It’s nearly springtime, when a young man’s fancy turns to thoughts of the National Assessment of Educational Progress (NAEP). At least in odd-numbered years. I’m not so young, but lately I’ve been thinking about NAEP, which is widely regarded as the best barometer of changes over time in the academic performance of U.S. students. No assessment can do all that we ask of it, but NAEP is a well-designed project supported by $130 million per year in federal funds.

Though not a substitute for careful evaluations of particular programs and policies, NAEP does crop up frequently in education policy circles. In New York state and New York City, for example, the discrepancy between trends in performance on the fourth- and eighth-grade reading and math NAEP tests (which were largely flat between 2007 and 2009) and the performance of the same population of students on the state’s own annual assessments (which skyrocketed over the same period) led New York state to change the threshold for student proficiency in 2010, and to make the state tests more challenging and less predictable.

The disparity also called into question Mayor Michael Bloomberg’s and Chancellor Joel Klein’s claims about progress in student performance and closing the city’s achievement gaps. There’s little doubt that the mayor and chancellor were annoyed with pesky reporters and bloggers using NAEP scores to poke holes in their claims.

This led me to speculate about how they might have responded. If you believe that tests are de factomeasures of student learning, and that therefore test prep and teaching to the test are to be encouraged rather than vilified, why not do test prep for NAEP? It’s probably not illegal—although test prep for NAEP would certainly distort comparisons of performance over time and across urban school districts. Might Joel Klein, in the waning days of his tenure as chancellor in 2010, have put in place a NAEP test prep initiative for the Spring 2011 NAEP administration in New York City?

(Photo by David R. Tribble)

I don’t know. But I figured I could ask. So in July 2011, I filed a request for public records with the New York City Department of Education. New York state, as is true of most places, has enacted aFreedom of Information Law(FOIL) that provides public access to most records maintained by public agencies, to support an open and responsible government. There are, of course, records that are exempt from disclosure, such as those pertaining to trade secrets or those that would constitute an unwarranted invasion of personal privacy.

I wasn’t asking for anything like that, and an agency can always redact anything it deems irrelevant to the request or inappropriate to disclose. (This is why so much of Joel Klein’s email correspondence released in response to FOIL requests consists of blacked-out pages.) I was fairly specific in my requests, asking for email communications and letters among Department of Education (DOE) personnel relating to preparing students to take the 2011 NAEP assessments, including test preparation materials, memoranda, directives and/or instructions issued to central DOE personnel and/or personnel at elementary and/or middle schools regarding the policies and procedures for preparation for, and administration of, the 2011 NAEP assessments in New York City. There were a few other specific requests, and I followed guidance from successful requests in crafting the language of the letter. For example, I asked that the DOE disclose records as soon as they were identified rather than wait to gather all records.

New York’s FOIL law requires that an agency respond within five days to a reasonably described record request, and either (a) make the records available; (b) deny the request in writing; or (c) if it is unable to respond to the request within 20 business days, state in writing both the reason for the inability to grant the request within 20 business days and a reasonable, specific date when the request will be granted in whole or in part.

But the New York City DOE routinely fails to comply with this provision of the law.

Every month, I receive a letter that reads: “Pursuant to Section VI.B of Chancellor’s Regulation D-110, 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. Accordingly, a response is currently anticipated by [date],” where the date given is one month in the future. And, when that date rolls around, I get the next month’s letter, identical except for a new anticipated date.

My initial reaction was that this Chancellor’s Regulation must be pretty powerful to trump state law. But the regulation simply states how the NYC DOE is to comply with the FOIL law. Section VI.B pertains to responses to FOIL requests, particularly the responsibility of the Central Records Access Officer to determine a reasonable amount of time in which to grant the request. State regulations do allow the volume of requests and their complexity to be taken into account in determining a reasonable time.

But neither the FOIL law nor the Chancellor’s Regulation that must adhere to it allows an agency to delay a response indefinitely. I requested these records 19 months ago, and still have no idea when, if ever, the DOE will grant access to them, as the law requires.

I’m not alone in this situation. Advocates for Children of New York and the Asian American Legal Defense and Education Fund filed an unsuccessful lawsuit seeking to compel the DOE to comply with a series of FOIL requests to which the DOE only partially responded. Their case showed the same pattern of monthly unilateral delays in responding.

Fernanda Santos, former New York Times beat reporter for the city schools, just got a partial response to a FOIL request she filed 26 months ago. Santos is now the Phoenix bureau chief for TheTimes, but she’s passed the information on to her successor, Al Baker. And, outside of New York, journalist John Merrow, whom I respect greatly, has been stymied in his efforts to get to the bottom of how the District of Columbia Public Schools responded to allegations of test cheating under Chancellor Michelle Rhee. District of Columbia agencies have not responded to his FOIA requestsfrom nearly eight months ago for a memo that is known to exist.

The obvious counterpoint to this record of delays in New York City and Washington, D.C. is how the NYC DOE responded to the FOIL requests submitted in October 2010 by many New York media organizations for public release of the Teacher Data Reports, the city’s version of value-added measures of teachers’ performance. Despite the complexity of the request, the DOE was prepared to respond the day after the request—and maybe even the day before.

Public agencies shouldn’t be able to pick and choose which requests for public information they respond to, escalating some while stalling on others. It’s antithetical to the spirit and letter of the law, which exists to promote openness, responsiveness and trust in our political institutions.

Did New York City put its thumb on the scale by engaging in test prep for NAEP? Are officials hiding the presence of their thumb? We don’t know, because the DOE has not released any relevant records in the past 19 months. In the meantime, the 2013 NAEP administration is already under way.

Thumbs down on public transparency and accountability.