CREW: Department of Education: Brief - Defendant's Motion For Summary Judgment: 06/02/11

Case 1:10-cv-01712-RMC Document 17 Filed 06/01/11 Page 1 of 30
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
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
202/514/6970
Fax: 202/514/8780
Of Counsel:
NIA FRIPP
Attorney
Division of Business and Administrative Law
Office of the General Counsel
U.S. Department of Education
2


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. II ¶ 9). 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 the American
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.
Id..
2 On October 25, 2010, CREW’s 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. ¶ 10.
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 Subsequently, the FSC identified four additional offices that were assigned the FOIA
request: the Office of the General Counsel (OGC), the Office of the Secretary (OS), the Office of
Federal Student Aid (FSA), and the Office of the Deputy Secretary (ODS). FSC assigned the
FOIA Request to the listed Department offices because of their perceived responsibility for, or
involvement otherwise with, Department legal, regulatory and policy matters associated with the
gainful employment rule relative to for-profit education and for-profit institutions or companies
that are the subjects of the FOIA Request. The Department identified no other offices likely to
2
possess records responsive to the FOIA Request. (Cook Dec II ¶15)
5 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).
6 On December 3, 2010, Defendant provided CREW with what defendant then believed
would be 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. (Arsenault Dec. ¶ 9).
7 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).
8 Following a further search, an April 15, 2011 Interim Response produced 80 pages of
records responsive to the FOIA Request. (Cook Dec. II ¶ 28).
9 An April 22, 2011 Interim Response produced 252 pages of records responsive to the
FOIA Request. Id. ¶ 29.
10 An April 28, 2011 Response produced 18 pages of records responsive to the FOIA
Request. Id. ¶ 30.
11 A May 10, 2011 Response produced 97 pages of records responsive to the FOIA Request.
The majority of the documents produced were reprocessed versions of documents previously
3
submitted to Plaintiff. Id. ¶ 31.
12 Attached to this Motion for Summary Judgment are 106 pages of records. Ex. K These
are reprocessed versions of documents previously submitted to plaintiff. (Cook Dec. II ¶ 32).



RHONDA C. FIELDS
Civil Division
202/514/6970
Fax: 202/514/8780
Of Counsel:
NIA FRIPP
Attorney
4


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;

