CREW v. U.S. Department of Education: Regarding For-Profit Education: 2/16/11 - Defendant's Motion...

8/7/2019 CREW v. U.S. Department of Education: Regarding For-Profit Education: 2/16/11 - Defendant's Motion for Summary

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND :

ETHICS IN WASHINGTON, :

Plaintiff :

CA No. 10-01712 (RMC)

v. :

UNITED STATES DEPARTMENT :

OF EDUCATION, :

Defendants.

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

United States Department of Education through and by undersigned counsel, hereby

submits this Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil

Procedure.

In support of this motion, Defendant respectfully refers the Court to the accompanying

Statement of Material Facts Not In Genuine Dispute, Memorandum of Points and Authorities in

Support and declarations from the agency. A proposed Order consistent with this Motion is

Case 1:10-cv-01712-RMC Document 7 Filed 02/16/11 Page 1 of 25


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attached hereto.

Respectfully submitted,

RONALD C. MACHEN Jr. , D.C. Bar #447889

United States Attorney

RUDOLPH CONTRERAS, D.C. Bar #434122

Chief, Civil Division

By: /s/ Rhonda C. Fields

RHONDA C. FIELDS

Assistant United States Attorney

Civil Division

555 Fourth Street, N.W.

Washington, D.C. 20530

202/514/6970Fax: 202/514/8780

Of Counsel:

Jill Siegelbaum

Attorney

Division of Business and Administrative Law

Office of the General Counsel

U.S. Department of Education

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Plaintiff :

CA No. 10-01712 (RMC)

v. :


OF EDUCATION, :

Defendants.

STATEMENT OF MATERIAL FACTS

AS TO WHICH THERE IS NO GENUINE DISPUTE

1 The Freedom of Information Act ("FOIA") Service Center ("FSC") of the U.S.

Department of Education's ("Department") Office of Management ("OM") received a Freedom of

Information request from Plaintiff CREW on July 23, 2010. (Cook Dec. 4). The request asked

for "any and all records of or reflecting communications from April 20, 2009, to the present to,

from, and/or between officials at Education regarding for-profit education and any and all of the

following eleven named entities and/or individuals:

(1) Mr. Steven Eisman;

(2) Any or all individuals identified as officers, directors, or employees of FrontPoint

Partners, LLC;

(3) Any or all individuals identified as officers, directors, or employees of Morgan

Stanley Investment Management, Inc.;

(4) Deputy Undersecretary of Education Robert Shireman;

(5) Ms. Pauline Abernathy;

(6) Any or all individuals identified as officers, directors, or employees of the Institute for

College Access and Success;

(7) Mr. Barmak Nassirian;

(8) Any or all individuals identified as officers, directors, or employees of theAmerican



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Association of Collegiate Registrars and Admissions Officers;

(9) Mr. Manuel P. Asenio;

( 10) Any or all individuals identified as officers, directors, or employees of The Alliance

for Economic Stability;

(11) Ms. Johnette McConnell Early.

(Landis Dec. 5).

2 On October 25, 2010, CREWs Chief Counsel, Ms. Weismann, clarified the scope of the

request by informing the Department that "to the extent that [her] request seeks internal

Departmental communications regarding for-profit education, [she is] seeking only internal

communications regarding any Departmental communications with the outside entities listed in

[her] FOIA request." Id.

3 The request was assigned to the following Departmental offices for processing on August

18, 2010: the Office of Communication and Outreach ("OCO"), the Office of Legislative and

Congressional Affairs ("OLCA"), the Office of Postsecondary Education ("OPE"), and the Office

of the Undersecretary ("OUS"). OUS sent the request to the Office of Planning, Evaluation and

Policy ("OPEPD") on November 3, 2010. (Cook Dec. 6).

4 On November 23, 2010, the Defendant provided CREW with an interim response to its

FOIA request, comprised of 42 pages of records from OPEPD and 8 pages of records from OCO.

These records were provided to CREW in full. The interim response also notified CREW that

OLCA had no records responsive to the request. (Cook Dec. 8).

5 On December 3, 2010, Defendant provided CREW with its final response to the FOIA

request. This response consisted of 1,354 pages of records from OPE and 506 pages of records

from OUS. (Cook Dec. 9). OPE redacted information on only four (4) of the 1,354 pages.

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(Smith Dec. 10-12). OUS released all 506 pages in full. (Arsenault Dec. 9).

