July 8, 2022: Article updated to include FCSB’s Demurrer and Motion to Dismiss, Scott Brabrand’s FERPA/FOIA admissions during the May 26, 2022, school board meeting, additional information about the court case, addition correspondence, and responsive records provided by FCPS.
June 10, 2022: Article updated to include new information, to include information about retaliation and the scheduled hearing date.
June 2, 2022: Article first published.
Fairfax County School Board (FCSB) is headed to court over a Freedom of Information Act (FOIA) request.
This is the second time in nine months that FCSB’s FOIA-response-related actions (and inactions) have resulted in SpecialEducationAction.com being prevented from publishing internal Fairfax County Public Schools (FCPS, known as FCSB in court) documents. In addition, FOIA’d documents related to the first case apply to the case at hand.
In the case at hand, the FOIA’d records relate to the United States Department of Education Office of Civil Rights’ investigation into Fairfax County Public Schools (FCPS), which it announced January 12, 2021, along with its intention to investigate Los Angeles Unified School District (LAUSD) and Seattle Public Schools (SPS).
April 28, 2022, OCR announced LAUSD is at fault for civil rights violations and released the resolution reached following its investigation of LAUSD. Among its findings, OCR identified failures that occurred during COVID 19-related remote learning, many of which mirror what occurred with FCPS during the same time period. (Additional Reading: “Office of Civil Rights Finds Los Angeles Unified School District in Noncompliance, LAUSD Must Provide Compensatory Education to Students“)
First Case
FCPS/FCSB failed to prevail in the first case and Judge Richard E. Gardiner stated the case was “about as much a prior restraint as there ever could be” and characterized one of the Board’s arguments as “almost frivolous.” In addition, Gardiner stated the following:
“What we’re doing here is — what the defendants are doing is enforcing their rights under the First Amendment, and those rights, enforcing their rights under the First Amendment, is about as high in the public interest scale as you can get.”
Although, as Gardiner stated, it was a clear case of prior restraint, FCPS/FCSB proceeded with the case and spent what is believed to be over $300,000 on the case, which it filed against two Fairfax County residents who have children enrolled in Fairfax County Public Schools (Debra Tisler and myself). In addition, it released press statements that led the public to believe I published unredacted personally identifiable information about children to this site, which is not correct. Yet, FCSB’s own lawyer, Ryan Bates, acknowledged in court that no private information about children was published:
As far as we can tell, and I believe as — as to what was posted on the website, I think it was less than 1000 [pages] was actually posted on the website. And from what we can tell, they redacted all of the student names, and we appreciate that.
(Additional Reading: “Parents and First Amendment Prevail; Judge Rules Against Fairfax County School Board“, “Update on Fairfax County School Board’s Legal Action Against Parents“, and “Fairfax County School Board’s Legal Fees for Prior Restraint Lawsuit Against Parents Now Expected to Exceed $300,000“)
Case at Hand
In regard to the case at hand, I submitted a FOIA request, FCPS/FCSB delayed its provision of a quote until two days before its FOIA response was due, it accepted payment—and then it stated it needed up to a month to provide a full response. Thus, its quote was provided in bad faith.
When FCPS/FCSB provided its quote, it knew it would not be providing a response within the mandated timeline, but failed to advise me of this. Instead, I believed that upon receipt of payment, FCPS/FCSB’s response would be provided pursuant to § 2.2-3704(B), which states the following:
Any public body that is subject to this chapter and that is the custodian of the requested records shall promptly, but in all cases within five working days of receiving a request, provide the requested records to the requester or make one of the following responses in writing:
1. The requested records are being entirely withheld. Such response shall identify with reasonable particularity the volume and subject matter of withheld records, and cite, as to each category of withheld records, the specific Code section that authorizes the withholding of the records.
2. The requested records are being provided in part and are being withheld in part. Such response shall identify with reasonable particularity the subject matter of withheld portions, and cite, as to each category of withheld records, the specific Code section that authorizes the withholding of the records.
3. The requested records could not be found or do not exist. However, if the public body that received the request knows that another public body has the requested records, the response shall include contact information for the other public body.
4. It is not practically possible to provide the requested records or to determine whether they are available within the five-work-day period. Such response shall specify the conditions that make a response impossible. If the response is made within five working days, the public body shall have an additional seven work days or, in the case of a request for criminal investigative files pursuant to § 2.2-3706.1, 60 work days in which to provide one of the four preceding responses.
While FCPS/FCSB did respond within five working days, things fell apart from there.
May 10, 2022:
I submitted the following FOIA request to mshannon@fcps.edu and FOIA_Requests@fcps.edu:
This is a request for all of FCPS’s documents and correspondence and any other digital or print records between FCPS and OCR, which relate to the investigation and resolution, specifically for the investigation OCR launched in 2021, when it announced at the same time that it would investigate FCPS and Los Angeles Unified School District.
May 17, 2022 (five working days after the request):
FCPS/FCSB’s FOIA office emailed its request for additional time:
Thank you for submitting you Virginia Freedom of Information Act (VFOIA) request, which was received by Fairfax County Public Schools (FCPS) on May 13, 2022. Please see attached for reference.
