by disclosure against any public interest in the requested information.

I concede that some portion of the records I am seeking could conceivably contain information that is covered under Exemption 6. For instance, complaints regarding potential violations of the Clery Act could contain the names of those who filed the complaints. Those individuals might not want to be identified.

However, it is unlikely that every record I am seeking -- and for that matter, every portion of every record I am seeking -- contains personal information. Records that document violations of the Clery Act are not necessarily spurred by complainants. The department can initiate investigations of its own volition and determine violations have occurred.

To the extent that any portion of the records I am seeking contains personal information, there is a remedy: The department can simply redact portions of the records that cannot be released. All other portions of the material can -- and must -- be disclosed under 5 U.S.C. §552 (b), which states:

“Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.”

Departmental regulation 34 CFR § 5.71(a) does not limit the department’s ability to release segregable material under the Freedom of Information Act. The regulation simply states that “certain types of information” cannot be disclosed, such as “information of a private and personal nature." Redaction would adequately address any privacy concerns raised by the regulation.

Furthermore, the Office of Management failed to recognize the significant interest in public disclosure. The records I am seeking will substantially illuminate the activities of the U.S. Department of Education and the ways in which it monitors compliance with the Clery Act. These same records will shed light on the activities of schools that receive federal education funding, thereby falling under the purview of the Clery Act.

Among its chief functions, the Clery Act requires schools to track incidences of sexual violence on campus, and to establish protocols to report such incidents when they occur and respond appropriately.

The failure to protect students from sexual violence and assist victims has recently been recognized as a national crisis. Congress is actively considering legislation that would address sexual assault on college campuses and increase transparency and accountability for schools.

In the past, courts have found a public interest sufficient to override a privacy interest in cases in which disclosure would contribute to the public discussion of a policy issue. For example, in American Civil Liberties Union v. U.S. Department of Justice, the court cited the fact that Congress was addressing the central issue in the case -- warrantless cell phone tracking -- as evidence of the public interest in disclosure.

In this instance, the disclosure of records regarding compliance with the Clery Act would help the public understand the workings of the U.S. Department of Education and inform the ongoing policy discussion about how to protect students. Therefore, the interest in disclosure is paramount.

2. “Records or portions of records relating to personal information that was compiled for a law enforcement purpose” (Exemption 7(C))

The Office of Management also asserts that the records I seek are exempt from disclosure pursuant to 5 U.S.C. §552 (b)(7)(C) and departmental regulation 34 CFR § 5.71(c) because they relate to “personal information that was compiled for a law enforcement purpose.”

This FOIA provision (referred to as Exemption 7(C)), provides an exemption from disclosure for material that “could reasonably be expected to constitute an unwarranted invasion of personal privacy.”

Exemption 7(C) is substantially similar to Exemption 6; therefore, I incorporate the arguments above. In this instance, the public interest in disclosure outweighs any privacy concerns because the records I am seeking would substantially illuminate the activities of the U.S. Department of Education and contribute to ongoing policy discussions about sexual assault on college campuses.

In American Civil Liberties Union v. U.S. Department of Justice, the court held that the public interest in disclosure outweighs the privacy concerns raised in Exemption 7(C).

To the extent that any portion of the records I am seeking contains personal information that must be withheld under 7(C), redaction is still an appropriate remedy. The Office of Management has provided no justification for withholding the materials I requested in their entirety.

The Office of Management also has failed to explain its reliance on departmental regulation 34 CFR § 5.71(c), which provides for the withholding of information that was obtained by the department “in reliance upon a provision for confidentiality.”

Any information that was furnished under a confidentiality agreement can simply be redacted from the records. FOIA compels the Office of Management to catalogue the redactions in compliance with 5 U.S.C. §552 (b), which states in part: “The amount of information deleted, and the exemption under which the deletion is made, shall be indicated on the released portion of the record.”

The Office of Management also suggested that the records I requested were withheld in their entirety because they could “potentially come to be part of ongoing investigations involving schools in New Hampshire.” This phrasing seems to allude to FOIA exemption 7(A), which allows for the withholding of records that “could reasonably be expected to interfere with enforcement proceedings.”

However, the Office of Management did not invoke Exemption 7(A). The suggestion that records “could potentially” become part of an ongoing investigation has no nexus to the FOIA exemptions or departmental regulations cited by the Office of Management.

Furthermore, the fact that information “could potentially” become part of an investigation in the future has no bearing on the public’s contemporaneous right of access. The records have either been incorporated into an enforcement proceeding or they have not. FOIA does not provide an exemption for records in which law enforcement might some day take an interest.

3. Past precedent

Within the last 10 years, the U.S. Department of Education has disclosed scores of records that are identical to those I am seeking.

Since 2004, the department has conducted at least 48 investigations regarding compliance with the Clery Act by post-secondary institutions. The results of those investigations are readily available to the public online through the homepage of the Office of Federal Student Aid.

Those records explicitly state that they are subject to disclosure under the Freedom of Information Act. In 2011, for example, the U.S. Department of Education sent a "Final Program Review Determination" to the University of North Dakota outlining several concerns stemming from the school’s obligations under the Clery Act. A letter attached to the determination states that the document and any related attachments "may be subject to release under the Freedom of Information Act."

The decision by the Office of Management to withhold the records I requested in their entirety represents a new, unexplained and markedly different interpretation of FOIA than the Department of Education has relied upon in the past.

4. Conclusion

Neither of the FOIA exemptions cited by the Office of Management provide a justification to withhold records responsive to my request in their entirety. To the extent that any portion of the records I am seeking contains personal information that must be withheld, FOIA compels the Office of Management to release all other portions of those records that do not fall under Exemption 6 or Exemption 7.

I ask the agency to reconsider its decision to reject my FOIA request and release the records I am seeking. Pursuant to the requirements of FOIA, I request a response to this appeal within twenty (20) working days. Please contact me by phone if I can answer any questions or facilitate your review in any way.

Sincerely,

Jim Haddadin
(617) 863-7144
MuckRock News
Dept. MR 12626
P.O. Box 55819
Boston, MA 02205-5819

Mr. Wehausen,

My name is Jim Haddadin and I'm a reporter in New England. I'm writing to inquire about the status of my FOIA appeal, which was filed with the department more than five months ago.

For reference, my case was assigned appeal number 14-00051-A and FOIA request number 14-01805-F.

When we spoke on the phone several weeks ago, I understood that you planned to check with the department and provide me with a timetable for the case to be processed. I have yet to hear back from you and I'd appreciate an update on the matter. Please give me a call or send me a written response at your convenience.

Best regards,

Jim Haddadin
617-863-7144

Mr. Wehausen,

My name is Jim Haddadin and I'm a reporter in New England. I'm writing to inquire about the status of my FOIA appeal, which was filed with the department more than six months ago.

For reference, my case was assigned appeal number 14-00051-A and FOIA request number 14-01805-F.

When we spoke on the phone several weeks ago, I understood that you planned to check with the department and provide me with a timetable for the case to be processed. I also sent you an email on Feb. 6.

I have yet to hear back from you. I'd appreciate an update on the matter. Please contact me when you're available.

Best regards,

Jim Haddadin
617-863-7144

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on July 18, 2014. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #14-00051-A.

Thank you for your help.

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on July 18, 2014. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #14-00051-A.

Thank you for your help.

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on July 18, 2014. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #14-00051-A.

Thank you for your help.

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on July 18, 2014. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #14-00051-A.

Thank you for your help.

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on July 18, 2014. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #14-00051-A.

Thank you for your help.

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on July 18, 2014. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #14-00051-A.

Thanks for your help, and let me know if further clarification is needed.