Our inBloom email saga Part I: Waiting for John King to respond to the FOIL

I have taken  time during this holiday break to finally write up my experiences with my attempt to FOIL communications of the NY State Education Department regarding inBloom Inc.  Below is Part I.  

John King, now Acting US Secretary of Education

Fighting inBloom took a long time, especially here in New York;  we were the first state to organize a campaign against this data-grabbing project of the Gates Foundation, starting in January 2012,  and  the last state to pull out, in April 2014, due to the amazing ability of our Commissioner, John King, to ignore the vehement opposition from the State legislature, including the leaders of both parties, the school boards, the state superintendents, the teacher union, emails from thousands of parents, and finally the Governor.   (Background on the inBloom controversy is provided on the Parent Coalition for Student Privacy here; newsclips here.)

While in other states, it took only a few months to a year of  protests for their State Education chiefs to feel the pressure and pull out of inBloom, here in NY it took two and a half years and an act of the State Legislature as part of the budget deal on March 31, 2014 to convince our Commissioner this data-sharing arrangement was now illegal and thus could not be sustained.  (Here is a timeline of events.) 

But nothing was more frustrating than the year and half wait we had to endure, even after inBloom had closed its doors, to receive the emails between State Education Department officials and the private entities with whom they intended to share our most sensitive student data.   Here is that story.

On June 17, 2013, with the help of attorney Norman Siegel, we requested all email communications between officials of the NY State Education Department and the Gates Foundation, inBloom, the Shared Learning Collaborative LLC (inBloom's name before it became a separate corporation) , Wireless Generation (the major subcontractor for inBloom, hired to build the data system), and Amplify (Wireless Gen's new name after it was bought by Rupert Murdoch and hired Joel Klein to run this company as a division of News Corporation.) 

We asked for the communications between January 1, 2011 and May 1, 2013 through a Freedom of Information Law (FOIL) request.  Actually, the request was made on behalf of the PS 75 PTA in District 3 in Manhattan and the Community Education Council in District 14 Brooklyn, whose members were very concerned about the inBloom plan and agreed that this was important information that parents had a right to know.    

In NYC and throughout the state, as well as in all the other nine inBloom states and districts, parents were understandably concerned about the decision of their State Education Departments to share the highly sensitive personal information of their children with all these private entities, and especially furious that their states had refused to tell them anything about it beforehand, including in many cases what information they intended to share and under what conditions.  

I had decided not to make a FOIL request on behalf of Class Size Matters, having previously experienced NYSED’s refusal to give me any information regarding the city's state-approved Contracts for Excellence plan.  NYSED staff had told me that the decision to bar me from receiving any information about the city's plan, which was clearly public information, had come directly from John King when he was Deputy Commissioner; and that he had specifically ordered them to withhold this information from me.  I had been forced to threaten a lawsuit to finally receive the plan, and when they did finally send it to me, months after it had requested it,  it had the words "Draft" on it, revealing that it was apparently not the final approved plan.

After King became Commissioner, he had even more reason to resent me.  Not only had I been the first person to bring attention to inBloom, but I had also  exposed the ridiculous Talking Pineapple questions on the NY state exams in April 2012, which soon became a nationwide scandal and a symbol of the lack of accountability on the part of the testing companies and State Education Departments, causing him to have to scrap that part of the exam.  

Parent asking about inBloom at Spackenhill HS

He had also started receiving hundreds of emails from parents,  demanding that he withhold their children's information from inBloom, and arguing that it was unethical if not illegal for him to provide this information without their consent.  

Then in October 2013, he told reporters that he was going to cancel all future Town Hall meetings about the Common Core, after the first disastrous one  at Spackenkill High School in Poughkeepsie,  because, he explained, parents were being manipulated by private interests.  When the reporters asked which private interests, he identified two: NYSUT, the state's teacher union and Class Size Matters -- apparently because an parent whom I had never met had asked him about inBloom at the Poughkeepsie meeting. 