6 On or around December 22, 2010, while processing an unrelated FOIA request, OPE

identified one document that may have been responsive to CREW's FOIA request that was not

provided on December 3, 2010. This record was provided in full to CREW on December 22,

2010. (Cook Dec. 10).






By: /s/ Rhonda C. Fields

RHONDA C. FIELDS


Civil Division



202/514/6970

Fax: 202/514/8780Of Counsel:

Jill Siegelbaum

Attorney




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Plaintiff :

CA No. 10-01712 (RMC)

v. :


OF EDUCATION, :

Defendant.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

DEFENDANT'S MOTION TO DISMISS AND FOR SUMMARY JUDGMENT

Defendant respectfully submits the memorandum of points and authorities in support of

Defendant's motion to dismiss and for summary judgment.

STATEMENT OF FACTS

The Freedom of Information Act ("FOIA") Service Center ("FSC") of the U.S.

Department of Education's ("Department") Office of Management ("OM") received a Freedom of

Information request from Plaintiff CREWon July 23, 2010. (Cook Dec. 4). The request asked

for "any and all records of or reflecting communications from April 20, 2009, to the present to,

from, and/or between officials at Education regarding for-profit education and any and all of the

following eleven named entities and/or individuals:

(1) Mr. Steven Eisman;

(2) Any or all individuals identified as officers, directors, or employees of FrontPoint

Partners, LLC;

(3) Any or all individuals identified as officers, directors, or employees of Morgan

Stanley Investment Management, Inc.;

(4) Deputy Undersecretary of Education Robert Shireman;

(5) Ms. Pauline Abernathy;



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(6) Any or all individuals identified as officers, directors, or employees of the Institute for

College Access and Success;

(7) Mr. Barmak Nassirian;

(8) Any or all individuals identified as officers, directors, or employees of theAmerican

Association of Collegiate Registrars and Admissions Officers;

(9) Mr. Manuel P. Asenio;

( 10) Any or all individuals identified as officers, directors, or employees of The Alliance

for Economic Stability;

(11) Ms. Johnette McConnell Early.

(Landis Dec. 5).

On October 25, 2010, CREWs Chief Counsel, Ms. Weismann, clarified the scope of the

request by informing the Department that "to the extent that [her] request seeks internal

Departmental communications regarding for-profit education, [she is] seeking only internal

communications regarding any Departmental communications with the outside entities listed in

[her] FOIA request." Id.

The request was assigned to the following Departmental offices for processing on August

18, 2010: the Office of Communication and Outreach ("OCO"), the Office of Legislative and

Congressional Affairs ("OLCA"), the Office of Postsecondary Education ("OPE"), and the Office

of the Undersecretary ("OUS"). OUS sent the request to the Office of Planning, Evaluation and

Policy ("OPEPD") on November 3, 2010. (Cook Dec. 6).

On November 23, 2010, the FSC provided CREW with an interim response to its FOIA

request, comprised of 42 pages of records from OPEPD and 8 pages of records from OCO.

These records were provided to CREW in full. The interim response also notified CREW that

OLCA had no records responsive to the request. (Cook Dec. 8).

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On December 3, 2010, Defendant provided CREW with its final response to the FOIA

request. This response consisted of 1,354 pages of records from OPE and 506 pages of records

from OUS. (Cook Dec. 9). OPE redacted information on only four (4) of the 1,354 pages.

(Smith Dec. 10-12). OUS released all 506 pages in full. (Long Dec. 11).

On or around December 22, 2010, while processing an unrelated FOIA request, OPE

identified one document that may have been responsive to CREW's FOIA request that was not

provided on December 3, 2010. This record was provided in full to CREW on December 22,

2010. (Cook Dec. 10).

ARGUMENTI. Standard of Review

Motion for Summary Judgment

Where no genuine dispute exists as to any material fact, summary judgment is required.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). A genuine issue of material fact is one

that would change the outcome of the litigation. Id. at 247. The burden on the moving party

may be discharged by showing -- that is, pointing out to the [Court] -- that there is an absence

of evidence to support the non-moving partys case. Sweats Fashions, Inc. v. Pannill Knitting

Co., Inc., 833 F.2d 1560, 1563 (Fed. Cir. 1987).