Due to limited staffing and the amount of time that will be required to process your request, FCPS requires an additional seven working days to respond. Va. Code § 2.2-3704(B)(4). FCPS will respond to your request by or before May 26, 2022.
FCPS/FCSB incorrectly stated the receipt date as May 13, 2022, instead of the correct date of May 10, 2022, and failed to convey that it would need more than “an additional seven working days to respond” and provide the requested documents.
May 24, 2022 (five working days into its seven-working days extension):
FCPS emailed the following response at 3:46 PM:
In your request you seek:
“all of FCPS’s documents and correspondence and any other digital or print records between FCPS and OCR, which relate to the investigation and resolution, specifically for the investigation OCR launched in 2021, when it announced at the same time that it would investigate FCPS and Los Angeles Unified School District.”
FCPS identified approximately 620 responsive documents, which total approximately 8,300 pages. Va. Code 2.2-3704(F) allows FCPS to “make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records.” FCPS estimates that it will require 20 hours of labor time to access, review, and produce responsive records. The estimated costs to respond to your request under VFOIA are $700.00 (20 hours at the rate of $35/hour.)
Pursuant to Va. Code 2.2-3704(H), the FCPS can require payment prior to processing your VFOIA request because the estimated costs will exceed $200. If you wish to continue with your VFOIA request, then please submit payment online via the FCPS FOIA Payment Portal by clicking the link below. A receipt will be provided to you upon completion of your online payment. Alternatively, payment can be made by sending a check made payable to the “Fairfax County Public Schools” to the address listed in the signature below.
https://www.myschoolbucks.com/ver2/stores/checkout/getproduct?clientKey=ZZIPH74FHI0OA25&buttonID=1316173c-616f-42f9-989c-8939cb475421 If payment is not received within 30 days of this advanced cost notice, your request will be considered withdrawn pursuant to Va. Code 2.2-3704(F).
FCPS/FCSB failed to state it would need up to a month to provide a full response to the FOIA request.
At 4:04 PM the same day, I responded by sending the following in an email:
Please be clear about the amount of the payment you are requesting.
Va. Code 2.2-3704(H) allows FCPS to “require requester to agree to payment of a deposit not to exceed the amount of the advance determination.”
What is the amount of the deposit you are requesting?
May 25, 2022 (six working days into its seven-working days extension):
FCPS/FCSB did not respond to the previous day’s email and did not provide a full response to my FOIA request.
May 26, 2022 (seven working days into its seven-working days extension):
I submitted full payment online to FCPS/FCSB and at 9:01 AM emailed the following to FCPS/FCSB:
May 10, 2022, I submitted a FOIA request.
You were provided $700 for the request.
You are over the timeline for responding.
Please provide a full response.
The fee posted to my credit card the same day and is listed in the credit card statement as “FCPS FOIA Request”.
At 4:06 PM on the same day—after it took my payment and just two days after it provided its quote—FCPS stated it needed an extension of up to a month:
Thank you for submitting your Virginia Freedom of Information Act (VFOIA) request, which was received by Fairfax County Public Schools (FCPS) on May 10, 2022. On May 17, 2022 FCPS invoked a seven working day extension (first attachment.) I acknowledge a typo in the extension notice citing the date FCPS received your request.
On May 24, 2022 FCPS provided you with an advanced cost estimate. Therefore, only five business days of the seven working day extension were utilized. On May 26, 2022 FCPS received your advanced cost payment (third and fourth attachment.)
Please be advised that Va. Code § 2.2-3704(H) states “the period within which the public body shall respond under this section shall be tolled for the amount of time that elapses between notice of the cost estimate and the response of the requester.” In your May 26, 2022 email (third attachment), you assert that FCPS is overdue on this FOIA response. The due date for providing you with responsive records is May 27, 2022. However, given the extraordinary volume of records (620 responsive documents, which total approximately 8,300 pages) and staffing of one fulltime position the FCPS FOIA Office, a response by FCPS within the time required by VFOIA is not practically possible.
Please let us know if you agree to receiving the records in four productions based on the timeline outlined below. Alternatively, FCPS will be required to petition the courts for additional response time. Va. Code § 2.2-3704(C). The timeline is an estimate based on the extraordinary volume of records. We will make diligent efforts to provide these records in fewer productions if possible.
June 3, 2022
June 10, 2022
June 17, 2022
June 24, 2022
Let’s Revisit § 2.2-3704(B)(4)
§ 2.2-3704(B)(4) states the following:
Any public body that is subject to this chapter and that is the custodian of the requested records shall promptly, but in all cases within five working days of receiving a request, provide the requested records to the requester or make one of the following responses in writing:
4. It is not practically possible to provide the requested records or to determine whether they are available within the five-work-day period. Such response shall specify the conditions that make a response impossible. If the response is made within five working days, the public body shall have an additional seven work days or, in the case of a request for criminal investigative files pursuant to § 2.2-3706.1, 60 work days in which to provide one of the four preceding responses.
Did FCPS/FCSB provide the records within five working days?
No.
Did FCPS/FCSB respond within five working days and state it needed additional time?
Yes.
Did FCPS/FCSB provide the records on or before the additional seven working days?
No.
Does § 2.2-3704(B) provide for an additional month on top of additional seven working days?
No.
