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9486 in the collection
Ask the Feds a Question and What It Takes to Get an Answer
Ohanian Comment: Kudos to Lynn Schore, a mom on the money trail, for pursuing this outrage.
NOTE: Vicki Phillips left her post as Portland superintendent of schools, ending what The Oregonian termed a three-year tenure of hard choices, change and conflicts--and what teachers termed a three-year tenure of despotism and misery.
We must all take an interest in Vicki Phillips' career because she left Portland to become director of the education strategy and grantmaking for the Bill and Melinda Gates Foundation. As a Portland teacher noted, this makes her the (thus-far) undeclared National Superintendent of Education. Truly, because money talks so loudly in this country, it makes her, by default, the nation's Director of Education, in control of $3 billion smackers.
NOTE 2: Notice that it took the intervention of a member of Congress for this Freedom of Information request to be acknowledged. The Coalition of Journalists for Open Government has a website on FOIA issues. They have published a PDF document, An in-depth analysis of FOIA performance from 1998 to 2006.
Remember: We are all in this together.
August 8, 2007
Lynn Schore
Steven Linder
August 29, 2007
VIA HAND DELIVERY: 1220 SW 3rd Ave. Suite 585, Portland OR 97204
Honorable Senator Ron Wyden
230 Dirksen Senate Office Building
Washington DC 20510
Subject: Federal Ockley Green Arts Magnet Grant
Re: Request for Senator Wyden's Assistance re Freedom of Information Act Appeal 06-00805-F
Dear Senator Wyden:
Thank you for your letter dated 4/10/07 addressing my concerns about the above Freedom of Information Act (FOIA) request regarding the Ockley Green Arts Magnet Grant for the Jefferson Cluster, Portland Public Schools ("PPS"). Your letter stated that you took the liberty of forwarding my inquiry regarding the delinquent government FOIA response to Secretary of Education Margaret Spellings; you asked her to reply to me directly.
Very likely due to your efforts, I received the United States Department of Education's ("Department's") response to my 6/6/06 FOIA request on 7/10/07 – more than one year after my initial request for 15 items was filed. I sincerely appreciate your help in finally getting these documents. The new documents did confirm some concerns regarding increasing segregation in PPS related to the Kenton to Chief Joseph closure / merger, and the Applegate to Woodlawn closure / merger. Unfortunately, the Department withheld numerous documents, and refused to answer at least seven questions. (Portland Public Schools, in a 6/9/06 response from then Jefferson Cluster Director Harriet Adair to my letter of inquiry to Superintendent Phillips, also refused to answer these and other questions.) In addition, the Department redacted large portions of requested information, claiming the documents are exempt under three of the FOIA law's narrow statutory exemptions (exemptions b4, b5 and b6). See Appendix I / Case Law.
I filed the attached Appeal of Denial of Documents on 8/15/07, which was timely under the FOIA Appeal process.
We are writing now to kindly request that you take continued action on our behalf, and on behalf of the citizens of Portland. Your letter stated that we should keep you apprised of the situation, and should contact you if you might be of further assistance in this matter.
We request that you help support our FOIA Appeal. Please help us challenge the withholding of these public documents regarding a taxpayer-financed desegregation / arts & technology grant to a public school system. In addition, please challenge the Department's complete redaction of other critical public documents requested.
We respectfully request that your offices:
1. Help us obtain the documents withheld and redacted by the Department.
For your information, we have included in Appendix I some of the case law that we believe supports our Appeal position.
We would also like to let you know that community members have just provided me a full copy of the MSAP grant, so we no longer need that one document from the Department. We still need the other withheld and redacted documents.
2. Provide a full accounting of the MSAP grant monies, including a review of the federal government's "GAPS drawdown ledger" for this grant, and any other pertinent documents.
Help us determine if grant funds were lost due to decisions made locally by PPS. If grant funds were lost, how much money was lost from the original grant allocation of approximately 5.2 million dollars for Kenton, Applegate, Ockley and Jefferson?
If possible, we also request that you make efforts to determine what portion of the money went to students, teachers and programs in the Jefferson Cluster, versus what portion went to grant oversight groups, outside (non-PPS) educational consultants, grant consultants, and travel, hotels, and extraneous expenses.