Once the moving party has met its burden, the non-movant may not rest on mere

allegations, but must instead proffer specific facts showing that a genuine issue exists for trial.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Thus, to avoid

summary judgment here, the Plaintiff (as the non-moving party) must present some objective

evidence that would enable the Court to find he is entitled to relief. InCelotex Corp. v. Catrett,

the Supreme Court held that, in responding to a proper motion for summary judgment, the party

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who bears the burden of proof on an issue at trial must make a sufficient showing on an

essential element of [his] case to establish a genuine dispute. Celotex, 477 U.S. 317, 322-23

(1986). InAnderson the Supreme Court further explained that the mere existence of a scintilla

of evidence in support of the Plaintiff's position will be insufficient; there must be evidence on

which the jury could reasonably find for the Plaintiff. Anderson, 477 U.S. at 252; see also

Laningham v. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987) (the non-moving party is required to

provide evidence that would permit a reasonable jury to find in its favor).

In Celotex, the Supreme Court further instructed that the [s]ummary judgment

procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral

part of the Federal Rules as a whole, which are designed to secure the just, speedy and

inexpensive determination of every action. 477 U.S. at 327 (quoting Fed. R. Civ. Pro. 1).

The summary judgment standards set forth above also apply to FOIA cases, which are

typically decided on motions for summary judgment. See Cappabianca v. Commissioner, U.S.

Customs Serv., 847 F. Supp. 1558, 1562 (M.D. Fla. 1994) (once documents in issue are properly

identified, FOIA cases should be handled on motions for summary judgment) (citing Miscavige

v. IRS, 2 F.3d 366, 368 (11th Cir. 1993)). In a FOIA suit, an agency is entitled to summary

judgment once it demonstrates that no material facts are in dispute and that each document that

falls within the class requested either has been produced, not withheld, is unidentifiable, or is

exempt from disclosure. Students Against Genocide v. Dept. of State, 257 F.3d 828, 833 (D.C.

Cir. 2001); Weisberg v. U.S. Dept. of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980).

An agency satisfies the summary judgment requirements in a FOIA case by providing

the Court and the Plaintiff with affidavits or declarations and other evidence which show that the

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documents in question were produced or are exempt from disclosure. Hayden v. NSA, 608 F.2d

1381, 1384, 1386 (D.C. Cir. 1979), cert. denied, 446 U.S. 937 (1980); Church of Scientology v.

U.S. Dept. of Army, 611 F.2d 738, 742 (9th Cir. 1980); Trans Union LLC v. FTC, 141 F. Supp.

2d 62, 67 (D.D.C. 2001) (summary judgment in FOIA cases may be awarded solely on the basis

of agency affidavits when the affidavits describe the documents and the justifications for non-

disclosure with reasonably specific detail, demonstrate that the information withheld logically

falls within the claimed exemption, and are not controverted by either contrary evidence in the

record nor by evidence of agency bad faith.) (quoting Military Audit Project v. Casey, 656 F.2d

724, 738 (D.C. Cir. 1981)). See also Public Citizen, Inc. v. Dept. of State, 100 F. Supp. 2d 10, 16

(D.D.C. 2000), affd in part, revd in part, 276 F.3d 634 (D.C. Cir. 2002).

II. Adequate Searches Were Conducted

In responding to a FOIA request, an agency must conduct a reasonable search for

responsive records. Oglesby v. U.S. Dept. of Army, 920 F.2d 57, 68 (D.C. Cir. 1990); Cleary,

Gottlieb, Steen & Hamilton v. Dept. of Health, et al., 844 F. Supp. 770, 776 (D.D.C. 1993);

Weisberg v. U.S. Dept. of Justice, 705 F.2d 1344, 1352 (D.C. Cir. 1983). This reasonableness

standard focuses on the method of the search, not its results, so that a search is not unreasonable

simply because it fails to produce responsive information. Cleary, Gottlieb, 844 F. Supp. at 777

n.4. An agency is not required to search every record system, but need only search those systems

in which it believes responsive records are likely to be located. Oglesby, 920 F.2d at 68.

Consistent with the reasonableness standard, the adequacy of the search is dependent upon the

circumstances of the case. Truitt v. Dept. of State, 897 F.2d 540, 542 (D.C. Cir. 1990). The

fundamental question is not whether there might exist any other documents responsive to the

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request, but rather whether the search for those documents was adequate. Steinberg v. Dept. of

Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (quoting Weisberg v. Dept. of Justice, 745 F.2d 1476,

1485 (D.C. Cir. 1984)).