Where does Virginia Administrative Code (VAC) state FCPS/FCSB should be awarded another extension on top of its previous extension? To my knowledge, it does not. However, § 2.2-3704(C) does state the following:
C. Any public body may petition the appropriate court for additional time to respond to a request for records when the request is for an extraordinary volume of records or requires an extraordinarily lengthy search, and a response by the public body within the time required by this chapter will prevent the public body from meeting its operational responsibilities. Before proceeding with the petition, however, the public body shall make reasonable efforts to reach an agreement with the requester concerning the production of the records requested.
Did FCPS/FCSB Make Reasonable Efforts to Reach an Agreement with the Requester?
First Up: Timeline
On or before the fifth working day following the request, did FCPS/FCSB state it would need up to a month to provide a full response?
No.
On or before the seventh working day following the request extension, did FCPS/FCSB state it would need up to a month to provide a full response?
No.
When FCPS/FCSB stated it required payment in advance of providing the records to the requester, did FCPS/FCSB state that, even if the requester made a partial or full payment, FCPS/FCSB would need additional time to provide the records?
No.
When FCPS/FCSB provided the quote and when FCPS/FCSB requested payment, it did not do so in good faith. FCPS/FCSB knew at the time of its proposal that it would not be able to fully respond to the request within the time period mandated by law.
Second Up: Staffing Facts
The FOIA response FCPS/FCSB sued me and Debra over in 2021 indicates that outside counsel Hunton Andrews Kurth (HAK) has addressed my FOIA requests in the past.
Yet, nine months later, FCPS/FCSB stated it has just one staff member addressing FOIA requests. What about outside counsel? Why no mention of them? (July 5, 2022, after this article first published, I obtained a record indicating that at least one FCSB division attorney worked on the FOIA request at hand.)
During the May 26, 2022, school board meeting, FCPS Auditor General Esther Ko suggested mentioned that the FERPA/FOIA office is undergoing restructuring and thus suggested delaying the audit of the office. Her presentation slide indicates that FCPS’s office of special education procedural support and division counsels are internal stakeholders and that the objectives/scope of the audit are the following:
(1) Understand the proposed FCPS Records Office, including (a) its organizational structure, and (b) the newly established processes/protocols in handling the FOIA and FERPA requests, (2) benchmark with other school districts regarding their processes in handling the FOIA and FERPA requests, (3) evaluate the effectiveness and efficiency of the setup of the Records Office and, identify any improvement opportunities.”
In response to Esther’s comments, Superintendent Scott Brabrand admitted he knew prior to May 26, 2022, that there are additional issues related to the office:
Yeah. We’re hiring some additional positions given the workload that’s come out of that FOIA and FERPA office. Um, and so, that’s some of the discussion, obviously, that the school board will determine it, but if you want to see what it means by putting the additional resources in and then how effective it is, we know, um, we know we’re understaffed right now and volume continues to increase, um, especially there’s been some state legislator changes in Richmond that are actually only now going to make the volume higher, so we want to make sure when the board does take a look at the results of the audit, that they’re getting an accurate picture of what we have. But in the end it’s your alls’ decision of whether you want to do it now or wait a little longer until the folks are in.
Thus, FCPS submitted its quote knowing problems with its office exist and that it wouldn’t be able to provide a full FOIA response within the two remaining days of its FOIA timeline extension. Yet, FCPS submitted its quote without mentioning it would need an extension—and then took (and kept) my money before mentioning it would need another extension.
A look at other FCPS records indicate that the new “Records Office” that was referenced during the May 26, 2022, school board meeting had been in the work for months:
- Per the school board’s January 13, 2022, proposed budget, a “Records Office” was being added to “Support for the increase in FOIA requests managed by the division $0.5 million.”
- Per a powerpoint presentation related to the school board’s February 8, 2022, work session, and per the school board’s February 24, 2022, advertised budget, the new “Records Office” was to receive $500,000 in funding.
Third Up: Waiving Fees
Brandynn Reaves, FCPS/FCSB’s FOIA officer of many years (up until last year), used to waive fees in exchange for more time. She didn’t require the requester to make an initial payment in advance. Bill Park, a FCPS parent who held FCPS and Lake Braddock Secondary School accountable for sexual harassment of his daughter and her teammates is an example of one person with whom Brandynn waived fees on a regular basis. In Bill’s case, thousands of dollars in fees were waived in exchange for him agreeing to an extension of time. (Additional Reading: “Feds investigating Virginia school after sex harassment complaints against coach“)
Where Are We Now?
May 26, 2020, at 4:28 PM:
I emailed FCPS/FCSB my choice of the two it offered:
I do NOT agree to the timeline provided.
You accepted a payment. You must provide the service for which that payment was provided.
You stated:
“However, given the extraordinary volume of records (620 responsive documents, which total approximately 8,300 pages) and staffing of one fulltime position the FCPS FOIA Office, a response by FCPS within the time required by VFOIA is not practically possible.”
*FCPS’s staffing issue isn’t my problem and isn’t a valid reason to waive mandated regulations. In addition, I’ve seen FCPS’s invoices and know that FCPS has sent my FOIA requests to its lawyers in the past. FCPS can certainly have more people work on the request if necessary to meet the deadline. FCPS’s wish to have its lawyers go over my FOIA requests is not my problem, nor is it a valid reason to waive mandated regulations. I want everything now. If you aren’t able to provide everything now, I want everything you have available by tomorrow at 5 pm. Per whatever else remains, you can petition the court to address why you failed to make the deadline.
