The Most Transparent Administration in the History of Administrations

By Glenn Bogart, J.D.

When I started my consulting business in 1992, I used to submit Freedom of Information Act requests frequently, in order to obtain what was then called the monthly Program Review Status Report. This report, which was a management tool of the program review activity at the Office of Federal Student Aid (now known as FSA), listed schools which had recently had program review visits. Once I received the report, I would send letters to the proprietary schools on the list, to offer my response and appeals services.

I was able to get a little business out of that.

After I had been receiving these reports for quite awhile, a new bureaucrat was appointed to head the program review office in Washington. Wish I could remember his name. This guy decided he would no longer process my FOIA requests. I appealed that decision to the Secretary. I won. Shortly thereafter, said bureaucrat disappeared. Good riddance.

Lately, I decided I would like to have a little more program review appeal business. The way to get that is to write to schools that have had program reviews recently. But you can’t do that unless you know who they are.

So I sent in a FOIA request asking for recent program review status reports or their modern equivalent, and waited, and waited.

After a few months, I filed an appeal of this de facto denial of my request.

The next day, I heard from the FOIA appeals lady, who said my request would be fulfilled the next day, and asked me if I would therefore withdraw my appeal. Foolishly, I said, “Sure.”

The next day I received a letter directing me to the Web page listing Final Program Review Determinations. Unless the program office people CAN’T READ, they knew this “response” was non-responsive. I asked for an apple. They gave me an orange. Nothing wrong with oranges, of course – but they aren’t apples.

So, I wrote back to inform the FOIA person that what I got wasn’t what I’d requested. Here is what she said in reply:

Dear Mr. Bogart,

My apologies. The Federal Student Aid office notified me that they no longer produce or have a need to maintain the report that you are seeking in their response to the FOIA office. I mistakenly overlooked that information.

In order to provide you that type of report they would have to create a document to respond to your request.

The FOIA does not require agencies to create documents to respond to FOIA requests. As the FOIA only requires agencies to provide readily reproducible documents in response to FOIA requests.

The Higher Education Act also prohibits the Department of Education from providing program review reports to requesters.

Again, my apologies for any inconvenience this may have caused.

Interested in how I reacted to this? Here you go.

Thank you for your speedy response. I do understand that an agency is not required to create a report in order to respond to an FOIA request.

However, I must say I find it hard to credit the statement that FSA no longer produces or has a need to maintain a report listing colleges that received program review visits in a given period. It may be that such report is never printed, and the people who need the information look at it on their computers, but it would be impossible to manage the regional offices without that information.

FSA expects me to believe that, if the Secretary were to summon the head of FSA into his office and asked, “Which schools did your program review officers visit last month?” the answer would be, “Beats me. We don’t keep track of that information.” If that really would be the scenario, the government is in worse shape than I ever imagined. But even I can’t believe this is true. I believe it is a lie.

I wish to re-open my earlier appeal. This cannot stand.

Glenn Bogart

FOIA lady responded to the effect that she would send me a formal denial of my FOIA request. That was three months ago, and I am still waiting. Evidently their policy is to wait until the wheel squeaks again before actually doing anything. So I squeaked again recently.

Here’s the latest response.

Mr. Bogart,

My computer and network crashed at that time and I was unable to recover any of my emails and files that I was maintaining. I will send you a new letter by c.o.b. today.

Well, these things happen in the government, don’t they? Look at the IRS and the State Department. These people apparently have never heard of backup systems.

Here’s the thing. Career Education Review readers are aware that I offer program review response and appeals services. Unfortunately, many people who are not subscribers don’t know that, and don’t know where to turn when they receive an adverse program review report. I just want to be able to let them know I’m out here and may be able to help. To do that, I have to know who they are. The government would rather not allow them to know that help, at a reasonable price, is available.

I really think that’s all this amounts to. Just like the last time. These jackals want to make sure they are not opposed by someone who is capable of kicking their butts when they’re wrong.

There’s nothing in the Freedom of Information Act that says there’s anything wrong with my using it for commercial purposes. Newspapers and websites do it all the time. They do it in order to sell content. I do it in order to sell myself. No difference, really.

Somewhere within the Department of Education’s computer system, the information I seek exists. It has to be there, if the Department is to be able to know what it’s doing. They claim that since they never print that information in the form of a report, they don’t have to make it available to the public.

I say, nonsense.

The Freedom of Information Act is designed to allow the public to request and receive information.

It’s right there in the name of the law! The government has all sorts of information on its computers, that used to be typed on paper. Are they trying to tell me that anything they put into a database is now secret, and not susceptible to a FOIA request?

I don’t think so.

It may take me a year or so, but they are gonna lose this one. Just like they lost the earlier one. It’s just a darned shame that a guy has to fight with the government in order to get them to do what the law requires them to do. You’d think the government would be eager to follow the laws that it has created. Not these days.

Glenn Bogart, J.D. is a Title IV compliance consultant who specializes in school compliance reviews and Department of Education program review responses and appeals. A former ED program review officer, he holds a bachelor’s degree in government from Southern Illinois University, and earned the Juris Doctor degree at Western New England College in 1986. He resides in Birmingham, Alabama, but travels all over the U.S.

Mr. Bogart started his consulting business in 1992, after having served briefly as director of internal audit and compliance at Phillips Colleges, Inc., and prior to that as corporate vice president for financial aid for another large group of proprietary schools. Over the years, he has contributed frequently to these pages.

Contact Information: Glenn Bogart, J.D. // 3603 Buck Horn Cove Birmingham, AL 35242 // 205-249-5453 // glennbogart@aol.com // www.glennbogart.com