Even when a requested document indisputably exists or once existed, summary

judgment will not be defeated by an unsuccessful search for the document so long as the search

was diligent and reasonable. Nation Magazine, Washington Bureau v. U.S. Customs Service, 71

F.3d 885, 892 n.7. (D.C. Cir. 1995). Additionally, the mere fact that a document once existed

does not mean that it now exists; nor does the fact that an agency created a document necessarily

imply that the agency has retained it. Maynard v. CIA, 986 F.2d 547, 564 (1st Cir. 1993).

The burden rests with the agency to establish that it has made a good faith effort to

conduct a search for the requested records, using methods which can be reasonably expected to

produce the information requested. Oglesby, 920 F.2d at 68; see SafeCard Servs. v. SEC, 926

F.2d 1197, 1201 (D.C. Cir. 1991). An agency may prove the reasonableness of its search

through affidavits of responsible agency officials so long as the affidavits are relatively detailed,

non-conclusory and submitted in good faith. Miller, 779 F.2d at 1383; Goland v. CIA, 607 F.2d

339, 352 (D.C. Cir. 1978), cert. denied, 445 U.S. 927 (1980). Although the agency has the

burden of proof on the adequacy of its search, the affidavits submitted by an agency are

accorded a presumption of good faith, Carney v. Dept. of Justice, 19 F.3d 807, 812 (2d Cir.

1994), cert. denied, 513 U.S. 823 (1994) (quoting SafeCard Servs., 926 F.2d at 1200). Thus,

once the agency has met its burden regarding adequacy of its search, the burden shifts to the

requester to rebut the evidence by a showing of bad faith on the part of the agency. Miller v. U.S.

Dept. of State, 779 F.2d 1378, 1383 (8th Cir.1985). A requester may not rebut agency affidavits

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with purely speculative allegations. See Carney, 19 F.3d at 813; SafeCard, 926 F.2d at 1200;

Maynard v. CIA, 986 F.2d 547, 559-560 (1st Cir. 1993).

The Defendants Freedom of Information Act Service Center received CREWs FOIA

Request No. 10-01704-F on July 23, 2010. The request was assigned to the following

Departmental offices for processing on August 18, 2010: the Office of Communication and

Outreach ("OCO"), the Office of Legislative and Congressional Affairs ("OLCA"), the Office of

Postsecondary Education ("OPE"), and the Office of the Undersecretary ("OUS"). OUS sent the

request to the Office of Planning, Evaluation and Policy ("OPEPD") on November 3, 2010.

(Cook Dec 6). FSC identified the first four offices as offices likely to have responsive records

based on FSC's understanding of the subject areas raised in FOIA Request No. 10-01704-F.

Consistent with its established practices, the FSC relied upon the assigned offices - which have

superior subject matter knowledge of the issues raised in the FOIA request - to identify any

additional offices that are likely to have records responsive to the request. With the exception of

OUS's identification of OPEPD, no additional offices were so identified. (Cook Dec. 7).

Office of Communications and Outreach (OCO)

OCO received the CREW FOIA request on August 8, 2010. (Landis Dec. 3). OCO is

responsible for overall leadership for the Department in its communications and outreach

activities that are designed to engage the general public as well as a wide variety of education,

community, business, parent, academic, student, and other groups, including the media,

intergovernmental and interagency organizations, and public advocacy groups in the President's

and Secretary's education agenda. OCO was involved in the for-profit education/gainful

employment regulation process in this capacity. Id. 6.

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After reviewing the OCO employees involved in the gainful employment regulation

process, OCO identified the following individuals as reasonably likely to have records responsive

to this FOIA request based on their individual roles in the rulemaking process: Peter

Cunningham, John McGrath, David Hoff, Massie Ritsch, Stacey Jordon, Alberto Ratana, Cynthia

Dorfman, and Tim Tutton. There are no other individuals in OCO who are reasonably likely to

have records responsive to this request. Id. 7. The identified individuals maintain the types of

communications sought by Ms. Weismann in their individual Departmental email accounts.

Based on the recollection of the Departments subject matter experts, no hard-copy

communications were created or received by OCO that would be responsive to this request.

There are no other locations where responsive records are reasonably likely to be located. Id. 8.