(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 the American
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.
(Cook Dec. II ¶ 9).
On October 25, 2010, CREW’s 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. ¶ 10,
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).
2
On December 3, 2010, Defendant provided CREW with what Defendant then believed
would be 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).
In 2011, following the withdrawal of Defendant’s initial motion for summary judgment
additional searches were conducted. An April 15, 2011 Interim Response produced 80 pages of
records responsive to the FOIA Request. (Cook Dec. II ¶ 28).
An April 22, 2011 Interim Response produced 252 pages of records responsive to the
FOIA Request. Id. ¶ 29. An April 28, 2011 Response produced 18 pages of records responsive
to the FOIA Request. Id. ¶ 30. A May 10, 2011 Response produced 97 pages of records
responsive to the FOIA Request. The majority of the documents produced were reprocessed
versions of documents previously submitted to Plaintiff. Id. ¶ 31.
Attached to this Motion for Summary Judgment are 106 pages of records. These are
reprocessed versions of documents previously submitted to plaintiff. Id. ¶ 32.
3
ARGUMENT
I. 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 party’s 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. In Celotex Corp. v. Catrett,
the Supreme Court held that, in responding to a proper motion for summary judgment, the party
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). In Anderson 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).
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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
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
5
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), aff’d in part, rev’d 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
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
6
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
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 Searches
FSC initially assigned the FOIA Request for processing to five Department Offices
based on its understanding of the subject matter of the request: the Office of Legislative and
Congressional Affairs (OLCA), the Office of Communications and Outreach (OCO), the Office
of Postsecondary Education (OPE), the Office of the Undersecretary (OUS), and the Office of
7
Planning, Evaluation and Policy (OPEPD). Consistent with established practices, FSC made this
assignment based on its understanding of the subject matter involved and further identification of
offices by the recipients. (Cook Dec II ¶ 14).
Prior to February 2011, the Department only allowed current agency personnel to
search their own e-mail accounts. Bashford Dec. ¶ 10. Therefore, pursuant to the policies then
in effect, when the initial e-mail searches were conducted in 2010, the e-mail searches were done
only on an account by account basis of the accounts of individual agency personnel who had been
identified as having been involved in the gainful employment regulation process. See Landis
Dec ¶ 3, 6-11 (OCO); Meyer Dec. 6-12 (OLCA); Smith Dec. ¶6-13 (OPE); Arsenault Dec ¶6-10
(OUS); Z.Smith Dec. ¶ 6-10 (OPEPD).
Subsequently, the FSC identified four additional offices that were assigned the FOIA
request: the Office of the General Counsel (OGC), the Office of the Secretary (OS), the Office of
Federal Student Aid (FSA), and the Office of the Deputy Secretary (ODS). FSC assigned the
FOIA Request to the listed Department offices because of their perceived responsibility for, or
involvement otherwise with, Department legal, regulatory and policy matters associated with the
gainful employment rule relative to for-profit education and for-profit institutions or companies
that are the subjects of the FOIA Request. The Department identified no other offices likely to
possess records responsive to the FOIA Request. (Cook Dec. II ¶ 15).
The Department offices listed above identified those on their staffs deemed likely to
maintain records responsive the FOIA Request because of their responsibility for or involvement
with its subject matter (i.e., Department communications with Steven Eisman, FrontPoint
Partners, LLC, Morgan Stanley Investment Management, Inc., Pauline Abernathy, the Institute
8
for College Access and Success, Barmak Nassirian, the American Association of Collegiate
Registrars and Admissions Officers, Manuel Asensio, the Alliance for Economic Stability,
Johnette McConnell Early, and Bob Shireman regarding for-profit education). (Cook Dec II ¶
16).
Beginning in February 2011, select Department employees with “Folder Admin”
permission, as is further described below, were authorized to conduct agency wide e-mail
searches. (Bashford Dec. ¶ 10). On or about March 29, 2011, the Department completed a
comprehensive electronic search of all Department e-mail communications sent or received on or
after April 20, 2009 to the date of Plaintiff's request. The results were provided to the principal
offices identified above for review and proposed redactions. The Department produced all
responsive documents subject to FOIA located as a result of the referenced searches that were
determined to be responsive to the FOIA Request, with redactions as noted below. (Cook Dec. II
¶ 18).
The electronic search of e-mail was conducted by Terry Bashford, the Information
Technology (IT) Specialist assigned to the Office of the General Counsel (OGC) in the U.S.
Department of Education. (See Bashford Dec. ¶ 1 & 11). The e-mail system used by the
Department is on an application called EmailXtender, which is a system consisting of software,
storage, telephony, hardware, services and other electronic data management capabilities for
management of archived e-mail. Since April 20, 2009, all e-mail that comes into, or is sent from,
the Department’s email system is captured in EmailXtender. Id. ¶ 4.
Mr. Bashford is one of the six (6) Department employees with "Folder Admin"
permissions which gives him the ability to conduct searches of the entire database across all
9
users. These searches will search for data anywhere in an e-mail message including the text of
the e-mail as well as the "To," "CC," "BCC," and "From" fields. The search results display the
e-mail message including "To," "CC," and "From" fields, but due to the manner in which
EmailXtender is programmed, the BCC field will not display or print for any retrieved e-mail.
Id. ¶ 7.
On or about March 28, 2011, Mr. Bashford conducted a search of the Department's
e-mail via the EmailXterner server utilizing the following search terminology: "Eisman OR
FrontPoint OR Stanley // Investment OR Pauline // Abernathy OR 'Institute // College // Access //