3. Hold a meeting with Jefferson families and your office regarding this grant issue to discuss our concerns.
4. Please review Appendix II / Testimony regarding former Superintendent Vicki Phillips' promises to the community concerning the disposition of this grant, along with comments by School Board member David Wynde. Appendix II also includes the testimony of former Kenton elementary parents Yvonne Gibson, Jim Hartley, Alisha Owens and Matt Syvmbersky.
On March 3, 2005, former PPS Superintendent Vicki Phillips made the following promises to the Jefferson community:
TESTIMONY FROM THE 3/3/05 PPS BOARD MEETING RE SCHOOL CLOSURES AND JEFFERSON RECONFIGURATION / JEFFERSON HIGH SCHOOL CAFETERIA
Board Member David Wynde: That's a very good question and I'm going to ask the Superintendent to speak to that right now.
SUPERINTENDENT PHILLIPS: Just since several people have asked about the grant, the grant will not go away and we are working to see how it can follow students because it was around how do we follow certain students and let them feed through. So we're working with the feds. The grant should not be in jeopardy. It will continue to support the schools that are already in it. The students from Applegate and Kenton that were involved in it, we should be able to continue to support in their new schools. Because many of them will go to Chief Joseph, for example, and it will already, Chief Joseph is in the grant. The other one is the Woodlawn.
Jim Hartley: They're not in the grant.
SUPERINTENDENT PHILLIPS: I thought you just said Chief Joseph is in there.
Jim Hartley: Chief Joseph is not in the grant.
SUPERINTENDENT PHILLIPS: I'm sorry, I'm sorry, we are … I can tell you that the staff in the school and particularly in Ockley Green, and that staff at the district, are working tirelessly to revamp the grant with the feds so that it stays and it follows all the kids as was promised.
Parent (inaudible)
SUPERINTENDENT PHILLIPS: As we, we will work to get you that information and get you a more permanent date and to show you how it will flow. Because we are working on that ourselves because we want to be assured and if something were, if a piece of it couldn't follow exactly the ways, we want to figure another way to put resources in. Our commitment is not to diminishing programs, it is to stabilizing and expanding and supporting.
Parent Toye Jones: What was the objective of the grant? Why was it awarded?
SUPERINTENDENT PHILLIPS: To create the kind of arts pathway up through the cluster that we talked about a little bit earlier. And our commitment to that is not diminishing.
Parents: Inaudible.
David Wynde: Excuse me, I'm sorry, I'm sorry.
SUPERINTENDENT PHILLIPS: It's enough.
David Wynde: Excuse me, excuse me, if you need to talk to that gentleman, please do that quietly off there. He asked the question (Jim Hartley), I changed the format of the meeting to get an answer from the Superintendent.
She has said that we're working with the federal Department of Education, who made the grant, to amend the grant in order that the schools that were originally identified in the grant, as you outlined, continue to get the money, and that the students in the schools continue to benefit in the way that the Superintendent described. This Proposal is for the creation of an Arts Magnet K through 8 at Ockley Green. The money will be used for that, and it will also be used to support the kids in those schools.
Former Superintendent Phillips made the promise again on 3/28/05. PPS's own Board of Education Meeting Minutes for this well-attended 3/28/05 public meeting at Blanchard state:
"The Superintendent noted that the Ockley Green recommendation was modified to include language that would give preference to middle school students in the Ockley Green attendance area. She assured that the $5.2 million federal grant would not be at risk but would follow the students it was intended to serve."
CONCLUSION
Your past help in this matter is very much appreciated. You could be instrumental in getting us the complete set of documents requested from the Department of Education in our FOIA, and in getting professional auditors and civil rights experts involved in reviewing this taxpayer-funded federal grant and its implementation.
As stated in my Appeal, the citizens of Jefferson deserve to know how much grant money was finally appropriated to our school district, how much money actually came in to the Jefferson Cluster, how that money was spent, who benefited, and what is left (if any) of the grant award. The MSAP grant period ends on 9/30/07. Due to Department's withholding of key information, we may not be able to benefit Jefferson area students by affecting the disposition of the grant during the grant period.
A democracy cannot function unless its citizens are allowed to know what the government is up to! Please help my family and the families of the Jefferson area by supporting our FOIA Appeal, and by holding a meeting on this important issue. We need to answer the question of whether Portland Public Schools and its administrators have taken millions in federal grant dollars to remedy racial isolation in the Jefferson area, and then acted counter to the mission and spirit of that federal grant.