Each of the individuals identified above conducted an electronic search of their entire

email accounts for communications to or from the individuals or entities: Steve Eisman,

FrontPoint Partners, Morgan Stanley Investment Management, Pauline Abernathy, Institute for

College Access and Success, Barmak Nassirian, American Association of Collegiate Registrars

and Admissions Officers, Manuel Asensio, the Alliance for Economic Stability, and Johnette

Early, as set forth in the FOIA request. Pursuant to Ms. Weismann's October 25, 2010

clarification, they also searched the text of all internal emails in addition to the to/from lines and

the subject line including those sent to or received from Departmental employee Robert

Shiremanfor any mention of the entities listed above. Pursuant to Ms. Weismann's October

25, 2010 clarification, internal emails to or from Robert Shireman that did not mention the

external entities listed above were not retrieved for review. Affiant Landis then reviewed the

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individual emails retrieved by these electronic searches for responsiveness to the FOIA request

and subsequent clarification. Id. 9.

On or about November 18, 2010, OCO provided the Department's FOIA Service Center

with 8 pages responsive to this FOIA request. These records were released to CREW on

November 23, 2010. All of these pages were released in full without redactions. Id. 10.

On January 4, 2011, OCO confirmed that a search of all locations described above

using the correct spelling of the name "Asensio" returned no additional responsive records. Id.

11.

Office of Legislative and Congressional Affairs (OLCA)

OLCA serves as the Department's liaison in responding to the needs of Congress, and

was involved in the for-profit education/gainful employment rulemaking process in this capacity.

(Meyer Dec. 6). After reviewing the OLCA employees involved in the gainful employment

regulation process, OLCA determined that Kristen Adams is the only individual in OLCA

reasonably likely to have records responsive to this FOIA request. Ms. Adams is the only

employee in OLCA whose responsibilities include higher education issues. There are no other

individuals in OLCA who are reasonably likely to have records responsive to this request. Id.

7. Ms. Adams maintains the types of communications sought by Plaintiff in her individual

Departmental email account. There are no other locations where responsive records are

reasonably likely to be located. Id. 8.

On October 21, 2010, OLCA informed the Department's FOIA Service Center that it

had no records responsive to this FOIA request. Id. 9. OLCA's search for records was

originally conducted by Theresa Toye, OLCA's former FOIA Coordinator. Ms. Toye has been

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out of the office since December 20, 2010, and her last day at the Department was February 3,

2011. Without Ms. Toye's assistance, OCLA was unable to confirm or document the search it

originally conducted for responsive records. Id. 10. Therefore, to confirm that it had no

records responsive to this request, on February 3, 2011, OLCA conducted an electronic search of

Kristen Adams' email accounts for references to the following individuals or entities with no date

range: "Eisman," "FrontPoint," "Stanley Investment," "Pauline Abernathy," "Institute for College

Access and Success," "Nassirian," "American Association of Collegiate Registrars and

Admissions Officers," "Asensio," "Alliance for Economic Stability," and "Johnette." OLCA also

conducted an electronic search for the terms "Profit" and "Shireman" using the date range

4/20/09 7/23/10, which was the term of Mr. Shireman's tenure as the Deputy Undersecretary of

Education. Pursuant to Ms. Weismann's October 25, 2010 clarification, OLCA searched the body

of internal emailsincluding those sent to or received from Departmental employee Robert



external entities listed above were not retrieved for review. OLCA also searched all hard-copy

correspondence for responsive records; no responsive records were identified. OLCA then

reviewed the individual emails retrieved by these electronic searches for responsiveness to the

FOIA request and subsequent clarification. Id. 11. OLCA's February 3, 2011 search confirmed

that it has no records responsive to this request. Id. 12.

Office of Postsecondary Education (OPE)

OPE serves as the Department's principle policy advisor on postsecondary education

matters. Within this role, OPE was responsible for primary management of the rulemaking

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process for the Department's gainful employment regulations. Specifically, OPE was primarily

responsible for running the negotiated rulemaking process, drafting the notice of proposed

rulemaking, analyzing all incoming comments on the proposed rules, and holding primary

responsibility for drafting the final rules. (Smith Dec. 6).

After reviewing the OPE employees involved in the gainful employment regulation

process, OPE identified the following individuals as reasonably likely to have records responsive

to this FOIA request based on their individual roles in the rulemaking process: Fred Sellers, John

Kolotos, David Bergeron, Dan Madzelan and affiant Smith. There are no other individuals in

OPE who are reasonably likely to have records responsive to this request. Id. 7. Mr. Sellers,

Mr. Kolotos, Mr. Bergeron, Mr. Madzelan and affiant Smith maintain the types of

communications sought by Ms. Weismann in their individual Departmental email accounts. OPE

also searched all hard copy correspondence for records responsive to this request. There are no

other locations where responsive records are reasonably likely to be located. Id. 8.