May 27, 2020, at 4:20 PM:
Blankingship & Keith Lawyer William Porter emailed me the following message and attachment:
My name is Bill Porter, and I represent the Fairfax County School Board with respect to its petition to extend the time to respond to your recent FOIA request. Attached is a file stamped copy of the pleadings that was filed today in the circuit court. If you are represented by counsel, please let me know so I can direct all future communications to your counsel.
I would like to set the petition for an emergency hearing as soon as the court has time on its calendar. In furtherance of that, please let me know what mornings at 8:30 am next week you or your counsel are available to call the calendar control judge to set a date for the petition to be heard by the court.
Note his FCPS/FCSB’s Petition lacks full information on how FCPS/FCSB historically has addressed FOIA requests.
Click on image below to view document in full.
That same day, at 6:12 PM, I responded as follows:
Thank you for your email.
I believe there are a few disconnects.
Per FCSB’s invoices from Hunton Andrews Kurth (HAK), HAK has addressed my FOIA requests for FCSB in the past, so it isn’t accurate to indicate that FCSB’s only options for FOIA responses are limited to one employee and an already-busy, in-house legal staff. Indeed, FCSB’s invoices indicate a school system that taps into outside counsel on a regular basis. If you don’t have this evidence, please let me know. I’d be happy to provide it to you and the Court, so that everyone is of the same understanding of the facts. Of course, you reaching out to me, rather than John Foster or Ellen Kennedy or one of their colleagues, is another example of this.
Per the above, the reality of FCSB’s FOIA response options is different from what Molly Shannon and the petition indicate. Hence, I’m left questioning how a reasonable request was made, given that the facts on which the request was made aren’t an accurate representation of FCSB’s historical FOIA response actions.
If FCSB would like to make a reasonable request based on the facts, I’d be more than willing to consider the request. As one example, Brandynn Reeves, the previous FOIA officer, used to waive fees in such situations.
In addition, your petition notes a different timeline than the one shared by FCPS’s FOIA officer (or whomever sent me the email). I sent my request on the 10th, but the email response indicates it was received March 13th, whereas the petition states it was received March 10th.
Per your timeline, as I’m sure you’ll understand, your email arriving today, toward the close of business at the start of a holiday weekend (rather than earlier given FCSB was aware 24 hours ago of my refusal to consent to FCSB/FCPS’s request for an extension based on inaccurate information), puts me in a bad spot to address a situation that FCSB deems to be an emergency. I’m not available next week or for the majority of the following week due to Memorial Day weekend, travel, my son’s upcoming high school graduation, family visiting, work, and other commitments. If you’d like to discuss a date after the time period stated, please let me know.
Last is the issue of the $700 paid for a service FCSB/FCPS has yet to provide. After delaying, not responding, and taking the $700, FCSB/FCPS is now advising it won’t provide the response I paid for within the timeline I paid to receive it. FCSB/FCPS could have made me aware of this prior to payment, but failed to do so. In other circumstances, if someone took my money and then refused to provide the service in the manner it was supposed to be provided, I would call the credit card company and file a claim against whomever took my money. Would you suggest I do that here?
Thanks again, Bill. I look forward to your response and reading your thoughts on the above. (Please note my email responses in the coming days/week will be delayed as I won’t have the access I typically have to email.)
Bill didn’t respond the May 28th, 29th, or 30th. May 31, 2022, at 3:24 PM, Bill emailed the following:
Given your email last week rejecting FCPS’s request for an extension of time to produce material responsive to your FOIA request, FCPS had no option but to follow the process outlined in Code of Virginia section 2.2-3704(C), and file a Petition to extend the deadline. If I should read your email below to suggest that, given your busy schedule over the next few weeks, you have changed your position on an extension, please let me know. Otherwise, the Petition is pending, and we need to appear before the calendar control judge this week to set a hearing on a later date within the next few weeks.
It may be helpful for you to know that all calendar control appearances are by phone, so this scheduling process should be relatively quick and easy. So that we may appear before the calendar control judge by phone this week, please let me know any day this week when you are available to call the court at 8:30 a.m. and provide me a number where I can reach you before patching us both into a call with the court. I will take care of the rest of the logistics for setting up the call. Once we are on the call with the court, we can discuss your available dates for the hearing itself. Alternatively, if you are willing to provide me with available dates on which you are available for the hearing on the Petition, with your permission, I am happy to call the court myself this week and schedule the hearing for a date when you are available.
I look forward to hearing back from you promptly about getting this matter set for a hearing.
The same day, I responded to Bill at 3:24 PM:
FCPS had the option of working in good faith to either 1) provide a full FOIA response by the deadline or 2) work with me in good faith to come to an agreement that works for both of us.
Instead, FCPS 1) delayed its provision of its FOIA quote until just before the FOIA response was due; 2) acted in bad faith when it provided me a quote just before the deadline, without advising me that if I paid, FCPS wouldn’t be able to provide the service for which I was paying by the date the FOIA request was due; 3) made an extension request that isn’t based on FCPS’s historical FOIA response actions; and 4) failed to ask me if there was a timeline or a payment arrangement I’d accept.