Very truly yours,
Lynn S. Schore
Steven E. Linder
9468 SW 62nd Drive
Portland, OR 97219-9105
(503) 245-0870
linderschore@comcast.net
cc: Glenda Walker, President, Jefferson High School PTSA
Steve Kayfes, Jefferson High School PTSA, Kenton
Neighborhood Association
Nancy Smith, Jefferson High School PTSA and Site Council
Richard and Toni Watson, Kenton Neighborhood Association
Annie Graves, Jefferson High School PTSA, Ockley parent
Jim Hartley, Kenton Neighborhood Association; Ockley parent;
Chief Joseph parent
Steve and Nancy Rawley, Chief Joseph PTA; Jefferson PTSA
Andrea Linder, Kenton Neighborhood Association
Chris Wheby, Kenton Neighborhood Association
Matt Syvmbersky, Kenton Neighborhood Association, Chief Joseph parent
Alisha Owens, PPS parent
Yvonne Gibson, Fernwood parent
Calvin Henry, President, Oregon Assembly for Black Affairs
Will Gamble, Education Committee, Oregon Assembly for Black Affairs
Neighborhood Schools Alliance Steering Committee
APPENDIX I: LEGISLATIVE HISTORY / CASE LAW SUPPORTING FOIA APPEAL
I have attached an August 8. 2007 study by the Coalition of Journalists for Open Government entitled "Still Waiting After All These Years – An in-depth analysis of FOIA performance from 1998 to 2006." The study shows that the Department of Education granted only 26% of FOIA Appeals in 2005, and 15% in 2002 (see article Chart re "The Results of FOIA Appeals By Agency").
Legislative history, and case law regarding unreasonable FOIA delays, supports my Appeal. Though the law might be on my side if I were to file suit in this matter, it is not clear where I would find the resources to support such a lawsuit at this point. My husband and I, along with our friends in the Jefferson community, have already put a lot of personal time and resources into this grant review effort (which we thought would be more straightforward and easier than it has been).
The federal Department of Education failed to make a determination within the 20-day statutorily prescribed time period, 5 U.S.C. § 552(a)(6), and failed to timely release all responsive, non-exempt documents requested in my 6/6/06 FOIA. The legislative history of the FOIA shows that Congress considers the full and fast release of information to be “the basic objective of the Act.” H. Rep. No. 876, 93d Cong., 2d Sess., reprinted in 1974 U.S. Code Cong. & Admin. News 6267, 6267. Congress specifically noted its concern regarding prolonged agency delay, stating that “information is often useful only if it is timely. Thus, excessive delay by the agency in its response is often tantamount to denial. It is the intent of this bill that the affected agencies be required to respond to inquiries and administrative appeals within specific time limits.” Id. at 6271. In my case, statutorily prescribed time limits were ignored by the Department.
Courts have also recognized that “unreasonable delays in disclosing non-exempt documents violate the intent and purpose of FOIA, and the courts have a duty to prevent these abuses.” Long v. IRS, 693 F.2d at 910; see also Payne Enterprises, 837 F.2d at 491.
In Gilmore v. U.S. Dept. of Energy, 33 F.Supp.2d 1184 (N.D. Cal. 1998), plaintiff’s FOIA request went unanswered for several months before it was eventually denied in its entirety. Id. at 1184. The court found that plaintiff had an “independent cause of action” for the DOE’s failure to respond within statutory time limits, even though the documents were later correctly determined not to be subject to disclosure. Id. at 1186.
Thus, “an agency’s failure to comply with the FOIA time limits is, by itself, a violation of the FOIA, and constitutes an improper withholding of requested documents.” Id. at 1187 (citing McGehee v. CIA, 697 F.2d 1095, 1110 (D.C. Cir. 1983)). The court thereby denied DOE’s motion to dismiss, retaining jurisdiction over plaintiff’s claim that the DOE had a pattern or practice of untimely responses to FOIA requests. Id. at 1188.
Likewise, I exercised my right to seek information pursuant to the Freedom of Information Act, but only after your office's intercession through the Secretary of Education did the Department actually provide a portion of the requested documents. Even if the Department’s reliance on the three narrow statutory exemptions was found lawful, the agency still failed to make its determination and notification within the statutory time limits.