Success OR Nassirian OR American // Association /1/ Collegiate // Registrars /1/ Admissions //
Officers OR Asensio OR Alliance /1/ Economic // Stability OR Johnette OR Profit OR
Shireman." This search generated over 200,000 responses, most of which on their face were
unresponsive. For example, this search produced what appeared to be Bob Shireman's entire
e-mail mailbox, and "profit" was too broad a term. Id. ¶ 13
On March 31, 2011, Mr. Bashford conducted a second search of the Department's
emails via the EmailXtender server utilizing the following search terminology: "Eisman OR
FrontPoint OR Stanley // Investment OR Pauline // Abernathy OR 'Institute // College // Access //
Success OR Nassirian OR American // Association /1/ Collegiate // Registrars /1/ Admissions //
Officers OR Asensio OR Alliance /1/ Economic // Stability OR Johnette." This second search
continued to retrieve the e-mails from Mr. Shireman's account and accounts of others that
contained any of the search terms used, but would not retrieve Mr. Shireman's entire mailbox
nor messages with just the term "profit". This search generated over 13,781 responses, of which
10
1,710 were immediately determined to be nonresponsive as they were distribution list emails, e.g.
newsletters, ED and Microsoft Exchange automated administrative emails. Id. ¶ 14.
The March 31, 2011 search still contained a plethora of nonresponsive documents, but
Mr. Bashford was unable to narrow search terms sufficiently to eliminate the nonresponsive
documents. The documents were submitted to the principal offices for further manual
processing. Id. ¶ 15.
Before February 2011, the Department conducted a search of its electronic system for
tracking incoming and outgoing official correspondence to or from the Department and/or the
Secretary using these search terms: "Eisman"; "Abernathy"; "Nassirian"; "Asensio"; "Early." The
Department conducted another search of this electronic system on or about May 31, 2011 using
the following search terms: "Eisman"; "Abernathy"; "Nassirian"; "Asensio"; "Early";
"FrontPoint"; "Morgan Stanley"; "Stanley Investment"; "Institute for College Access and
Success"; "American Association of Collegiate Registrars and Admissions Officers"; and
"Alliance for Economic Stability." (Cook Dec II ¶ 19).
The Department produced all responsive documents subject to FOIA located as a result
of the above described electronic e-mail and correspondence tracking searches that were
determined to be responsive to the FOIA Request with redactions as noted below. Cook Dec II ¶
20.)
The Department employees whose responsive documents were found include: Jennifer
Woodward and Georgia Yuan (OGC); David Bergeron, John Kolotos, Fred Sellers, Kathleen
Smith, and Dan Madzelan (OPE); Martha Kanter, Bob Shireman, James Kvaal, Leigh Arsenault
(OUS); Ann Manheimer (FSA); Kristen Adams, Gabriella Gomez, and Cynthia Hammond
11
(OLCA); Eric Waldo and Joanne Weiss (OS); Peter Cunningham, John McGrath, David Hoff,
Massie Ritsch, Stacey Jordan, Alberto Retana, Cynthia Dorfman, Tim Tuten and Justin Hamilton
(OCO); Tony Miller, Alexandra Sova, Ann Whalen, Wendy Tada, and Jason Snyder (ODS); and
Zakiya Smith (OPEPD and OUS). (Cook Dec II ¶ 21).
All of the personal paper, hard copy files of the individuals identified above were
searched for any of the communications specified in the FOIA request. To the extent that
responsive documents were located in those files, they were duplicative of what was located in
the electronic e-mail and official correspondence tracking system searches described above at
¶18 and 19. The individuals in OGC, FSA, OLCA, OS, OCO, ODS also searched their
electronic files, e.g., those located in the hard drives of their computers, and located no
responsive documents subject to the FOIA. The individuals in OPE, OUS and Zakiya Smith did
not reasonably expect to find responsive documents in any electronic files on their computers
other than what was located in the electronic e-mail search described above because e-mail is
their only method of written communication with external people and entities and internal
Department staff outside of the official Department correspondence which was electronically
searched. Except for Mr. Shireman who is no longer with the Department and has left
government service, all of the individuals identified above stated that any communications with
the external entities or regarding the external entities identified in the request were apparent on
responsive e-mail communications, i.e., they did not communicate using the bcc function on their
e-mail accounts. (Cook Dec II ¶ 22).
The Department produced all responsive documents subject to FOIA located as a result
of the referenced searches that were determined to be responsive to the FOIA Request, with
12
redactions as noted below. (Cook Dec II ¶ 23). Based on the above, the Defendant 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. The renewed search effort in 2011,
reflects the good faith of the Defendant’s search efforts. Landmark Legal Foundation v. E.P.A. ,
272 F.Supp.2d 59, 63 (D.D.C. 2003) (“Landmark also argues that some documents were released
to it after further searching was conducted, and that this indicates the first search was not
reasonable. This is contrary to precedent, which teaches that continuing discovery and release of
documents does not prove that the original search was inadequate, but rather shows good faith on
the part of the agency that it continues to search for responsive documents. Meeropol v. Meese,
790 F.2d 942, 952-53 (D.C.Cir.1986)”).
DOCUMENT PROCESSING REVIEW
The records located in the searches described above and determined to be responsive
to the FOIA Request in whole or in part were reviewed for the purpose of identifying for
redaction any material exempt from disclosure pursuant to 5 U.S.C. § 552(b). On completion of
their reviews, the offices identified above uploaded records they believed to possibly be
responsive records into FOIAXpress, the electronic system the Department uses to process FOIA
requests, with recommended redactions noted, for final review and transmission to the requester
by the Department’s FOIA Service Center (FSC). (Cook Dec II ¶ 33).
The custodial offices initially recommended that 159 of the 1,781 pages produced to the
requester in response to the FOIA Request be redacted and withheld in whole or in part. Id. ¶
34.
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Prior to production to the requester, FSC staff reviewed the redactions made by the
custodial offices for compliance with the FOIA. Specifically, FSC reviewed the records
recommended for redaction in whole or in part to ensure both that FOIA Exemptions were
applied appropriately and that all non-exempt portions of the records in question were segregated