Each of the identified individuals conducted an electronic search of their entire email

accounts for communications to or from the following individuals or entities: Steve Eisman,

FrontPoint Partners, Morgan Stanley Investment Management, Pauline Abernathy, Institute for

College Access and Success Barmak Nassirian, American Association of Collegiate Registrars

and Admissions Officers, Manuel Asensio, the Alliance for Economic Stability, and Johnette

Early, as set forth in the FOIA request. OPE's hard-copy correspondence database was also

searched using the same search terms. Pursuant to Ms. Weismann's October 25, 2010

clarification, OPE also searched the text of all internal emails in addition to the to/from lines and

the subject lineincluding those sent to or received from Departmental employee Robert

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external entities listed above were not retrieved for review. Affiant Smith then reviewed the

individual emails retrieved by these electronic searches for responsiveness to the FOIA request

and subsequent clarification. Id. 9.

On December 1, 2010, OPE provided the Department's FOIA Service Center with

1,354 pages responsive to this FOIA request. These records were released to CREW on

December 6, 2010. Four of the 1,354 pages provided by OPE contained redactions. Id. 10.

Between January 4 and January 18, 2010, all OPE personnel identified above as

possibly having responsive documents confirmed that a search of all locations described above


13.

Office of the Undersecretary (OUS)

OUS oversees policies, programs, and activities related to postsecondary education,

vocational and adult education, and federal student aid. OUS was involved in the for-profit

education/gainful employment regulation process in these capacities. (Arsenault Dec. 6).

OUS identified Robert Shireman and James Kvaal as the primary individuals who

would likely have records responsive to this request. Mr. Shireman served as the Deputy

Undersecretary of Education within OUS from April 20, 2009 until July 3, 2010. Mr. Kvaal

served as Senior Advisor to the Under Secretary from June 1, 2010 and assumed the role of

Deputy Under Secretary on July 4, 2010. There are no other individuals in OUS who are

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reasonably likely to have records responsive to this request that have not been captured in this

search. . Id. 7.

Mr. Shireman and Mr. Kvaal maintained the types of communications sought by Ms.

Weismann in their individual Departmental email accounts. After his departure from OUS, Mr.

Shireman's emails were captured on a Departmental server. OUS conducted an electronic search

of Mr. Shireman's and Mr. Kvaal's emails for emails that referenced the following terms in the

subject or text of the email: "for-profit education," "proprietary," "gainful employment" or

"program integrity." OUS also conducted an electronic search of Mr. Shireman's and Mr. Kvaal's

emails for emails to or from Steve Eisman, FrontPoint Partners, LLC, Morgan Stanley

Investment Management, Inc., Pauline Abernathy, The Institute for College Access and Success,

Barmak Nassirian, the American Association of Collegiate Registrars and Admissions Officers,

Manuel Asenio, The Alliance for Economic Stability, or Johnette McConnell Early. OUS then

reviewed the results of the electronic search to identify records responsive to the FOIA request.

To the best of affiant Arsenaults knowledge, OUS does not have any hard-copy correspondence

records responsive to the request and there is no place where any hard copy documents

responsive to the request reasonably might be found; therefore, those records were not searched.

Pursuant to Ms. Weismann's October 25, 2010 clarification, internal emails to or from Robert

Shireman and James Kvaal that did not mention the external entities listed above were not

identified as responsive. Id. 8.

On November 19, 2010, OUS provided the Department's FOIA Service Center with

506 pages responsive to this FOIA request from the account of Mr. Shireman. These records

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were released to CREW on December 6, 2010. All of these pages were released in full without

redactions. Id. 9.

On January 6, 2011, OUS confirmed that a search of all locations described above using

the correct spelling of the name "Asensio" returned no additional responsive records. Id. 10.

On February 16, 2011, OUS provided the Department's FOIA Service Center with 188

pages responsive to this FOIA request from the account of Mr. Kvaal. These records have not

yet been released to CREW. Of the 188 pages, 178 are being released in full with this

declaration. See attach Kavaal documents. Ten pages are being withheld in full pursuant to the

deliberative process privilege, Exemption 5.

Office of Planning, Evaluation and Policy Development (OPEPD)

OPEPD oversees planning, evaluation, policy development, and budget activities in the

Department. OPEPD coordinates these activities with the Departments principal offices and

outside organizations such as Congress, the Office of Management and Budget, and state

education agencies. OPEPD was involved in for-profit education/gainful employment regulation

process in these capacities. (Z. Smith Dec 6).

