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People for the American Way Foundation v. United States Dep't of Education

September 26, 2007

PEOPLE FOR THE AMERICAN WAY FOUNDATION, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF EDUCATION, DEFENDANT.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Plaintiff, People for the American Way Foundation (hereinafter, "PFAWF"), filed this suit pursuant to the Freedom of Information Act ("FOIA") against Defendant, the United States Department of Education (hereinafter, "DOED" or "the Department"), requesting that DOED disclose and release various categories of documents related to a federally-funded school voucher program in the District of Columbia. Presently before the Court are the Parties' cross-motions for summary judgment, which have been fully briefed. Based on the aforementioned filings and the relevant statutes and case law, the Court shall GRANT Plaintiff's [24] Motion for Summary Judgment and DENY Defendant's [29] Cross-Motion for Summary Judgment. Accordingly, by October 19, 2007, Defendant shall release any previously withheld (1) communications between DOED and the Washington Scholarship Fund ("WSF"); (2) communications between DOED and the District of Columbia Mayor's Office; and (3) communications between DOED and Westat and/or Georgetown University.Furthermore, by November 16, 2007, Defendant shall submit a new Vaughn index with respect to the presumably small subset of documents still withheld (those including internal DOED deliberations, either on their own or within communications between DOED and WSF) including the following information: (1) for documents including communications between DOED and WSF that have been segregated, the Vaughn index shall include the names and affiliations of all senders and recipients for each redacted portion of the document as well as an explanation as to why the redacted portions are both predecisional and deliberative; (2) for documents including communications between DOED and WSF that have been withheld in full because segregation would allegedly reveal DOED's deliberative process, the Vaughn index shall include the names and affiliations of all senders and recipients for the entire document, as well as an explanation of both why portions of the document are both predecisional and deliberative and why segregation is not feasible; and (3) for documents that are purely internal to DOED, the Vaughn index shall include the names and affiliations of all senders and recipients for each communication in addition to an explanation of why each document is predecisional and deliberative.

I. BACKGROUND

On January 23, 2004, Congress passed Public Law No. 108-99, the Consolidated Appropriations Act of 2004, Div. C, Title III, § 301 et seq. (the "D.C. School Choice Incentive Act of 2003), establishing the District of Columbia school voucher program. Pl.'s Stmt. of Mat. Facts ¶ 1; Def.'s Stmt. of Mat. Facts ¶ 1; Def.'s Cross Mot. for Summ. J., Ex. A (D.C. School Choice Incentive Act of 2003 (hereinafter, the "Act")). The Act creates a five-year program "to provide low-income parents residing in the District of Columbia . . . with expanded opportunities for enrolling their children in higher-performing schools in the District of Columbia." Act § 302(7). Pursuant to the Act, eligible D.C. children can receive annual vouchers of up to $7,500 toward tuition and expenses to attend a secular or religious private school. Act § 307(a)(3)(B).

The Act required DOED to enter into a Memorandum of Understanding with the District of Columbia Mayor's Office regarding "the design of, selection of eligible entities to receive grants under, and implementation of, a program assisted under this title." Act § 304(c). The DOED and the D.C. Mayor's Office entered into a Memorandum of Understanding ("MOU") on February 2, 2004. Def.'s Stmt. of Mat. Facts ¶ 4; Def.'s Cross Mot. for Summ. J., Ex. B (MOU). The MOU emphasizes the "joint" nature of the voucher program with respect to DOED and the D.C. Mayor's Office. See MOU at 1 ("The MOU is intended to ensure the efficient and effective implementation of the Program, in a manner that incorporates the perspectives of both the Department and the D.C. Government."); id. at 2 ("By holding meetings and through other forms of communication . . . the representatives of the Department and the D.C. Government will share ideas and work to reach agreement on issues related to the design and implementation of the Program."); id. at 4 (The Department and the D.C. Government will jointly oversee operation of the Program to ensure that it is being carried out in a manner that is consistent with statutory requirements, the approved application or applications, and sound management and educational principles.").

The Washington Scholarship Fund ("WSF") administers the D.C. school voucher program; it was competitively selected to do so by DOED and the D.C. Mayor's Office. Pl.'s Stmt. of Mat. Facts ¶¶ 17, 18; Def.'s Stmt. of Mat. Facts ¶ 6. WSF is a private organization located in the District of Columbia, "founded in 1993 in order to assist low-income children in D.C. in attending private schools through private funding." Pl.'s Stmt. of Mat. Facts ¶ 16.