If FCPS would like to waive the fees and discuss a different schedule, I would certainly entertain such a resolution to this matter.
Per the scheduling call, I’m aware of how they work. I’m not comfortable with you scheduling a hearing without me on the call. The earliest I can do is Friday of next week. Thanks again for your correspondence. If you have any questions, please let me know.
June 1, 2022:
Bill responded:
Based on your stated unavailability until next Friday, let’s plan to call calendar control at 8:30 am on Friday, June 10. Please let me know the best number to reach you before we call into the court.
June 2, 2022, at 9:21 AM:
I emailed Bill, with a cc to the School Board members:
My understanding from your response is that FCSB would rather spend over $700 on legal fees to go to court, rather than to waive the $700 FOIA fee, which the FOIA office proposed in bad faith given it knew it would be unable to provide its response on time when it submitted the $700 quote to me.
If I’m incorrect in my understanding, please let me know.
For Friday, June 10, please ring me at [XXX.XXX.XXXX].
June 3, 2022, at 9:33 AM:
Bill responded:
I want to make sure I understand your position so I can accurately report it to my client. Are you making a settlement proposal, the terms of which are that you will agree to FCPS’s requested extension to respond to your FOIA request if FCPS refunds you the $700 FOIA cost that you have paid? Please confirm your intent at your earliest convenience so I can determine how to proceed.
June 3, 2022, at 11:19 AM:
I replied to Bill:
As previously stated in my May 31, 2022, email to you, if FCPS would like to waive the fees and discuss a different schedule, I would certainly entertain such a resolution to this matter.
If you are seeking to make reasonable efforts to reach an agreement and want me to specifically state the terms, rather than making a proposal yourself, I would propose FCPS/FCSB waive the $700 fee, provide everything available by 11:59 PM today (today was one of the days FCPS previously included in its extended timeline, so it should have records available today), and provide the remainder on or before June 8, 2022. FCPS quoted 20 hours, so this timeline provides it more than enough time to address 20 hours of work.
If you have a different suggestion and/or any questions, please let me know.
Bill didn’t respond again on June 3, 2020, or on June 4th, 5th, 6th, or 7th.
June 3, 2022, 3:29 PM:
FCPS FOIA Officer Molly Shannon emailed me the first production of FCPS’s FOIA response:
As referenced in my May 26, 2022 4:06 PM email below, the first production of records are being provided to you via the SmartFile link provided below. In that same email I mentioned that I am working diligently to produce the records ahead of the documented timeline. I anticipate being able to provide you with two productions next week – on Tuesday, June 7, 2022 and June 10, 2022.
June 3, 2022, was the date on which Molly previously advised that she would provide me the first production.
June 7, 2022, at 10:50 AM:
I emailed Bill the following:
My understanding of your lack of response to the below is that FCPS/FCSB has 1) chosen to pay legal fees that exceed the cost of the FOIA request and 2) delay the provision of FOIA records and public access to the records requested.
If I’m incorrect in my understanding, please let me know.
At 5:02 PM, Molly emailed the second production of FCPS’s FOIA response:
Production 2 is being provided to you via the SmartFile link provided below. Please download a copy of the records for your personal use. Information directly related to individual students was redacted pursuant to Va. Code 2.2-3705.4(A)(1). Employee birthdates and discussion of personal leave were redacted pursuant to Va. Code § 2.2-3705.1(1)(personnel information concerning identifiable individuals.) One email was redacted in part pursuant to Va. Code § 2.2-3705.1(2) and relates to attorney client privileged communications.
June 10, 2022, was the date on which Molly previously advised that she would provide me the second production. Although the second production didn’t comply with FOIA timelines, it came three days before Molly originally said it would.
June 8, 2022, at 3:29 PM:
Bill responded:
I am in the process of discussing your proposal with my client and will get back to you when I have a response. In the meantime, attached is a form I will send to the court today to set our calendar control appearance by telephone on Friday. I will call you Friday morning a few minutes before 8:30 a.m., before patching us in to the court.
June 8, 3:31 PM:
Bill emailed:
Attached please find a calendar control notice setting this matter on the court’s 8:30 a.m. calendar control docket for Friday morning.
Click on image below to view document in full.
June 9, 2022, at 8:37 AM:
I emailed Bill:
I am in receipt of the Notice and will be prepared for a 8:30 AM call.
My understanding of your client’s delayed response is that it prefers to 1) continue paying legal fees that exceed the cost of the FOIA request, 2) continue delaying the provision of FOIA records and public access to the records requested, and 3) continue treating FOIA-related fee charges differently, depending on the individual who makes the FOIA request.
If I’m incorrect in my understanding, please let me know.
June 9, 2022, at 8:45 AM:
Bill responded:
Thank you for confirming that you will be available for our call to the court tomorrow. As to the narrative in your email: yes, your understanding is incorrect. The School Board has outlined its position in the court filing.
June 9, 2022, at 10:23 AM:
Bill emailed:
I have heard back from my client in response to your suggestion of resolution, and I am authorized to convey the following offered to resolve the issues raised in the petition.
In exchange for your agreement to an accelerated production schedule with documents produced on June 3 (already completed), June 7 (already completed), and June 17, the school board will waive 50% of the FOIA fee.