Department's actions constitute an “improper withholding.” As was the case in Gilmore, I would be entitled to seek a declaratory judgment that the Department's failure to comply with FOIA time limits was unlawful, and to seek an order enjoining the Department from failing to process FOIA requests within the statutory period. Id. at 1186.
The Gilmore court also noted that the plaintiff had already filed another FOIA request while the litigation was pending and that the filing of an additional request had been discussed. Id. at 1189. These facts supported the court’s view that the plaintiff had “procedural standing” to seek an injunction requiring the agency to adhere to the FOIA time limits in the future. Id. Due to the nature of my interests in this grant, I and other community members will continue to file other similar FOIA requests in the future.
I have already suffered an injury in fact --- an invasion of a legally protected interest --- with respect to the specific FOIA request at issue. In short, Department's failure to make its decision within the statutory time limit has, and is reasonably expected to continue to, result in improper withholdings of agency records in violation of the FOIA. “Congress rejected a proposal by the Senate to extend the deadline to reply to a FOIA request for another thirty working days under certain conditions.” S. Conf. Rep. No. 1200, 93d Cong., 2d Sess.1974, reprinted in 1974 U.S. Code Cong. & Admin. News 6285, 6289. One district court observed, “There can be no doubt that Congress took these deadlines very seriously.” Gilmore v. U.S. Dept. of Energy, 33 F.Supp.2d 1184, 1187 (N.D. Cal. 1998).
Though my FOIA request for Department records was properly submitted, Department failed to comply with 5 U.S.C. 552 (a) (6) (A) (i) and inform me of its decision to withhold and redact records within 20 business days. The Department also should have informed me of the reasons for its decision, my right to Appeal, and the contact person for an Appeal, within 20 business days. Department did not do any of these things for over one year, despite my repeated phone calls.
I have specific objections to the Department's use of statutory exemptions b4, b5 and b6. Let me know if you would like to see these arguments.
APPENDIX II: PUBLIC TESTIMONY
TESTIMONY FROM THE 3/3/05 PPS BOARD MEETING RE SCHOOL CLOSURES AND JEFFERSON RECONFIGURATION / JEFFERSON HIGH SCHOOL CAFETERIA
Yvonne Gibson, 2005 Kenton parent / now Fernwood parent
Will children who currently attend Kenton and Applegate but live outside the boundary be allowed to merge with their friends? And here's the biggest one: What's going to happen to the 5.2 million dollar grant Ockley Green was to receive and share among neighboring schools? You're closing two of the three that were to benefit!
Jim Hartley, 2005 Kenton parent / now Ockley and Chief Joseph parent
This is such a powerful meeting tonight. I have a lot of questions about what's going to happen to Kenton, but I guess what I want to know really is what happened to this (holding up the grant)? It's the grant that was awarded to what is called the Public Schools of the Jefferson Cluster Magnet Project … It was awarded to us in October of this (school) year. Now, two of the schools are disappearing. And they were rewarded, they were part of this cluster program because they qualified. And my kids will now have to move to another grade school which wasn't included in this grant.
All the children from our school who qualified for that grant will be moving to that school, and I need to know if the money is moving with them.
I'd like to know where the money is. I'd like to know where the money IS. I'd like to know how the money is distributed. These questions need to be answered before we continue – not tonight, but I mean, continue with the process. Thank you.
Board Member David Wynde: That's a very good question and I'm going to ask the Superintendent to speak to that right now.
SUPERINTENDENT PHILLIPS: Just since several people have asked about the grant, the grant will not go away and we are working to see how it can follow students because it was around how do we follow certain students and let them feed through. So we're working with the feds. The grant should not be in jeopardy. It will continue to support the schools that are already in it. The students from Applegate and Kenton that were involved in it, we should be able to continue to support in their new schools. Because many of them will go to Chief Joseph, for example, and it will already, Chief Joseph is in the grant. The other one is the Woodlawn.
Jim Hartley: They're not in the grant.
SUPERINTENDENT PHILLIPS: I thought you just said Chief Joseph is in there.
Jim Hartley: Chief Joseph is not in the grant.