OPEPD identified Zakiya Smith as an individual who would likely have records

responsive to this request. Ms. Smith is the primary individual within OPEPD whose

responsibilities include higher education policy issues. There are no other individuals in OPEPD

who are reasonably likely to have records responsive to this request. Id. 7. Ms. Smith

maintains the types of communications sought by Ms. Weismann in her individual Departmental

email accounts. Ms. Smith conducted an electronic search of her email account for responsive

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records that contained the following search terms: "profit," "Abernathy," "Nassirian," "Barmak,"

"frontpoint," "Stanley," "AACRAO," "johnette," "TICAS," "eisman," "asenio," "alliance for

economic stability." Ms. Smith then reviewed the results of the electronic search to identify

records responsive to the FOIA request. Based on her knowledge of and familiarity with her own

records, Ms. Smith is aware that she did not receive any hard-copy correspondence that would be

responsive to this request; therefore she did not conduct a separate search for such documents.

Pursuant to Ms. Weismann's October 25, 2010 clarification, internal emails to or from Robert

Shireman that did not mention the external entities listed above were not identified as responsive.

Id. 8.

On November 22, 2010, OPEPD provided the Department's FOIA Service Center with

42 pages responsive to this FOIA request. These records were released to CREW on November

23, 2010. All of these pages were released in full without redactions.Id. 9.

On January 4, 2011, OPEPD confirmed that a search of all locations described above


10.

Application of Exemptions

EXEMPTION (b)(5): DELIBERATIVE PROCESS PRIVILEGE

Exemption (b)(5) protects "inter-agency or intra-agency memorandums or letters which

would not be available by law to a party other than an agency in litigation with the agency." 5

U.S.C. 552(b)(5). Courts have construed this language to exempt documents that would not

ordinarily be available to an agency's opponent in a civil discovery context and to incorporate all

evidentiary privileges that would be available in that context. See United States v. Weber

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Aircraft Corp., 465 U.S. 792, 799 (1984); FTC v. Grolier, Inc., 462 U.S. 19, 26 (1983); Martin v.

Office of Special Counsel, 819 F.2d 1181 (D.C. Cir. 1987). Among the privileges incorporated

by FOIA Exemption 5 are the deliberative process privilege and the attorney work product

privilege. Gold Anti-Trust Action Committee, Inc. v. Board of Governors of Federal Reserve

System, 2011 WL 332541, 6 (D.D.C. 2011).

The purpose of the deliberative process privilege is to protect the "quality of agency

decisions." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975). Flowing from the policy

considerations is the privileges protection of the decision making processes of government

agencies. Sears, 421 U.S. at 150. The privilege protects not merely documents, but also the

integrity of the deliberative process itself where the exposure of that process would result in

harm. Dudman Communications Corp. v. Dept. of the Air Force, 815 F.2d 1565, 1568 (D.C. Cir.

1987)(Congress enacted Exemption 5 to protect the executives deliberative processes not to

protect specific materials.). Greenberg v. Dept. of Treasury, 10 F. Supp.2d 3, 16, n.19 (D.D.C.

1998); Marzen v. HHS, 825 F.2d 1148, 1155 (7th Cir. 1987) ("[E]xemption protects not only the

opinions, comments and recommendations in the draft, but also the process itself."); Pies v. IRS,

668 F.2d 1350, 1353-54 (D.C. Cir. 1981). As the Court inCoastal States held, the privilege

protects "recommendations, draft documents, proposals, suggestions, and other subjective

documents which reflect the personal opinions of the writer rather than the policy of the agency."

Coastal StatesGas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C.Cir. 1980). Indeed, the

mere status of an agency decision within an agency decision making process may be protected if

the release of that information would have the effect of prematurely disclosing the

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recommended outcome of the consultative process...as well as the source of any decision. Wolfe

v. HHS, 839 F.2d 768, 775 (D.C. Cir. 1988) (en banc).

Courts have recognized that agencies are entitled to deference in regard to the way they

characterize their deliberative process. See generally Allen v. Wright, 468 U.S. 737 (1984);

Women's Equity Action League v. Bell, 743 F.2d 42, 43 (D.C.Cir.1984).