King was eventually forced to resume these meetings throughout the state, where the issue of inBloom arose each time.  Even before then, I had figured out that he was not my friend, and that he would surely deny any access to the emails if my name or my organization was associated with the FOIL.

On July 30, 2013, six weeks after the initial request, the NYSED Records Access Officer responded to our attorneys:

Note the above date that we would have to wait for, before we would learn whether they would provide any of this data or not – more than a year later on July 31, 2014! This is ridiculous amount of time to wait, given that these communications were clearly subject to the state’s public record law, and other states, including Louisiana and Illinois, had responded within a few weeks  to almost identical FOIA requests from parents and advocates trying to find out more about their state's participation in their inBloom data-sharing arrangements.  

After speaking to the NYSED Records Officer, Norman Siegel advised me that rather than take this denial to court, we should narrow our request, which we promptly did.  We selected  twelve individuals who were most likely to be involved in the state's communications and decisions as regards inBloom.  On August 16, we amended our request, now asking for the emails between the following state officials and the corporations mentioned above:

1.      Merryl Tisch, Chancellor of the Regents, including those sent from or received at her personal email address [mhtisch@mhtisch.com], which she commonly uses in her official capacity as Chancellor;

2.      John King, State Education Department Commissioner;

3.      Ken Wagner, State Education Department Associate Commissioner for Curriculum, Assessment, and Educational Technology;

4.      Ken Slentz, State Education Department Deputy Commissioner, P-12 Education;

5.      Amrit Singh, State Education Department, Regents Research Fellow;

6.      Ira Schwartz, State Education Department, Assistant Commissioner, Office of Accountability;

7.      Jay O'Connor, State Education Department, Office of Educational Management Services;

8.       Aleksey Kasavin, Regents Fellow, Regents Research Fund;

9.      Anthony Bottar, State Board of Regents;

10.    Valerie Grey, State Education Department Chief Operating Officer;

11.    Richard J. Trautwein, State Education Department General Counsel;

12.    Tom Dunn, State Education Department Director of Communications.

One week later, we received a reply from NYSED that our request was under consideration, and we would hear by September 9 as to whether our request would be granted or denied.  Predictably, September 9 came and went without any further communications from NYSED.

Finally, after several prodding phone calls by our attorneys to the Records Officer, on Nov. 7, 2013, she wrote back that our request was still under review, and that our request “would be granted in part on a rolling basis and be completed by November 28, 2014.”!!! 

Again, more than one year later. 

Contrast this to the situation in Louisiana, when a similar  Freedom of Information request by Lee Barrios to State Superintendent John White for the communications between state education officials and the Gates Foundation, the Shared Learning Collaborative, and/or Wireless Generation  was made on January 22, 2013.  The fulfillment of that request, including hundreds of emails, occurred in less than a month; on or before February 20, 2013.  (For excerpts from those fascinating emails see here and here.)  Less than two months later, on April 19, 2013, John White announced he was pulling out of inBloom.

In Illinois, a similar FOIA request to the Illinois State Board of Education was made by Julie Woestehoff of PURE in May 20, 2013; the first tranche of these emails was mailed to her on a CD on June 14, 2013; the second tranche  on June 26, 2013.  (The dates of her requests and the ISBE letters in responses are still available on the ISBE website.)  The Illinois State Commissioner announced the cancellation of that state's data-sharing deal on Nov. 27, 2013, leaving New York the last known client of inBloom.
 

In other words, the longest it took for Lousiana and Illinois  to fulfill a more expansive request for all the communications between their state education officials and these corporations was approximately six weeks. In contrast, despite a more limited request, the NY State Education Department said we would have to wait for more than a year without receiving a single email – and in the end, we might never receive a single one.

Our attorneys called NYSED and left numerous messages, to ask why it should take over 15 months to process the request, even though we had narrowed the scope as they had suggested. No one at NYSED would answer any of their calls.   Finally, on January 9, 2014, the attorneys appealed this effective denial to the Commissioner, in a letter posted here. (Yes, this is the mandated procedure; we had no choice but to appeal to King himself.)  Here is an excerpt of theappeal:

Then we waited, waited and waited even longer for the Commissioner’s decision on our appeal. 