Pursuant to the Act, DOED and the D.C. Mayor's Office "shall jointly select an independent entity to evaluate annually the performance of students" in the voucher program. Act § 309(a)(1). See also MOU at 1 ("[T]he Act requires the Secretary and the Mayor to select jointly an independent entity to conduct an evaluation of the Program."); id. at 4. While there is some disagreement as to the exact role of each of the following entities, the Georgetown School Choice Demonstration Project and Westat are responsible as set forth in a five-year contract (and possibly related subcontracts) for conducting said "independent" evaluations of the voucher program, as required by statute. Pl.'s Stmt. of Mat. Facts ¶ 19; Def.'s Resp. to Pl.'s Stmt. of Mat. Facts 14 and 19; Def.'s Stmt. of Mat. Facts ¶ 7. Per the Act, the "independent" evaluator is responsible for addressing, among other issues, "[t]he success of the programs in expanding choice options for parents," and "[a] comparison of the academic achievement of participating eligible students." Act § 309(4). The information in the independent evaluative reports is to be submitted to DOED, which is obligated to submit to Congress "an annual report on the findings of the [activities and achievement reports submitted by grantees]." Id. § 310(a), (b), and (d).

Plaintiff made three separate FOIA requests of Defendant requesting certain documents related to the voucher program. Pl.'s Stmt. of Mat. Facts ¶¶ 2, 6, 11; Def.'s Stmt. of Mat. Facts ¶¶ 10, 14, 18. While Defendant disclosed thousands of documents to Plaintiff, Defendant withheld certain documents pursuant to various FOIA exemptions. Pl.'s Stmt. of Mat. Facts ¶ 3, 4, 13, 14, 15; Def.'s Stmt. of Mat. Facts ¶¶ 11, 15, 16, 19. Plaintiff exhausted its administrative remedies with respect to each FOIA request. Pl.'s Stmt. of Mat. Facts ¶ 5, 10, 12; Def.'s Stmt. of Mat. Facts ¶¶ 13, 17, 20.

Plaintiff filed the present action against Defendant on April 13, 2005, filing an Amended Complaint (now the operative complaint) on May 13, 2005. Plaintiff "seeks the government's release of records pertaining to, inter alia, the new federally funded school voucher program in the District of Columbia . . . , under which millions of dollars in public funds are being spent to send children to religious and other private schools in the District of Columbia." Am. Compl. ¶ 2.

After Defendant filed a Vaughn index in installments, the Parties filed a [22] Stipulation on January 10, 2006, listing the three categories of records still in dispute and providing five examples from the Vaughn index for each of the aforementioned categories. According to the Stipulation, Defendant continues to withhold documents falling into the following three categories pursuant to FOIA Exemption 5: (1) communications between DOED and WSF; (2) communications between DOED and the District of Columbia Mayor's Office; and (3) communications between DOED and Westat and/or Georgetown University. Stipulation ¶¶ 2, 3, and 4.

On January 30, 2006, Plaintiff filed its Motion for Summary Judgment (hereinafter, "Plaintiff's Motion for Summary Judgment"). On April 12, 2006, Defendant filed its Cross Motion for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment (hereinafter, "Defendant's Cross Motion for Summary Judgment"). On May 12, 2006, Plaintiff filed its Opposition to Defendant's Cross Motion for Summary Judgment and its Reply to its own Motion for Summary Judgment (hereinafter, "Plaintiff's Opposition"). On May 25, 2006, Defendant filed its Reply to its own Cross Motion for Summary Judgment (hereinafter, "Defendant's Reply"). The Parties' cross-motions are accordingly ripe for disposition. The Court notes that there are no disputes with respect to material facts in this case; rather the Parties have differing interpretations of the law as applied to the remaining categories of documents in dispute. See Def.'s Resp. to Pl.'s Stmt. of Mat. Facts (providing minor clarifications with respect only to Plaintiff's Statement of Material Facts ¶¶ 3, 13, 14, and 19: "Defendant submits that none of these corrections involves a genuine issue of material fact, and that this case may properly be resolved by summary judgment procedure").

II. LEGAL STANDARD

In reviewing a motion for summary judgment under the FOIA, the Court must conduct a de novo review of the record. See 5 U.S.C. § 552(a)(4)(B). In the FOIA context, "de novo review requires the court to 'ascertain whether the agency has sustained its burden of demonstrating that the documents requested are not "agency records" or are exempt from disclosure under the FOIA.'" Assassination Archives & Research Ctr. v. Cent. Intelligence Agency, 334 F.3d 55, 57 (D.C. Cir. 2003) (quoting Summers v. Dep't of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998)).

Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A genuine issue of material fact exists only when there is sufficient evidence such that a reasonable juror could find for the party opposing the motion. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 251-52 (1986). Furthermore, entry of summary judgment is mandated against a party if, after adequate time for discovery and upon motion, the party fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Under FOIA, all underlying facts and inferences are analyzed in the light most favorable to the FOIA requester; as such, only ...


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