Professional Documents
Culture Documents
Plaintiff,
Defendant.
in this case and executed on February 15, 2011 (February 15, 2011 Declaration).
summary judgment.
review of documents kept in the ordinary course of business, and my review of relevant
Freedom of Information Act (FOIA) Service Center (FSC) of the U.S Department of
5. In this capacity, I am responsible for performing tasks for which FSC is responsible in
assigned to serve as a Public Liaison with respect to the FOIA request at issue in this
6. FSC is responsible for ensuring Department compliance with the FOIA. In particular,
FSC: (a) operates the Department’s FOIA case management system using the FOIA
Express electronic recordkeeping program; (b) advises the public and Department
offices and employees regarding FOIA requests and all aspects of the Department’s
FOIA program; (c) ensures the proper handling of all FOIA and Privacy Act requests
received; (d) oversees Department compliance with FOIA management policies and
operating procedures; (e) provides guidance and instruction to Department staff for the
appropriate receipt, handling, and recording of FOIA and Privacy Act requests; (f)
develops and provides print and web-based training to Department employees and
including mandated reports on the status of the Department’s FOIA program; (h)
databases that support the efficient handling of FOIA requests; and (i) coordinates the
7. FSC is also responsible for centralized Department FOIA functions, including intake,
waiver. FSC performs these functions except with respect to requests for records of the
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Department’s Office of Inspector General (OIG), for which such authority has been
delegated to OIG.
8. However, FSC assigns a given FOIA request to the custodial Office(s) within the
their responsibility for or involvement otherwise with its subject matter. These offices
are, in turn, responsible – with respect to records they maintain – for conducting and
ensuring the adequacy of searches for responsive records, releasing non-exempt records,
recommending the denial of access to records exempt from disclosure under one or
more of the FOIA exemptions, scanning responsive records and loading them into FOIA
documentation of costs to FSC for use in assessing processing fees where appropriate.
9. By letter dated July 23, 2010, and received by the Department on the same date, Ms.
(CREW), pursuant to FOIA, requested access to “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:
Ex. A.
10. On October 25, 2010, Ms. Weismann clarified the scope of her request by informing the
Department that “to the extent that [her] request seeks internal Departmental
11. Ms. Weismann’s July 23, 2010 request included a fee waiver. As discussed in ¶¶ 5 and
6 in my February 15, 2011 declaration, this request was initially denied and then granted
12. FSC assigned the administrative tracking number 10-01704-F to this FOIA Request. A
true and correct copy of CREW’s request, Department FOIA Request No. 10-01704-F
(the FOIA Request), is attached as Exhibit A. The October 25, 2010 clarification
13. Between August 18, 2010 and May 31, 2011, I oversaw the centralized review and
production tasks associated with processing the FOIA Request. Due to the large volume
staff time required for necessary review of such documents by ten different Department
offices prior to their production to Plaintiff (the offices identified at ¶¶ 14 and 15 below
and FSC), competing priorities for these individuals’ time (including deadlines for
processing other massive FOIA requests concerning this subject received from CREW
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and other requesters), technical difficulties associated with the search for and review of
electronic records, and delays within FSC occasioned by staff departures and filling
behind such departures, the Department was unable to complete processing the request
for all of the listed custodial offices until May 31, 2011. As detailed below, the
Department has now completed processing the request, and has produced to Plaintiff all
14. As discussed in ¶¶ 6 and 7 in my February 15, 2011 declaration, 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
Postsecondary Education (OPE), the Office of the Undersecretary (OUS), and the Office
FSC made this assignment based on its understanding of the subject matter involved and
15. 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
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
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16. The Department offices listed in ¶¶ 14 and 15 above identified those on their staffs
deemed likely to maintain records responsive the FOIA Request because of their
Investment Management, Inc., Pauline Abernathy, the Institute for College Access and
Admissions Officers, Manuel Asensio, the Alliance for Economic Stability, Johnette
17. Although in ¶¶ 8 through 10 in my February 15, 2011 Declaration, I stated that the
Department provided 1914 pages in response to CREW’s July 23, 2010 request between
November 23, 2010 and December 22, 2010, as stated in my April 28, 2011 letter to
CREW (Exhibit D), only 1,228 pages were actually provided to CREW between those
dates.