Please let me know if this is acceptable to you.
June 9, 2022, at 1:53 PM:
I emailed Bill the following:
I do not find your client’s proposal acceptable. I find your client’s proposal retaliatory.
I will accept a 100% waiver of the $700 FOIA fee, in exchange for FCPS/FCSB providing me at least 500 pages (must be new pages, not those previously provided) by June 10th. I will accept the rest of the response no later than 11:59 pm on June 13th.
Please advise me today if your client will accept this proposal.
I believe this to be fair proposal in light of the facts that follow below:
1. In the past, FCPS/FCSB offered 100% waivers of over $900 FOIA fees in exchange for extensions, but in this case FCPS/FCSB is offering a 50% waiver of $700 FOIA fees in exchange for an extension.
2. FCPS/FCSB’s different treatment of me (see #1 above) is retaliation. This retaliation is due to my advocating for my children and for my efforts to make the FCPS community aware of FCPS/FCSB’s actions/inactions.
3. Retaliation is a civil rights violation.
4. FCPS/FCSB proposed a quote in bad faith.
5. FCPS/FCSB misled me to believe that if I paid the $700 fee, I would receive a full response by the end of FCPS/FCSB’s first seven-day extension.
6. FCPS/FCSB took my $700 before making me aware it would need an extension.
7. FCPS/FCSB failed to provide the service for which I thought I was paying.
8. FCPS/FCSB harmed my ability to advocate when it delayed its response.
9. FCPS/FCSB forced me to spend additional time/money of my own in response to its FOIA-related failures.
10. FCPS/FCSB failed to negotiate fees or discuss its bad faith proposal (and the failures that followed) in a timely manner, and instead waited until the day before a calendar control hearing – and after it racked up more legal fees – to respond to a suggested proposal I submitted last week.
11. FCPS/FCSB misled the court about FCPS/FCSB’s historic FOIA-response process, to include that a) overtime IS involved in FCPS/FCSB’s FOIA responses; b) outside counsel ARE involved in FCPS/FCSB’s FOIA responses; c) staff in the Due Process & Eligibility office ARE involved in FCPS/FCSB’s FOIA responses; and d) FCPS/FCSB has a history of delaying and trying to claw back FOIA responses in an effort to delay and/or prevent public access to the response.
If you have any questions – to include if you’d like copies of the supporting materials for the facts stated above – please let me know.
Bill did not respond.
Within about an hour of me emailing Bill at 1:53 PM, a server showed up at my door, to serve court papers from FCPS. Later that day, a letter arrived from FCPS, which advised it had terminated one of my kid’s special education services.
June 10, 2022:
Bill and I scheduled the hearing for August 17, 2022, at 10 AM. The Court’s schedule, as well as my schedule and Bill’s schedule, resulted in the hearing being pushed out for two months.
At 3:56 PM, Molly sent production 3 of FCPS FOIA response:
Production 3 is being provided to you via the SmartFile link provided below. Please download a copy of the records for your personal use. Information directly related to individual students was redacted pursuant to Va. Code 2.2-3705.4(A)(1). Values that reference 10 or fewer students were suppressed to protect student privacy as such data could potentially identify specific students, which FCPS could not disclose, under the Family Educational Rights and Privacy Act (FERPA), 20 USC 1232g. Employee birthdates were redacted pursuant to Va. Code § 2.2-3705.1(1)(personnel information concerning identifiable individuals.)
June 17, 2022, was the date on which Molly previously advised that she would provide me the third production. Although the third production didn’t comply with FOIA timelines, it came in a week before Molly originally said it would.
At 3:58 PM, I asked:
Is this your final response or will more be forthcoming? I was not advised you’d be providing anything today.
At 4:01 PM, Molly responded:
There are additional records forthcoming. The next production will be provided to you on or before June 17, 2022. If the review is finalized before June 17, 2022, the records will be made available to you sooner.
Bill did not respond.
June 16, 2022, at 9:31 AM:
I tried to contact Bill again:
My understanding of your lack of response to the below is that FCPS/FCSB has 1) chosen to wage lawfare; 2) chosen to retaliate against my efforts to advocate for my son; 3) chosen to pay legal fees that exceed the cost of the FOIA request; 4) chosen to delay the provision of FOIA records and public access to the records requested; and 5) chosen to retaliate and make bad faith offers rather than make reasonable efforts to resolve this situation.
If I’m incorrect in my understanding, please let me know.
Three minutes later, Bill responded:
Ms. Oettinger, you are incorrect in your understanding.
At 9:46 AM, I replied to Bill:
Thank you for your prompt response.
On information and belief, I stand by the understanding stated in my earlier email of this morning.
If you have documentation buttressing your statement, I’d welcome receiving it.
June 17, 2022, at 2:01 PM:
I filed a request for injunctive relief and damages with the court and provided Bill and FCSB a copy.
At 2:55 PM, Molly sent me production 4 of FCPS’s FOIA response:
Production 4 is being provided to you via the SmartFile link provided below. Please download a copy of the records for your personal use. Personal contact information (cell phone number) was redacted pursuant to Va. Code 2.2-3705.1(10). Values that reference 10 or fewer students were suppressed to protect student privacy as such data could potentially identify specific students, which FCPS could not disclose, under the Family Educational Rights and Privacy Act (FERPA), 20 USC 1232g.