SUPERINTENDENT PHILLIPS: I'm sorry, I'm sorry, we are … I can tell you that the staff in the school and particularly in Ockley Green, and that staff at the district, are working tirelessly to revamp the grant with the feds so that it stays and it follows all the kids as was promised.
As we, we will work to get you that information and get you a more permanent date and to show you how it will flow. Because we are working on that ourselves because we want to be assured and if something were, if a piece of it couldn't follow exactly the ways, we want to figure another way to put resources in. Our commitment is not to diminishing programs, it is to stabilizing and expanding and supporting.
Parent Toye Jones: What was the objective of the grant? Why was it awarded?
SUPERINTENDENT PHILLIPS: To create the kind of arts pathway up through the cluster that we talked about a little bit earlier. And our commitment to that is not diminishing.
Parents: What about technology, it was supposed to be for technology.
David Wynde: Excuse me, I'm sorry, I'm sorry.
SUPERINTENDENT PHILLIPS: It's enough.
David Wynde: Excuse me, excuse me, if you need to talk to that gentleman, please do that quietly off there. He asked the question (Jim Hartley), I changed the format of the meeting to get an answer from the Superintendent.
She has said that we're working with the federal Department of Education, who made the grant, to amend the grant in order that the schools that were originally identified in the grant, as you outlined, continue to get the money, and that the students in those schools continue to benefit in the way that the Superintendent described. This Proposal is for the creation of an Arts Magnet K through 8 at Ockley Green. The money will be used for that, and it will also be used to support the kids in those schools.
Alisha Owens, 2005 Kenton parent
I am a parent of a third grader at Kenton Elementary. First of all, I would implore the Board to slow this process down significantly. We as a parent group have been scrambling to put together a response to this Proposal. Kenton and other schools were the recipient of part of a 5 million dollar federal grant meant to increase academic achievement, and decrease isolation of low income and minority populations.
These schools qualified for their grant because of their special status as being challenged schools. At Kenton, there's a high percentage of low income students, it's greater than 70%. There's a high percentage of special ed students, greater than 20%. This situation can mean decreased parent participation. I know as a working single mother that the lifestyle afforded by poverty and full time work is not necessarily conducive to volunteering and PTA meetings.
It's easy to feel that these closures are affecting a population that is often not seen or heard. These closures are disproportionately affecting North and Northeast Portland, as has been said here tonight. It is because of the status of many of these students as low income and minority that they need extras, and it is presumably because of this that the federal government saw a need great enough to merit investment in schools that are worth fixing.
Research consistently shows that small schools are beneficial for at-risk populations, in other words, low income and minority populations. Experience tells me that because our school is small and neighborhood-based, I as a parent and community member am able to know and help children I recognize to be in need – such as children in my neighborhood who show up at my house locked out of their home with nowhere to go …
I would ask what the District does to address the low capture rates of schools such as Kenton. Do they close schools and sell them to commercial interests? We were told by a District representative at a recent meeting that we had to realize that we "were sitting on a very valuable piece of property." You have to understand, that's very difficult for us to hear. I consider children to be more valuable than property!
The best way to retain students in the future is to invest in neighborhood schools, and make full use of the resources available. If you ask that the people of Portland, particularly the people of North and Northeast Portland, not give up on public schools, don't close them and abandon resources available to save them.
Matt Syvmbersky, 2005 Kenton parent
We have many, many, many questions … Now obviously we've talked about the federal grant. I would assume for most people, that's the first time they've ever heard or seen about the 5.2 million federal grant, and I wonder why that is. I just wonder why that is. We want to know what's going to happen to the 5.2 million dollar grant. And to have Dr. Phillips respond feels more like its shooting down my friend Jim Hartley than actually clarifying things. So, we feel like unless these questions can be answered prior to the process, your timeline, I don't know if we can support that at Kenton. We feel very strongly about supporting our kids. 5.2 million dollars for this cluster, if you will, is an opportunity that we've seen way too many of get passed by. We don't see the innovative programs in North Portland, and this was our opportunity. 5.2 million dollars was our OPPORTUNITY!
We can't lay down. We can't lay down and watch that one walk right by us. Thank you very much.
— Lynn Schore and Steven Linder
letter
2007-08-08
INDEX OF OUTRAGES
Pages: 380
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