and produced to the requester. Subsequently, the FSC re-reviewed the redacted pages in
consultation with the identified offices and determined that 21 of these pages were erroneously
identified as exempt under FOIA Exemption 5. See Exhibit J, Docs. Nos. 1, 3, 15, 16, 22A, 23,
30, 31, 40, 70-77. Thirty-one pages were erroneously identified as exempt under FOIA
Exemption 6. See Exhibit J, Docs. Nos. 21-22, 24, 26, 28, 30, 42, 46, 69, 71, 72. Three pages
were erroneously identified as exempt under both FOIA Exemptions 5 and 6. See Exhibit J,
Docs. Nos. 17, 39, 49. All of the information withheld as exempt on these pages was appropriate
for release and either has been released in a previous submission to Plaintiff or is attached to the
Department's Motion for Summary Judgment. Id. ¶ 35.
FSC’s subsequent review also identified ten documents that included pages erroneously
identified as exempt under either FOIA Exemptions 5 or 6 that should have been identified as
nonresponsive. See Exhibit J, Doc. Nos. 6, 7, 12-14, 19, 22A, 47, 54, 56. The information
withheld on the pages is not responsive to the FOIA Request because it does not reflect a
communication that is either: (a) to, from, or between a Department official and the external
entities identified on the FOIA Request or former Deputy Under Secretary Robert Shireman
regarding for-profit education; or (b) between Department officials regarding communication to,
from, or between a Department official and the external entities identified on the FOIA Request
14
or former Deputy Under Secretary Robert Shireman regarding for-profit education. Rather, they
include internal communications regarding various unrelated topics and were released in error.
Id. ¶ 36.
Thirty-four pages were identified as exempt under FOIA Exemption 5, but were further
segregated by FSC. See Exhibit J, Docs. Nos. 2, 4, 5, 8-11, 25, 37, 44, 45, 50, 57-59, 61, 62, 64,
65. Id. ¶ 37.
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
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 privilege’s protection of the “decision making processes of government
agencies.” Sears, 421 U.S. at 150. The privilege protects not merely documents, but also the
15
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 executive’s 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 in Coastal 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 States Gas 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
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) ).
16
As described in detail in the attached Vaughn Index, the information that remains
identified as exempt under FOIA Exemption 5 are inter-agency and intra-agency communications
reflecting pre-decisional and deliberative communications regarding the Department's proposed
rulemaking related to for-profit education , i.e., the Gainful Employment Notice of Proposed
Rule Making (NPRM), including data considered, analysis of the data considered, requests for
and substance of legal advice related to the rule-making process, and the development of internal
strategies regarding managing external communications throughout the regulatory process. See
Exhibit J, Docs. Nos. 2, 4, 5, 8-11, 18-20, 25, 27, 37, 44, 45, 50, 52, 53, 57, 64-65. The final
version of the Department's regulations proposed in this NPRM has not yet been released. The
Department has withheld this information to encourage open, frank discussions on matters of
policy between subordinates and superiors, to protect against premature disclosure of proposed
policies before they are actually adopted, and protect against public confusion that might result
from the disclosure of reasons and rationales that were not in fact ultimately the grounds for the
agency's policy. Release of the redacted information could have harmful effects by misleading
and confusing the public concerning the ongoing regulatory process and by creating a chilling
effect upon candid internal discussions among employees and their superiors in ongoing policy
discussions. (Cook Dec II ¶ 38).
FOIA EXEMPTION 6: INVASION OF PERSONAL PRIVACY
Exemption 6 of the FOIA protects "personnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5
U.S.C. § 552(b)(6). "The Supreme Court has interpreted the phrase 'similar files' to include all
information that applies to a particular individual." Lepelletier v. FDIC, 164 F.3d 37, 46 (D.C.
17
Cir. 1999), quoting Dept. of State v. Washington Post Co., 456 U.S. 595, 602 (1982). The Court
has also emphasized that "both the common law and the literal understanding of privacy
encompass the individual's control of information concerning his or her person." U.S. Dept. of
Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 763 (1989).
In order to determine whether there would be a "clearly unwarranted invasion of personal
privacy," the Court must balance the interests of protecting "an individual's private affairs from
unnecessary public scrutiny," and "the public's right to governmental information." Lepelletier,
164 F.3d at 46 (interior quotation marks omitted), citing United States Dept. of Defense v. FLRA,
964 F.2d 26, 29 (D.C. Cir. 1992), quoting Dept. of Air Force v. Rose, 425 U.S. 352, 372 (1976).
In determining how to balance the private and public interests involved, the Supreme Court has
sharply limited the notion of "public interest" under the FOIA: "[T]he only relevant public
interest in the FOIA balancing analysis [is] the extent to which disclosure of the information
sought would 'she[d] light on an agency's performance of its statutory duties' or otherwise let
citizens know 'what their government is up to.'" Lepelletier, 164 F.3d at 46 (editing by the court,
emphasis supplied, interior quotation marks omitted), quoting United States Dept. of Defense v.
FLRA, 510 U.S. 487, 497 (1994). See also Reporters Committee, 489 U.S. at 773. Information
that does not directly reveal the operation or activities of the federal government "falls outside the
ambit of the public interest that the FOIA was enacted to serve." Id. at 775. Further, "something,
even a modest privacy interest, outweighs nothing every time." National Ass'n of Retired Fed.
Employees v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989).
As described in detail in the attached Vaughn Index, the information that remains
identified as exempt under FOIA Exemption 6 is personally identifiable information, i.e., e-mail
18
addresses, telephone numbers, and a passcode. See Exhibit J, Docs. Nos. 48, 51, 58, 59, 62, 66,
68. (Cook Dec. II ¶ 39).
This information includes personal e-mail addresses and a telephone phone number of
private individuals, whose information was compiled by Morgan Stanley and not submitted to the
Department during the public comment period and whose information is tied to information