June 24, 2022, was the date on which Molly previously advised that she would provide me the fourth production. Although the fourth production didn’t comply with FOIA timelines, it came in a week before Molly originally said it would, On June 17, 2022.
However, pursuant to Molly’s previous email and pursuant to Bill’s resolution proposal, my understanding was that the fourth production was supposed to be the final production, thus I would be provided every responsive record no later than June 17, 2022. After reviewing it, it was clear that FCSB failed to provide a full FOIA response to my request.
FCSB failed to nail the very deadlines within its own resolution proposal.
At 4:05 PM, I emailed Molly:
I again request all responsive records be provided per FOIA regulations.
Please ensure your response covers the period up until the day you provide the response to me, since every day of FCPS’s delays and withholdings is another day I can’t fully advocate for my son.
Please ensure your response includes access to all attachments and links included in the records, so that I have full access to responsive records.
June 24, at 6:46 PM:
Molly emailed an excuse for FCPS’s failure to provide the rest of the FOIA response:
Due to technical issues with document review software, our review of Production 5 has been delayed. Production 5 includes documents that are very heavy with student information that must be redacted. The technical issues with the software have been resolved and we are working through finalizing the redaction of personal student information.
Lastly, the final production also includes recordings which extended the review time significantly. This required at least an additional 5 hours of labor time to retrieve and review. All additional costs will be waived.
June 24, 2022, was the date on which Molly advised previously that I would receive the final production. Instead, it became the date on which she advised me FCSB needed more time.
At 3:30 AM, I emailed FCSB members:
School Board members,
Per the below it is my understanding that you negotiated in bad faith when the offer of waiving 50% of the $700 fee was submitted to me by Bill.
Hence, FCSB operated in bad faith numerous times in regards to this matter.
If you believe my understanding to be incorrect, please let me know.
To date (July 8, 2022), not one FCSB member has replied.
July 1, at 4:20 PM:
One week after she said she would provide me the final production, Molly emailed me what production 5:
Production 5 is being provided to you via the SmartFile link provided below. Please download a copy of the records for your personal use. Information directly related to individual students was redacted pursuant to Va. Code 2.2-3705.4(A)(1). Values that reference 10 or fewer students were suppressed to protect student privacy as such data could potentially identify specific students, which FCPS could not disclose, under the Family Educational Rights and Privacy Act (FERPA), 20 USC 1232g. An Employee ID number (1 second portion of a recording which presented a document with a student ID) and birthdates were redacted pursuant to Va. Code § 2.2-3705.1(1)(personnel information concerning identifiable individuals.) Attorney client privilege communications were redacted in part pursuant to Va. Code § 2.2-3705.1(2). https://file.ac/Nyyqeq6POlU/
Production 5 was not included in the same file as productions 1 to 4. I could not access the link provided for production 5.
I responded to Molly:
FCSB’s failures continue.
The link in your email below doesn’t work.
For #s 1-4, you used one link and you provided me access to #s 1-4 through that link.
For #5, you provided a new link for what you claim to be another set of records, yet the link doesn’t work.
Hence, another day has gone by without FCSB providing me access to a FOIA request for which it is already long overdue.
In addition, it is my understanding that this 5th installment should not be considered a final installment, and that additional records should be provided by FCSB.
Molly did not respond for four more days.
July 5, 2022, at 11:36 AM:
Molly finally responded:
I’ve generated a new link in hopes that it resolves the issues you were experiencing. I did test the old and new link and was able to open and view the records. Please use the newly generated link below to access the final production. Please let me know if you continue to experience issues opening the link so we can determine whether we need to deliver the records to you using an alternative method.
The file sharing program indicates that the file was created by a FCPS division attorney, not by FOIA Officer Molly Shannon.
July 5, at 11:51 AM:
I emailed Molly:
The link you sent last week required a password. You did not provide a password.
If you could respond to my emails in full, I would appreciate if.
When will the rest of the records be provided to me?
At 4:22 PM, Molly responded:
As mentioned below this is the final production. All records responsive to your request dated May 10, 2022, have been produced to you.
At 6:02 PM, I emailed Molly:
You didn’t provide me all the attachments to the emails and you didn’t provide me access to the links referenced within the emails.
Hence, you didn’t provide full access to all records.
In addition, I requested that you extend the search to cover the timeframe between when I made the request and when you provided the final production, given FCPS delayed provision of the production in full. You’ve not responded to that request nor have you provided it.
I look forward to receiving a response from you.
July 7, 2022, at 10:01 AM:
I resent my July 5, 2022, email to Molly and pointed out addition FOIA issues:
Please respond to my email below.
Please address FCSB’s failure to provide responsive records per my June 21st request, which states:
“Please ensure your response covers the period up until the day you provide the response to me, since every day of FCPS’s delays and withholdings is another day I can’t fully advocate for my son. Please ensure your response includes access to all attachments and links included in the records, so that I have full access to responsive records.”
FCSB already exceeded the initial timeline for this request.
Were FCSB to consider the June 21 email a new/separate FOIA request, FCSB would be in violation for failure to provide a response or request and extension within five business days.