Nine months later, on September 15, 2014, the attorneys finally received his decision, dated September 2.  

John King's decision concluded this way:

“Having considered factors such as the duties of the offices involved in responding to the amended FOIL request; the staff time available for this purpose; the necessity of legal review at various times; that some of the requested individuals are likely to possess multiple responsive records, many of which could require redactions; and the overall score of the request, I find that a “date certain” of November 28, 2014 is reasonable for the completion of SED’s response to the amended request.”  

Following this, more than two more months passed, and November 28, the date they had promised to start fulfilling our request, came and went without any action on their part.

I finally found an attorney willing to file an Article 78 appeal who would  only charge a minimal amount.  She had begun to prepare the legal papers when on December 10, 2014 it was announced that King was resigning as Commissioner to join Arne Duncan as his “senior advisor” at the US Department of Education.

The very next day, on December 11, 2014, Norman Siegel’s office emailed me that NYSED had finally responded to our request “in part” and they had received “a few hundred pages of information” in the form of documents and emails. Coincidence?  I think not. 

Our travails in having to wait 18 months for any of these communications, and then to receive them the day after King announced his resignation, is further evidence that the inordinate delay had been due not to the amount of staff time it would take to search for these emails, and make necessary redactions, but his decision to deny the public this information. This was a glaring contrast to his apparent eagerness to give away our children’s personal student data to inBloom and other vendors, without our consent.  

As to the issue of transparency: Just a few weeks ago, Cuomo vetoed two bills, passed unanimously by the Legislature.  One bill would have limited to two months the length of time a state agency can delay a court-ordered release of information while drafting an appeal; the other bill would have allowed judges to award attorney fees to individuals who win cases against state agencies that unfairly deny information with “no reasonable basis.”

After a barrage of criticism, Cuomo partially reversed his veto, by signing an executive order that would require “mov[ing] post-haste in filing a notice of appeal, setting the record on appeal, and filing a brief, within 60 days, absent extremely complex matters or extraordinary circumstances outside agency control.”  Whether this would require the state agencies to move more expeditiously before an appeal is brought in court is unclear to me. 

Check out Part II with events and the backstory from FOILed emails from 2011, showing the beginning of the data sharing project and how the Gates Foundation recruited John King into the project; Part III reveals how NYSED and Gates officials react to questions about their plans  in 2012, and Part IV recounts the launch of inBloom in 2013, soon followed by increasing controversy in the media and parent protests, leading to its collapse.

Twas the night before Christmas by Fred Smith

Fred Smith is a testing expert who used to work for the NYC Board of Ed and now works with the anti-testing group Change the Stakes. 

Dear Friends:

‘Twas the night before Christmas of 2015.
My poor head was spinning from all I had just seen.
ESEA revisions were clouding my brain
And Cuomo’s Task Force sugar plums causing me pain.

In the City the Chancellor held town halls in schools,
“Engaging” parents to tell them testing still rules.
A district supt. warned teachers of testing taboos
And not aiding parents who might want to refuse.

A new exam company was coming to town,
Having just won a $45 million test crown.
Yes, Questar will be here bedecked richly in green,
Bringing a bright shiny gift that was ne’er-before seen.

Soon enough I knew we would find ourselves captive
Of competence-based tests/computer adaptive.
But Pearson was still here to make ‘16’s test toys
To be given again to New York State’s girls and boys.

And ‘ere I descended into more gloom and fog,
An inner voice urged me to chug two mugs of nog.
My mind became fuddled with stark dueling visions
Of sky riders this night on opposite missions.

On the right was a sleigh dark-sided and shady
With curly-haired driver and a pearly white lady,
Whipping a dreary team of worn out work horses,
Having clearly lost sight of where the real Force is;

Still maintaining the will to accomplish their goal
To fill all children’s stockings with Common Core coal.
Though Andrew and Merryl might be losing their grip,
For now, they would go forth in their moonless sky ship.

