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Citizens for Responsibility and Ethics In Washington v. United States Dep't of Education

January 23, 2009

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF EDUCATION, DEFENDANT.



The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Document Nos. 25, 27

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART THE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT;GRANTING IN PART AND DENYING IN PART THE DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

This matter is before the court on the parties' cross-motions for summary judgment. The plaintiff, Citizens for Responsibility & Ethics in Washington ("CREW"), moves for summary judgment contending that the defendant, the U.S. Department of Education ("Education"), improperly denied its request for a fee waiver under the Freedom of Information Act ("FOIA"). The plaintiff requests information concerning the extent of the White House's and commercial publishers' involvement in the defendant's administration of the Reading First program, a scientifically based reading research initiative of the No Child Left Behind Act. Claiming that there is public uncertainty about Reading First, the plaintiff argues that it is entitled to a waiver of all fees associated with the processing of its FOIA request. In response, the defendant has filed a cross-motion for summary judgment, declaring that one of the plaintiff's document requests is moot and that the remaining two requests fail to demonstrate a significant contribution to the public's understanding of government operations or activities under FOIA.

Because one of the plaintiff's requests is moot, and the remaining requests satisfy FOIA fee waiver standards, the court grants in part and denies in part the plaintiff's motion for summary judgment and grants in part and denies in part the defendant's cross-motion for summary judgment.

II. BACKGROUND

A. Factual History

The plaintiff is a non-profit organization "committed to protecting the rights of citizens to be informed about the activities of government officials[,] . . . ensuring the integrity of government officials . . . and empowering citizens to have an influential voice in . . . the governmental decision-making process." Am. Compl. ¶ 7. In pursuit of this mission, on March 28, 2007, the plaintiff requested from the defendant, under FOIA, documents and records dating from January 20, 2001 to the present in several categories, which the plaintiff narrowed in a May 21, 2007 e-mail*fn1 as follows:

1. All communications of [fourteen enumerated Department of Education] offices to, from, or referencing any member of the White House staff, including, but not limited to, then-Domestic Policy Advisor Margaret Spellings or Margaret LaMontagne, that mention or relate to Reading First, Early Reading First, "Scientifically Based Reading Research"/"Science Based Reading Research"/"SBRR" or DIBELS.

2. All communications of the above-listed offices, including calendar references and meeting notes, with the executives, employees, consultants, or contractors of the following educational publishers: Houghton Mifflin (including, but not limited to, Maureen DiMarco), SRA/McGraw Hill, Pearson Scott Foresman, Voyager (including, but not limited to, Randy Best), Cambium Learning, Sopris West, and Intellitools.

3. All communications of the above-listed offices, including calendar references and meeting notes, that mention or relate to contacts with the executives, employees, consultants, or contractors of the following educational publishers: Houghton Mifflin (including, but not limited to, Maureen DiMarco), SRA/McGraw Hill, Pearson Scott Foresman, Voyager (including, but not limited, to Randy Best), Cambium Learning, Sopris West, and Intellitools.

Id., Exs. A at 1, E. The plaintiff also requested a waiver of fees for the processing of its request, explaining that "the [requested] disclosures . . . are likely to contribute to the public's understanding of the extent of White House involvement in the administration of the Reading First program, an issue on which the public record is unclear." Id., Ex. A at 3, Attach. 1 at 1; Id., Ex. G, Attachs. G-J (detailing accusations in the media that White House officials improperly influenced the defendant's administration of Reading First). Finally, the plaintiff stated that its request was primarily for non-commercial purposes and explained its plan to "analyze the information responsive to [its] request, . . . share its analysis with the public, either through memoranda, reports or press releases . . . [and] disseminate any documents it acquires from this request to the public." Am. Compl., Ex. A at 3.

In an April 16, 2007 letter, the defendant denied the plaintiff's fee waiver request, explaining that it did not demonstrate a significant contribution to the public's understanding of government operations or activities.*fn2 Id., Ex. B at 4. Furthermore, the defendant determined that the "information regarding [the extent of White House ...


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