After waiting two years for DOE to respond to my FOILs, I filed an appeal

More than two years have passed without a substantive response to three Freedom of Information Law requests to the NYC Department of Education, so yesterday I filed an appeal with General Counsel Howard Friedman, pointing out these are "constructive denials" and thus violate the state FOIL law. 

The subjects of my requests are quite clear and the DOE should have easy access to this information.  It should have taken no more than a week at most to deliver to me data on their spending on technology, their spending on charter school leases and renovations, and to provide privacy agreements between DOE and third party organizations with whom they share personal student data.

Yet in no case have they produced any of this information, but have sent me the same boilerplate letters every four weeks or so, saying that "due to the volume and complexity of requests we receive and process, and to determine whether any records or portions thereof will be subject to redactions permitted under Public Officers Law §87(2), additional time is required to respond substantively to your request.”

In all three cases, three to six months have passed since I've heard anything at all from DOE about my requests, though all three are still listed as "Open" on the Open Records dashboard, here, here and here.

The NY Post sued the DOE in 2016 over its continual delays in responding to its FOILs, which they identified as "constructive denials."  Here is their legal petition  and here the memo of law.

The Post settled the lawsuit  in April 2018, when the DOE "agreed to reform what The Post called a 'pattern and practice' of endless delays and stonewalling" and to revise their "rules to halt the indefinite postponements — and stick to reasonable deadlines. New guidelines were approved in November."  I was quoted in the article as remaining skeptical.

The DOE revised the Chancellor's regulations on FOILs last December,  though the DOE FOIL page still posts the previous Chancellors regs from 2009, so you can see how seriously they take these new rules.   (The head of their FOIL office, Joseph Barandello, is also the DOE chief privacy officer who also keeps busy justifying DOE's violation of FERPA, including making student personal information to charter schools for recruiting purposes without parental consent.)

According to the new regs, the DOE was supposed to be more specific about its reasons for delaying responses, and to provide a more certain date when the request would be fulfilled.  As I write below, the only difference I saw was longer boilerplate  prose describing in more verbose terms exactly what they had earlier claimed, a longer gap between letters, and then no letters at all.

Analyses by Village Voice and Chalkbeat have found that the DOE is the worst record in responding to FOILs of any city agency.  The Mayor's overall record on this is particularly deplorable, since as Public Advocate he made the city's poor performance in responding to FOILs one of his signature issues and promised during his campaign to improve the process.

In response to a KidsPAC survey, he pledged the following: "I have a record of transparency and will ensure that under my administration, the DOE will be in full compliance with FOIL. As Public Advocate, I monitored and reported on the city’s compliance with the Freedom of Information Law (FOIL)."

Yet if anything, the DOE's performance on FOILs is worse now than it was under Bloomberg.

According to the Chancellor's regs, the DOE General Counsel is supposed to "issue a written decision on the appeal within ten (10) business days following receipt of the appeal and fully explain in writing the reasons for further denial, or provide access to the record sought."  I'll let you know if and when he does respond, and let you know what he says.

If he doesn't provide the information I've requested I will take it to court.  It is now easier to obtain legal representation as a new state law on FOILs  approved in December makes "attorney’s fees awards compulsory where a government agency had 'no reasonable basis' for denying access to a request."

Why public shaming of teachers is exactly what the corporate reformers want -- with nationwide implications for our public schools

The NYC teacher data reports were released on Friday; and it’s no surprise that Rupert Murdoch's  NY Post was the first out of the gate to name and shame a teacher with a low rating.  Sunday’s Post featured a photo of teacher at a Queens school, naming her and the school, with the headline, “The worst teacher in the city,” based on her TDR.  They also interview a parent at her school who says she should be fired.  

Expect this sort of thing to go on for weeks if not months – as the Post tries to publicly shame one teacher after another, plastering their photos in the paper, pursuing a virulent propaganda campaign to attack the union and eliminate teacher tenure. The only question remaining is how many other papers will follow suit and participate by naming names.  

A restraining order might be the only way to stop this -- given that teachers are not public figures and it is widely recognized that huge margins of error exist for these ratings.   

