[UPDATE: State Superintendent of Education John White and LDOE spokeswoman Rene Greer have yet to respond to numerous phone calls and email inquiries from The Independent over the past 24 hours regarding the department’s NCLB waiver application, despite public record statutes requiring them to do so. They also have failed to respond to Louisiana Press Association attorney Joshua Zelden, who told both White and Greer in an email Wednesday morning that “all documents created, and correspondence entered into, by government agencies in the course of their official business must be made available to all requestors immediately, unless a specific exception to the public records law is cited and clearly relevant and applicable.”

“There is no such exception in this case,” he says in the email. “Further, the burden is on the custodian of the public record to provide such an exception and you have failed to do so. Please provide evidence of an applicable exception or release the requested correspondence ... immediately.”

The Independent contacted the state Attorney General’s Office Wednesday afternoon and is awaiting a response on whether the office will get involved in the records battle. An AG’s office employee said Wednesday that the office cannot accept a formal complaint from the newspaper, as the AG’s office is charged with representing LDOE should The Independent decide to take civil action against the education department.

According to state law, the next available legal recourse is filing a civil lawsuit against LDOE. The Independent is undecided as of mid-day Thursday whether we will pursue legal action against the state agency.]

The 26 states applying for flexibility under the stringent federal No Child Left Behind requirements have been put on notice by the U.S. Department of Education that certain components of their waiver applications must be modified before gaining final approval. It’s a critical part of the process for states seeking to opt out of the law’s cumbersome achievement benchmarks and accountability systems, as the feedback from the feds outlines both strengths and weaknesses in the alternative plans offered up by each state on how to improve the quality of public education without the red tape attached to the signature federal education law.

Louisiana is among the 26 states (plus Washington, D.C.) requesting a waiver from NCLB provisions, and the application submitted by the Louisiana Department of Education is not immune to the federal scrutiny other state applications are receiving. The U.S. Education Department sent critique letters to states April 17, but the contents of Louisiana’s letter — i.e. the deficiencies in our state’s alternative plan for achieving higher academic performance — are still being shielded from the public as of noon Wednesday.

The Independent sent a public records request to LDOE’s public affairs office on April 24, asking for all correspondence the state agency has received from the federal education department regarding Louisiana’s NCLB waiver application. State law requires that such public documents be made available upon request immediately if the records are not in use. If the records are in use or the governing body believes the documents are not public record, the agency “must provide written reasons, including the legal basis, within three working days.”

A few hours after LDOE surpassed the 72-hour legal deadline for meeting our request, the department’s spokeswoman, Rene Greer, told the newspaper via email that “there is no final document to release.”

“We appreciate your previous reporting and ongoing interest in Louisiana’s waiver application process, which represents a crucial opportunity for our state to align our accountability system to college and career ready standards,” Greer says in the email.  “And we look forward to providing you with additional information as we finalize this work.”

She also included a note from U.S. DOE’s Libby Witt, who says the federal education department is not making public the states’ peer review feedback until the final applications are approved. When The Independent questioned a U.S. DOE spokeswoman on why a formal letter between two government agencies would not be considered public record, we were told to file a Freedom of Information Act request with U.S. DOE, which the paper has submitted.

In a Monday article appearing on The Washington Post’s website, Virginia’s feedback letter from the feds is published in its entirety. A Virginia Department of Education spokeswoman says in an email to The Ind that the agency released the document to media outlets requesting it, “as it is a FOIA-able document.”

The Independent believes a FOIA request is unnecessary because an official letter — written on federal letterhead — to LDOE from the U.S. Education Department does not fall under any of the exemptions outlined in our state’s public record laws. A Louisiana Press Association attorney agrees with The Independent’s assertions and has notified the LDOE spokeswoman that “if you are aware that the correspondence in question is indeed subject to public records release, yet willfully refuse to release it ... you could be potentially personally liable for damages, attorney’s fees, costs and even possible criminal fines and imprisonment.”

When U.S. Education Secretary Arne Duncan announced late last year that states could apply for NCLB relief, he made it clear that the waiver applications would have to meet certain criteria, and The Washington Post notes that “the back-and-forth between state and federal governments is an expected part of the application process.” Eleven states have already applied for — and received — relief from the stringent NCLB provisions. All 11 states received the same type of feedback from the U.S. Education Department as the current round of applicants, forcing the states to alter their proposals before the feds granted waivers.  

If Louisiana’s federal letter looks anything like the critique Virginia received April 17, the contents of the document will serve as the backbone for how Louisiana proceeds with improving public education at the state level, free from the federal requirements that many say have held us back on our path to reform. The Independent contends that LDOE is both legally — and morally — bound to share this critical information with the public. We also believe the state agency has been in violation of state public records laws since Friday afternoon, as the department should have known that the document does indeed qualify as a public record.

The newspaper is currently reviewing its legal options. Check back with our website for updates as more details are made available.

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