regarding which higher education institution they attended; how they financed their studies; and/or
their experiences at certain higher education institutions. After balancing the privacy and public
interests, the Department determined that disclosure of this information would constitute a clearly
unwarranted intrusion in these persons' privacy that is not outweighed by any public interest. See
Exhibit J, Doc. No. 51. Id. ¶ 40.
The information identified as exempt under FOIA Exemption 6 also includes e-mail
addresses of staff of the U.S. House of Representatives. The Department understands that these
e-mail addresses are not public information and are integral to the individuals' job functions such
that disclosure of this information could subject these private individuals to unwarranted
intrusions that could compromise the ability to perform their duties and responsibilities; it would
therefore constitute a clearly unwarranted intrusion in these persons' privacy that is not
outweighed by any public interest. See Exhibit J, Docs. Nos. 48, 66, 68. Id. ¶ 41.
Likewise, the Department identified as exempt passcodes for tele-conference lines utilized
by the Department's Under Secretary Martha Kanter. Her use of these lines is integral to her job
functions, such that disclosure of this information could permit unauthorized individuals to access
private meetings that Ms. Kanter conducts and are critical to the performance of her duties and
responsibilities. Id. ¶ 42.
19
The release of the above described information would not shed any light on the
Department's performance of its statutory duties and does not reveal the operations or activities of
the Department. Therefore, FSC found no public interest in the disclosure of any of such
information. As a result, the information was withheld because its release would constitute a
clearly unwarranted intrusion in these persons' privacy that is not outweighed by any public
interest. See Exhibit J, Docs. No. 58, 59, 62. Id. ¶ 43.
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
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
20
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 demonstrated by the accompanying declarations, the FOIA Exemptions were applied
appropriately and non-exempt portions of records withheld in part were properly segregated and
produced to the requester. The documents were reviewed line by line to identify reasonably
segregable portions of the records containing exempt information. The Exemption 6 redactions
were limited to the above described e-mail addresses, telephone numbers, and a passcode. The
Department has made discretionary releases of some information which arguably is protected by
Exemption 5. However, Exemption 5 was claimed for those predecisional deliberative
communications, the release of which would likely cause the harms described in the Exemption 5
section of this memorandum and in the Vaughn Index. This information was further segregated
by releasing the information that did not disclose the predecisional deliberative communications.
A Privilege Log, or "Vaughn" Index, that describes the records responsive to the FOIA Request
denied in whole or in part pursuant to Exemptions 5 and 6, and information redacted as not
responsive to the request is attached as Exhibit K hereto. In the Vaughn Index, the documents, as
finally segregated by the Department, are identified by the Bates numbers which are in bold.
(Cook Dec. II ¶ 44).
Thus, all reasonably segregable material has been released to plaintiff.
FORM OF PRODUCTION
CREW previously contended that Defendant’s initial production was deficient because e-
mails were provided in paper format rather than in electronic format including metadata which
would allow “bcc” information to be read.
21
FOIA provides that
In making any record available to a person under this paragraph, an agency shall
provide the record in any form or format requested by the person if the record
is readily reproducible by the agency in that form or format. Each agency shall
make reasonable efforts to maintain its records in forms or formats that are
reproducible for purposes of this section.
5 U.S.C.A. § 552 (a)(3)(B). In this case, CREW’s request did not ask that the information be
provided in an electronic format, and the records are not readily reproducible in electronic format.
CREW’s July 23, 2010 FOIA letter failed to make any request that the information sought
be provided in any particular form or format. The request stated
Citizens for Responsibility and Ethics in Washington (CREW) makes this request
for records, regardless of format, medium, or physical characteristics, and
including electronic records and information, pursuant to the Freedom of
Information Act, (FOIA). 5 U.S.C. § 552, and U.S. Department of Education
(Education) FOIA Regulations, 34 C.F.R. §§ 5.1, et seq. Specifically, CREW
seeks 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
***
Please search for records regardless of format, medium, or physical characteristics.
We seek records of any kind, including electronic records, audiotapes, videotapes,
photographs, and back-up tapes. Our request includes any telephone messages,
voice mail messages, daily agenda and calendars, information about scheduled
meetings and/or discussions, whether in-person or over the telephone, agendas for
those meetings and/or discussions, participants included in those meetings and/or
discussions, minutes of any such meetings and/or discussions, e-mail or facsimiles
sent as a result of those meetings and or discussions, and transcripts and notes of
any such meetings and or discussions to the extent they relate to the
aforementioned requested information.
Ex A, CREW July 23, 2010 ltr at 1-2.
Nowhere in the request does CREW specify the form or format in which any of the
information should be provided. Therefore, there was no requirement under the FOIA that
Defendant provide any information in an electronic format or that the electronic format include
22
metadata. Thus, this request is materially different from the request in Sample v. Bureau of
Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006), in which the requester specified that the records
were to be in an electronic format. See also National Day Laborer Organizing Network v. U.S.
Immigration and Customs Enforcement Agency, 2011 WL 381625, 5(S.D.N.Y. 2011) (“Because
no metadata was specifically requested in Plaintiffs' July 23 e-mail, and because this is an issue of
first impression, I will not require Defendants to re-produce all of the records with metadata.”)
Additionally, the requested information is not readily reproducible by the agency in
electronic format. The District of Columbia Circuit has defined the term as follows:
“readily reproducible” simply refers to an agency's technical capability to create the

