The Leak that the Ed Dept’s IG Should be Investigating

As the Inspector General at the U.S. Department of Education investigates allegations that Department officials leaked confidential information to short sellers, we at Higher Ed Watch would also urge her to revisit an earlier leak case at the agency that — to the best of our knowledge — has never been resolved.

In 2005, officials with the Apollo Group, the parent company of the University of Phoenix, scored a major coup. Someone at the Education Department sent them a set of documents outlining the legal strategy of a pair of whistleblowers who were suing the giant for-profit school chain for allegedly defrauding the government of billions of dollars. The documents, which the corporation had sought to obtain through the Freedom of Information Act, included the names and contact information of confidential witnesses whose identities were never supposed to have been revealed.

A year later, Education Department lawyers realized that what had happened and demanded the return of the documents, which they said had been released “in error.” The Apollo Group, however, refused, saying the Department’s release of the records had put them in the public record.

Lawyers for the whistleblowers in the case — former University of Phoenix recruiters Mary Hendow and Julie Albertson — had filed the lawsuit under the federal False Claims Act, which required them to share documents with the federal agencies involved in the case. They were shocked to find that the company had gotten hold of these records. “It’s as if we had a burglar come into our office and rummaged through our files,” Daniel Bartley, one of the lawyers told The Chronicle of Higher Education, which broke the story in October 2006. (The University of Phoenix settled the lawsuit in December 2009 for $78.5 million.)

For their part, Apollo Group’s lawyers did not buy the Education Department’s claims that the records have been released accidentally. “The FOIA request was the subject of intense and protracted scrutiny at multiple levels within the department,” Joseph Busch wrote in a letter to the U.S. attorney’s office in Calfornia, according to the Chronicle. “Given the amount of effort devoted by the department in responding to the FOIA request, it is hard to believe that there was any inadvertent production of documents.”

As far as we can tell, the Bush administration officials who were in charge of the Education Department at the time never came clean about who was responsible for the release of the confidential and privileged records. Was it a FOIA officer who had acted inadvertently? Or was it someone higher up the food chain — with ties to the for-profit higher education industry — who was deliberately trying to undermine the whistleblowers’ case?

At Higher Ed Watch, that’s a leak investigation we would like to see.