18. 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 in which these search terms appeared: “Eisman”;
“Profit” and “Shireman.” These results were provided to the principal offices identified
19. Before February 2011, the Department conducted a search of its electronic system for
tracking incoming and outgoing official correspondence to the Department and/or the
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about May 31, 2011 using these search terms: “Eisman”; “Abernathy”; “Nassirian”;
for College Access and Success”; “American Association of Collegiate Registrars and
20. The Department produced all responsive documents subject to FOIA located as a result
to the FOIA Request as described at ¶¶ 24-32 below, with redactions as noted at ¶¶ 33-
42 below.
21. The Department employees whose responsive documents have been provided 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 (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
22. All of the personal paper, hard-copy files of the individuals in the offices identified in ¶
21 above were searched for 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
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searches described above at ¶¶ 18 and 19 above. The individuals in OGC, FSA, OLCA,
OS, OCO, ODS identified in ¶ 21above 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 identified in ¶21
did not reasonably expect to find responsive documents in any electronic files on their
computers other than what was located in the electronic search described above as ¶ 18
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,
in which a search was also completed as discussed at ¶ 19 above. All of the individuals,
except for Mr. Shireman who is no longer with the Department and has left government
service, identified in ¶ 21 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
23. 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,
24. The Department produced to the requester 1,675 pages of records responsive to the
FOIA Request, by letters dated November 23, 2010, December 3, 2010, December 22,
2010, April 15, 2011, April 22, 2011, and May 10, 2011. True and correct copies of the
Specifically:
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25. A November 23, 2010 Interim Response produced 50 pages in their entirety. See
26. A December 3, 2010 Final Response produced to the requester 1,174 pages of records
27. A December 22, 2010 Response produced 4 pages of records responsive to the FOIA
28. An April 15, 2011 Interim Response produced 80 pages of records responsive to the
29. An April 22, 2011 Interim Response produced 252 pages of records responsive to the
30. An April 28, 2011 Final Response produced 18 pages of records responsive to the FOIA
31. A May 10, 2011 Response produced 97 pages of records responsive to the FOIA
32. Attached to the Department’s Motion for Summary Judgment are 106 pages of records
previously submitted to plaintiff. See Exhibit K. With this response, the Department
has produced a total 1,781 pages, including the reprocessed pages discussed in ¶¶ 31
33. The records located in the searches described at ¶¶ 14-16 and 18-22 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
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15 above uploaded responsive records subject to FOIA into FOIAXpress, the electronic
system the Department uses to process FOIA requests, with recommended redactions
34. 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.
35. 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
36. Our 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.
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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
official and the external entities identified on the FOIA Request 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.
37. Thirty-four pages were identified as exempt under FOIA Exemption 5, but were
appropriate for modified release. See Exhibit J, Docs. Nos. 2, 4, 5, 8-11, 25, 37, 44, 45,
38. As described in detail in the attached Vaughn Index, the information that remains
the Department’s proposed rulemaking related to for-profit education , i.e., the Gainful
analysis of the data considered, requests for and substance of legal advice related to the
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
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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.
39. Also, as described in detail in the attached Vaughn Index, the information that remains
i.e., e-mail addresses, telephone numbers, and a passcode. See Exhibit J, Docs. Nos. 48,
51, 58, 59, 62, 66, 68. A description of this information follows:
40. 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
intrusion in these persons’ privacy that is not outweighed by any public interest. See
41. The information identified as exempt under FOIA Exemption 6 also includes e-mail
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
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individuals to unwarranted intrusions that could compromise the ability to perform their
in these persons’ privacy that is not outweighed by any public interest. See Exhibit J,
42. 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. See Exhibit J, Docs. No.
43. 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
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
44. On the basis of the reviews described above, I believe both that FOIA Exemptions were
applied appropriately and that all reasonably segregable non-exempt portions of records
denied in part were segregated and produced to the requester. The documents were
containing exempt information. The Exemption 6 redactions were limited to the above
described e-mail addresses, telephone numbers, and a passcode. The Department has
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