records in a particular format. No case construing the language focuses on the
characteristics of the requester. See, e.g., TPS, Inc. v. U.S. Dep't of Defense, 330
F.3d 1191, 1195 (9th Cir.2003) (interpreting “readily reproducible” as referring to
technical capability); see also, e.g., Carlson v. U.S. Postal Serv., 2005 WL 756573,
at *7 (N.D.Cal.2005) (holding that “readily reproducible” in a requested format
means “readily accessible” by the agency in that format); Landmark Legal Found.
v. EPA, 272 F.Supp.2d 59, 63 (D.D.C.2003) (construing “readily reproducible” as
the ability to duplicate).
Sample, 466 F.3d at 1088. Further, the statute requires that the Court accord “substantial weight
to an affidavit of an agency concerning the agency's determination as to technical feasibility ... and
reproducibility.” Id. (citing 5 U.S.C. § 552(a)(4)(B)). Here, as attested to by the affidavit of IT
Specialist Bashford, the Defendant does not have the technology to release these e-mails in
electronic format; doing so would require the creation of a "load file." "Load files" include
metadata and are used to import images and/or coding into a database where they can be searched,
reviewed and/or otherwise prepared by the recipient. A commonly-used software application that
can manage a load file is Concordance. The Department, however, does not own Concordance or
any other software that can import a load file. (Bashford Dec ¶ 16). Therefore, the agency does
23
not have the necessary technical capability, and the e-mails are not readily reproducible in
electronic format.
CONCLUSION
For all the foregoing reasons, the Agency's Motion to Dismiss and for Summary Judgment
should be granted and Plaintiff's Complaint should be dismissed with prejudice.



