Lis Kidder is a parent of two students at Latin American Montessori Bilingual Public Charter School and a lawyer in Washington.
D.C. Council member Charles Allen (D-Ward 6) introduced a bill to expand the Freedom of Information Act to public charter schools. FOIA allows anyone to obtain any records of an organization unless the records are subject to certain limited exemptions. While I applaud the goal of transparency, the bill as written would do more harm than good.
Transparency, when applied properly, ensures that the District and its residents have access to essential information about every school: academic performance, budgets, discipline and suspension rates, measures of equity, and more. This allows the community to ensure schools are working for the children they serve, and it allows individual families to make informed decisions about where to send their children to school. As a District resident, and as the parent of two children attending a public charter school, I support building a transparent system.
However, Allen’s bill to make individual charter schools subject to FOIA requirements worries me greatly, because it would expose individual charter schools to unknowable and unlimited legal costs.
As a FOIA attorney, I have seen the serious financial consequences that FOIA can have on small organizations. Each FOIA request requires lawyers to interpret the request, craft a list of keywords to search against the organization’s records, review responsive documents to check for relevance and any applicable exemptions, redact privileged information, and sometimes litigate if the requester disputes the adequacy of the response. While some FOIA requests are narrow and can be dispensed with quickly, others implicate tens or even hundreds of thousands of documents that counsel must review. Think about how many professional emails are sent and received every day, and how many could be relevant to a FOIA keyword search.
A complete FOIA response requires between 25 and 50 hours of lawyer time, on average, and costs between $10,000 and $20,000, including lawyers’ fees and other expenses. Of course, requests that are larger or that involve court disputes can cost many times these amounts. These costs are almost always borne entirely by the responding organization, because FOIA requesters are typically granted fee waivers. This means that just one or two FOIA requests to a public charter school could easily consume one or more teachers’ salaries and force the cancellation of art and music classes, field trips, and other programming that makes our schools thrive.
It has been suggested that public charter schools could avoid these legal fees by requiring their own administrators to comply with FOIA by themselves. But it is unreasonable to expect school administrators to spend days or weeks on end processing FOIA requests instead of running their schools. School administrators are educators, not legal experts, and FOIA imposes consequences if it is not complied with correctly. Schools and their administrators also could face legal consequences for violating the various privacy acts relating to school records, such as the Family Educational Rights and Privacy Act and the Individuals with Disabilities Education Act. Even if a school did everything right, an unsatisfied FOIA requester could still file a lawsuit.
Practically speaking, Allen is seeking to force charter schools to divert resources from academic and cultural programming and put them toward legal fees.
But what about D.C. Public Schools? D.C. public schools do not face the same risk from FOIA, because DCPS schools do not pay the cost of FOIA out of school budgets, and school leaders are not expected to handle FOIA reviews. Instead, FOIA requests directed to DCPS are paid out of dedicated central funding and are handled by legal staff at the DCPS Office of the General Counsel. It is ironic that advocates of Allen’s bill argue that District charter schools should be subject to FOIA so that they are treated the same as DCPS schools, when the truth is that the bill would impose significant costs and burdens on charter schools that DCPS schools are not required to bear.
I endorse Allen’s goal of transparency, but the current version of his FOIA bill would benefit lawyers and harm children. We need to have a discussion about how to improve school transparency in a way that does not take away what schools should really be focused on: educating and nurturing students.