The attorney-client privilege encompasses confidential communications between an

attorney and his client relating to a legal matter for which the client has sought professional

advice. . . . .Its purpose is to assure that a client's confidences to his or her attorney will be

protected, and therefore encourage clients to be as open and honest as possible with attorneys.

Judicial Watch, Inc. v. U.S. Dept. of Homeland Sec., 2010 WL 3564260, 4 (D.D.C. 2010) ).

OPE redacted the following information pursuant to FOIA exemption (b)(5):

a. OPE redacted the body of two emails dated April 15, 2010 and

handwritten notes appearing across the top of one of the emails under the deliberative process

and attorney-client privileges. The redacted information discussed and memorialized OPE's

intention to seek advice from legal counsel, and summarized the substance of earlier

conversations with legal counsel. The document was reviewed for segregability and all

non-exempt portions were released. Smith Dec.. 11.

b. OPE redacted the body of an email dated August 19, 2010. The redacted

information contained internal discussions of potential hypothetical data scenarios and potential

Departmental responses thereto. The information was therefore both predecisional (antecedent

to the adoption of an agency policy) and deliberative. Further, public release of such information

might confuse and mislead the public, as it was based on potential and hypothetical data

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scenarios that had not occurred. The document was reviewed for segregability and all

non-exempt portions were released. Id 11.

In addition, OPE erroneously indicated that the following information was redacted

pursuant to FOIA exemption (b)(5): two blocks of text in an email chain dated Monday, July 26,

2010. The redacted information consists of internal communications about the location of

particular data on the Department's website. It was therefore not responsive to the FOIA request

and should have been redacted as "nonresponsive." Id. 12.

OUS withheld in full ten pages out of 188 pages of documents pursuant to the

deliberative process privilege. Arsenault Dec. 11. The ten withheld pages are comprised of

e-mail chains which reflect the agency employees' discussions among themselves concerning the

plan for release of the proposed rule making for gainful employment. The e-mails and attached

draft rollout plans reflect internal strategies and recommendations for making the rollout, and

reflect internal deliberations and political and press considerations such as who should be

considered individuals of importance to contact in making the rollout . Also included in the

pages are a draft press release and draft talking points. Id. Affiant Arsenault reviewed the ten

pages, and found that they are subject to exemption 5 in full. Id.

All Reasonably Segregable Material Has Been Released to Plaintiff.

The FOIA requires that if a record contains information that is exempt from disclosure,

any "reasonably segregable" information must be disclosed after deletion of the exempt

information unless the non-exempt portions are "inextricably intertwined with exempt portions."

5 U.S.C. 552(b); Mead Data Cent., Inc. v. United States Dept. of the Air Force , 566 F.2d 242,

260 (D.C. Cir. 1977). The Court of Appeals for the District of Columbia Circuit has held that a

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District Court considering a FOIA action has "an affirmative duty to consider the segregability

issue sua sponte." Trans-Pacific Policing Agreement v. United States Customs Serv., 177 F.3d

1022, 1028 (D.C. Cir. 1999).

In order to demonstrate that all reasonably segregable material has been released, the

agency must provide a "detailed justification" rather than "conclusory statements." Mead Data,

566 F.2d at 261. The agency is not, however, required "to provide such a detailed justification"

that the exempt material would effectively be disclosed. Id. All that is required is that the

government show "with 'reasonable specificity'" why a document cannot be further segregated.

Armstrong v. Executive Office of the President, 97 F.3d 575, 578-79 (D.C. Cir. 1996). Moreover,

the agency is not required to "commit significant time and resources to the separation of

disjointed words, phrases, or even sentences which taken separately or together have minimal or

no information content." Mead Data, 566 F.2d at 261, n.55.

As is indicated above, all responsive documents were released to CREW in full with

the exception of portions of four pages from OPE and 10 pages from OUS.. Three of the OPE

pages bore redactions only of information subject to exemption 5, and one bore information

which was not responsive to the request. See Smith Dec. 11-12. Similarly the 10 OUS

documents only bore information subject to Exemption 5. Arsenault Dec. 11.

Thus, all reasonably segregable material has been released to plaintiff.

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CONCLUSION

For all the foregoing reasons, the Agencys Motion to Dismiss and for Summary

Judgment should be granted and Plaintiffs Complaint should be dismissed with prejudice.






By: /s/ Rhonda C. F

RHONDA C. FIELDS


Civil Division



202/514/6970

Fax: 202/514/8780

Of Counsel:Jill Siegelbaum

Attorney




I


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