According to reporter Yoav Gonen of the NY Post, the DOE admitted at a press conference last week that the “average” error rate for a teacher's percentile ranking was 35 in math and 53 in ELA, with a maximum margin of error of 75 in math and 87 in ELA -- out of 100 points!  

And this does not even address the fact that with a different class of students, on a different day and/or a different test, the results could be significantly different; or that (of course) improving test scores only are one facet of what good teaching means.

Moreover, despite claims now from Walcott and other city officials that they had no choice but to release these unreliable ratings, this does not seem to have convinced reporters.  In fact, the DOE seemed eager for this exact scenario to occur.  See what Gonen tweeted about what the DOE said in court, arguing for the release of the TDRs: 

Beth Fertig of WNYC recounts what Joel Klein said, right before he left office to work for Rupert Murdoch:

Joel I. Klein, actively led the charge to release the ratings to the public when he was chancellor. Mr. Klein told WNYC during an “exit interview” in late 2010 that the teacher data reports were a valid measurement, despite the objections of educators.

Also check out the back story about the release of these ratings, from Anna Phillips of NYT/Schoolbook:

… Joel I. Klein, championed the reports’ release, telling reporters that he supported their publication by teachers’ names.

The Columbia Journalism Review reported that the Education Department’s press office went a step further, encouraging reporters to file Freedom of Information requests — known as foils — for the individualized reports. According to the Review article by Lynnell Hancock:

But the Department of Education had privately dropped hints to some reporters that their competitors had already submitted foils, some journalists countered. Suspicions had been raised when the department responded to the foils with uncharacteristic speed. Normally, such requests took months, with layers of negotiations, said Maura Walz, a reporter for GothamSchools.org, an independent online news service. This time, it was service with a smile. “The Department of Education wants this out,” said Ian Trontz, a New York Times metro editor. “They have a lot of faith in these reports. They believe they are trustworthy enough to educate and empower parents.”

Still, empowering parents had not seemed to be a top goal in the past for this administration. To the most skeptical reporters, it appeared as if the city was using them. 

And when the rankings were first created in 2008 as part of a pilot program to evaluate teachers, a then-deputy chancellor, Christopher Cerf, said it would be a “powerful step forward” to have the teacher measurements made public, arguing, “If you know as a parent what’s the deal, I think that whole aspect will change behavior.”

Though Bill Gates wrote an oped against the public release of the TDRs last week, it was too little and too late.  In fact, he and Arne Duncan supported the LA Times release of similar unreliable ratings in 2010, which named teachers with low ratings,  with Duncan saying,  "What's there to hide?" 

Indeed, he and Duncan have pushed relentlessly for states to create numerical teacher rating systems based at least in part on value-added student test scores.  The feds made this condition for states to be considered for Race to the Top funds and now,  in order to obtain a waiver from NCLB.  

So far at least 33 states are in the process of developing and implementing such systems – including NY state -- and more are caving in every day.  This Gannett article explains how the NY state teacher ratings will likely be FOILable and published for every public school teacher in the state – and the same may be true of nearly all public school teachers in the nation.  

Gates is also creating a national database to hold confidential teacher and student information, without their consent, to be operated by Wireless Generation -- owned by Rupert Murdoch of the NY Post. 

The Gannett article contains a quote from Andy Rotherham, leading corporate reformer and a member of the advisory board of the new Gates database center, arguing in favor of the release of the TDRs in New York City:

"....public ratings would level the playing field for parents who aren’t plugged in on the best and worst teachers. And districts might have to address community desires when making personnel decisions.'Would it help create more incentives to address personnel if you had this sort of pressure?' [Rotherham] said."

As a result of this public shaming, which does not exist for any other profession, teaching in our public schools may become even more a temporary way-station for recent college grads, who will teach for only one or two years until they decide on a career with more stability, more income, and more respect from society.  

Anyone with a real interest in the profession long term will likely opt  to teach instead at a charter school or private schools, which will be free from having to implement these highly unreliable and reductionist teacher evaluation systems and/or make them public.  

In this way, the corporate  reform crowd will have achieved their goal, while fatally damaging quality public education in this country – with our public schools will in future become the repository for only those students who cannot get into private or charter schools, especially those with special learning needs, physical disabilities, or  recent immigrants.   

Someone, please, tell me why I am wrong!  Quick!