RHONDA C. FIELDS
Civil Division
202/514/6970
Fax: 202/514/8780
Of Counsel:
NIA FRIPP
Attorney
24

CREW: Department of Education: Brief - Defendant's Motion For Summary Judgment: 06/02/11

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Case 1:10-cv-01712-RMC Document 17 Filed 06/01/11 Page 1 of 30

UNITED STATES DISTRICT COURT

CITIZENS FOR RESPONSIBILITY AND :

UNITED STATES DEPARTMENT :

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

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

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

RUDOLPH CONTRERAS, D.C. Bar #434122

By: /s/ Rhonda C. Fields

UNITED STATES DISTRICT COURT

CITIZENS FOR RESPONSIBILITY AND :

UNITED STATES DEPARTMENT :

STATEMENT OF MATERIAL FACTS

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

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

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

(4) Deputy Undersecretary of Education Robert Shireman;

(5) Ms. Pauline Abernathy;

(7) Mr. Barmak Nassirian;

Association of Collegiate Registrars and Admissions Officers;

(9) Mr. Manuel P. Asenio;

(11) Ms. Johnette McConnell Early.

[her] FOIA request." Id. ¶ 10.

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

possess records responsive to the FOIA Request. (Cook Dec II ¶15)

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

pages in full. (Arsenault Dec. ¶ 9).

2010. (Cook Dec. ¶ 10).

records responsive to the FOIA Request. (Cook Dec. II ¶ 28).

FOIA Request. Id. ¶ 29.

Request. Id. ¶ 30.

submitted to Plaintiff. Id. ¶ 31.

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

RUDOLPH CONTRERAS, D.C. Bar #434122

By: /s/ Rhonda C. Fields

UNITED STATES DISTRICT COURT

CITIZENS FOR RESPONSIBILITY AND :

UNITED STATES DEPARTMENT :

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

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

Defendant's motion to dismiss and for summary judgment.

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

following eleven named entities and/or individuals:

(1) Mr. Steven Eisman;

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

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

(4) Deputy Undersecretary of Education Robert Shireman;

(5) Ms. Pauline Abernathy;

(7) Mr. Barmak Nassirian;

(9) Mr. Manuel P. Asenio;

(11) Ms. Johnette McConnell Early.

(Cook Dec. II ¶ 9).

[her] FOIA request." Id. ¶ 10,

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

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

pages in full. (Long Dec. ¶11).

2010. (Cook Dec. ¶ 10).

records responsive to the FOIA Request. (Cook Dec. II ¶ 28).

versions of documents previously submitted to Plaintiff. Id. ¶ 31.

reprocessed versions of documents previously submitted to plaintiff. Id. ¶ 32.