And there on the left stood a sleigh wreathed in light,
Poised to keep sailing upward in glorious flight.
For on this voyage the crew never slumbers,
And everyone counts in ever growing numbers.

There’s no one commander playing ego trip games,
So before we proceed, here are some worthy names:
Diane Ravitch and Haimson and Scott and Burris,
Analysts, activists and writers who stir us;

Jeanette Deutermann, Lisa Rudley, Buffalo Chris
On Long Island and upstate—throw them a kiss;
Nichols-Stone-Mata-Sopp-Zavala had what it takes
Parents to start City opt out and change the stakes;

Lisa North, Jane Maisel and Rosalie Friend,
True educators from beginning to end—
With Jia-Jeanne-Katie-Nancy-Edith and Ruth
Unafraid to fight Power by speaking the Truth;

And let’s not forget Regents Rosa and Cashin—
Both know the score and bring the stature and passion.
If anyone was left off the list afore-scribed,
Please put the blame on the quaff that I have imbibed.

Back to the sleighs racing to our children this year,
My bet’s on the one with all the wondrous reindeer
And then there’s Mulgrew who must choose who is winning
To claim he was backing them from the beginning.

I’m riding shotgun tonight with the Doboszes
It’ll be 70 degrees; we won’t have red noses.
The reins in strong hands are pulled by Jamaal Bowman
Proven time and again he’s no melting snowman.

But seriously folks, our objectives this year:
To spread the joy of opt-out and lessen the fear;
To every City corner and to be very thorough;
To take back our schools for each child in each borough.

And though we’ve gained ground on the dark sleigh of the night
And while we firmly believe that our causes are right
We all are aware that we’re in a long fight.
But, hey—Happy Christmas to all and to all a good night!

~Fred Smith

How Class Size Matters helped the city save $727 million, and our plea to the Mayor how to use these funds to give an early Xmas present to NYC kids

Last February, on a lazy Sunday afternoon, I was perusing the list of DOE contracts due to be voted on that week by the Panel for Educational Policy. Among the long list of contracts, I noticed a proposed contract for equipment and internet wiring worth $1.1 billion over five years, extendable to nine years at two billion dollars. I had never seen a DOE contract that large before. 

Though no other details were provided to the public in advance, (something Helen Rosenthal, head of the City Council Contract committee, and I had already publicly complained about) I looked up the name of the company that was to be awarded this huge contract.  After googling "Custom Computer Specialists",I found a link to City Council testimony that I had given in October 2011, about the many wasteful and corrupt DOE technology contracts. 

I was astonished to discover that this very same company had been involved in a kickback scheme, robbing DOE of millions of dollars just a few years before, according to a report from the Special Investigator’s office.  This widely reported scandal subsequently sent Ross Lanham, a DOE consultant, to jail.

 I immediately blogged about my discovery, and promptly alerted Public Advocate Tish James and Council Member Helen Rosenthal, as well as members of the media.

On Monday, the very next day, DoE officials started getting lots of calls from reporters.  Later that day, the PEP Contract committee was due to meet at 5 pm at Tweed, the DOE headquarters.  I was sitting with a bunch of reporters in a room in Tweed, waiting for the meeting to begin when the reporters began getting emails from the DoE officials, announcing that that in the last 24 hours, the contract had somehow been "re-negotiated" and reduced by nearly half a billion dollars - with no change in the terms. 

It was still going to be a ridiculously high $635 million over five years, extendable for four more years at over $1 billion.  The fact that nearly $500 million could be cut out of the contract over night was even more evidence of how inflated the contract had been.  When the Contracts committee met, surprisingly few members asked any questions about it, except for Robert Powell, the Bronx appointee and head of the committee.

Here is my account of these events, as well as an article from the NY Post, in which Public Advocate Tish James called for DOE to withdraw the contract.  Geoff Decker in Chalkbeat NY wrote that the lack of information provided the public in advance called into question the 2010 revisions to mayoral control, which were supposed to provide more transparency and accountability for the awarding of contracts. 