At 4:04 PM, Molly responded:
You have received all records responsive to your request dated May 10, 2022 that were in existence at the time of your request.
If you seek records that were created or maintained after May 10, 2022, then please clarify the date range you would like to use for this request. VFOIA requests must be made with reasonable specificity. Va. Code. § 2.2-3704(B). A cost estimate cannot be provided for open ended requests. For example, do you seek “all of FCPS’s documents and correspondence and any other digital or print records between FCPS and OCR, which relate to the investigation and resolution, specifically for the investigation OCR launched in 2021, when it announced at the same time that it would investigate FCPS and Los Angeles Unified School District” created or maintained between May 11, 2022-July 7, 2022?
Please clarify how you would like to proceed with your new request so we can provide you with and advanced cost estimate for this new request should any responsive records exist.
July 8, 2022, at 12:16 PM:
I responded to Molly and again requested full access:
I’ve been clear. I’ve asked that you extend the timeline for the FOIA response at hand, so that responsive document are provided until today, rather than until May 10, 2022, given FCPS’s failure to comply with FOIA regulations.
In addition, I’ve been clear that I’ve requested complete access to the records. If I can’t access a link or an attachment to an email (as two examples), then I don’t have full access to the records. This has been a problem repeatedly in the past, so I know you’re aware of the situation. This should not be a new FOIA request. It should be provided with FCPS’s response to the FOIA request at hand.
July 8, 2022, at 3:59 PM:
Bill’s assistant Anne Gabler emailed me “Fairfax County School Board’s Demurrer and Motion to Dismiss Respondent’s Request for Injunctive Relief and Damages“, which presumably was filed with the court the same day.
FOIA: A Win-Win for FCPS/FCSB, A Disadvantage for Requesters
Requesters are put at a disadvantage when organizations operate as FCPS/FCSB. Requesters are faced with paying high fees and then being put in the position of either consenting to lengthy delays or going to court and paying any fees related to lawyers and filings.
Whereas FCPS/FCSB either 1) doesn’t do the work because the requester doesn’t pay the fee; gets more time because the requester accepted the delay after paying; or 3) gets more time because it is going to court.
FOIA: A Lose-Lose for Students
Rather than waiving a $700 FOIA fee in exchange for consent for more time, FCPS/FCSB chose to hire a lawyer whose fees will exceed $700 by the time the case goes to court.
Instead, that money could go to students and teachers.
Public Significance
In his decision last year, Judge Gardiner stated the following about the FOIA documents that FCPS/FCSB was trying to withhold:
And while it’s not a matter of something like the Pentagon papers where we’re talking about
the war in Vietnam, certainly it’s a matter of public significance . . .
The same holds true here.
January 12, 2021, the Office of Civil Rights announced that it would investigate Los Angeles Unified School District, FCPS, and Seattle Public Schools.
April 28, 2022, OCR announced LAUSD is at fault for civil rights violations and OCR released the resolution reached following its investigation of LAUSD. Among its findings, OCR identified the following failures that occurred during COVID 19-related remote learning, many of which mirror what occurred with FCPS:
- LAUSD limited the services provided to students with disabilities based on considerations other than the students’ individual educational needs.
- LAUSD failed to accurately or sufficiently track services provided to students with disabilities.
- LAUSD directed district service providers to include attempts to communicate with students and parents—including emails and phone calls—as the provision of services, documenting such on students’ service records.
- LAUSD informed staff that the district was not responsible for providing compensatory education to students with disabilities who did not receive FAPE during the COVID-19 school closure period because the district was not at fault for the closure.
- LAUSD failed to develop and implement a plan adequate to remedy the instances in which students with disabilities were not provided a FAPE during remote learning.
A few specific examples include:
- LAUSD’s training to service providers stated that “[t]he expectation is not for providers to deliver every minute per FAPE 1 [sic] during COVID-19 school closures, but to document each attempt and contact with the student.”
- LAUSD tracked services provided to students with IEPs but did not require that the amount of services provided actually match IEPs minute for minute during remote learning. If a student logged in, LAUSD counted it as class time for 1:1 instruction by capturing attendance.
- LAUSD did not track instances of implementation issues due to remote learning for students with Section 504 plans and therefore did not know how often this occurred.
- LAUSD suspended its practice of providing quarterly updates to parents/guardians.
In addition, according to OCR, LAUSD “created a legally unsupported heightened standard for the assessment of compensatory services . . . limiting the provision of compensatory services to circumstances where the District was at ‘fault’” and, as a result, “the District did not offer compensatory services when the District was unable or failed to provide appropriate services to a student with a disability during the COVID-19 pandemic.” As of March 2022, documentation that LAUSD provided OCR indicated that LAUSD had yet to conduct “a review of the decisions it previously made for individual students under that legally unsupported heightened standard.”
Transparency is a good thing. Ensuring transparency when it comes to the education of children with special education needs in particular can result in life-saving changes.
FCPS/FCSB’s choice to delay the provision of FOIA documents prevents transparency.
I’m not sure I have this right, but if FCPS/FCSB indicates 20 hours is needed to complete the FOIA request how can they then say they need a month?
I don’t know. Technically they had five working days, plus another seven working days (first extension), and now they are saying they need up to a month in addition. This puts them between one-to-two months for 20 hours of work.