Juan Gonzalez  in the Daily News provided even more details about the original scheme that had defrauded DOE of millions.  He  pointed out that the company being awarded the contract had been the high bidder among three companies, and that the man who was still CEO of the company, Gregory Galdi, had set up a real estate company with Ross Lanham that was dissolved only after Lanham’s arrest.  

At the subsequent PEP meeting on Wednesday evening, Helen Rosenthal and I pleaded with Chancellor Farina and the PEP members not to allow this unconscionable contract to be approved.  The Chancellor was obdurate that "due diligence" had been done and that awarding the contract would allow NYC kids to be "put in the future" while now they're "struggling in the past."

The DOE official in charge, David Ross, argued that the contract had to be rushed through in order for the city to have a chance of winning $100 million in federal E-rate funds - without mentioning that the DOE had been cut off from this program for the last five years because of the very same scandal that had sent Ross Lanham to jail.

I made this point when I had my two minutes to speak , and argued that by awarding a contract to this very same company, the DOE was almost sure to be barred from any reimbursement from the feds.  I also said that with a fraction of the amount, the DOE could double the number of schools to be built and significantly relieve school overcrowding. 

Laura Zingmond, the Manhattan PEP member, responded that there was “plenty of money” to go around for both building more schools and awarding this contract.  

CORRECTION: See below, Laura Zingmond's  comment and my response.  After looking at the video of the hearings  at 4.06, what she actually said was this:

“I’m a firm believer in technology in schools, I say this as a parent of a kid when she was in a middle school in a class of 38 kids for 3 years; there is a huge building crunch & need for more space but in 2015 its not either or. If the e-rate reimbursement is likely, it would be a shame to miss out on this.” 

Though some members expressed reservations, the PEP approved the contract 10-1, with only Robert Powell voting no.  More on this disappointing vote in my blog and in Schoolbook.  

 (Of course, a few months later when the underfunded school capital plan was proposed to the PEP, it was rubberstamped , without expanding it by even one seat.)

Then in March, a few weeks after the vote, the city cancelled the Custom Computer Specialists contract, the first time this has ever happened in the history of the DOE.  Possibly officials were concerned about how the NYC Comptroller and other oversight agencies would have questions about this egregious contract.

Today, Juan Gonzalez reports that after DOE rebid the contract and broke it into several smaller parts, the same work and equipment will cost city taxpayers far less: $472 million over five years, $163 million less than the renegotiated amount and $627 million less than what Custom Computer Specialists was originally supposed to receive before Tish James, Helen Rosenthal and I protested.  Assuming that the city is also now far likelier to receive $100 million in federal E-rate funds, we may have helped save the city $727 million.

Juan also reports that DOE now promises that the details of these contracts and all future contracts will be provided to the public a month in advance of every PEP vote.  Yet DOE officials also promised this last February, and this still has not occurred.  I am not holding my breath.  

It's encouraging that this contract was cancelled and substituted with a far less costly one; but it should never have been approved by the DOE and the PEP in the first place.  To propose awarding up to $2 billion to a contractor found to have engaged in a kickback scheme just a few years before is evidence of either extreme incompetence or corruption.  In either case, the people in charge of contracting at DOE should have been replaced. 

Juan's column ends this way: “As for Haimson, the parent advocate who blew the whistle on this, her shoe-string organization gets no finders fee for bringing the issue into the open. Here’s hoping Chancellor Fariña uses some of that money to at least reduce class size at a few schools. “

I agree.  These funds should be invested in smaller classes, and used to expand the number of schools to be built -- to alleviate the crisis in overcrowding – which at a recent town hall meeting in Queens, the Mayor claimed the city cannot afford to address.

So now I am asking you, Mayor de Blasio: It would take only $125 million to double the seats in the capital plan, a fraction of savings we helped ensure, which would be matched by the state according to the school construction reimbursement formula.   Another $125 million should be spent on hiring more teachers to reduce class size. 

Please allow NYC kids to have a better chance to learn in uncrowded conditions with smaller classes. I urge you to give our children and future generations of children an early Christmas present by making this possible.