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Citizens for Responsibility and Ethics in Washington v. U.S. Department of Education

United States District Court, District of Columbia

November 26, 2012

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Plaintiff,
v.
U.S. DEPARTMENT OF EDUCATION, Defendant.

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Anne L. Weismann, Citizens for Responsibility and Ethics in Washington, Washington, DC, for Plaintiff.

Rhonda C. Fields, United States Attorney's Office, Washington, DC, for Defendant.

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OPINION

ROSEMARY M. COLLYER, District Judge.

Citizens for Responsibility and Ethics in Washington (CREW) fears that policymakers in the U.S. Department of Education were unduly influenced by investors in for-profit education when DoEd developed regulations for that sector. CREW sought documents from DoEd and, dissatisfied with the responses, now sues under the Freedom of Information Act. CREW's allegations sound in conspiracy, but there is nothing conspiratorial about DoEd's handling of its FOIA request. Summary judgment will be granted to DoEd on its motion for summary judgment concerning the scope of its searches and denied to CREW on its motion for partial summary judgment concerning FOIA Exemption 5.

I. FACTS

In the face of news articles [1] that suggested undue influence in the development of DoEd's regulations for the for-profit education sector, CREW filed a request with DoEd on July 23, 2010, pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. See FOIA Request at 3. CREW sought communications from April 20, 2009, to the present from or between DoEd officials and 11 specified individuals or entities:

Mr. Steven Eisman; Any or all individuals identified as officers, directors, or employees of FrontPoint Partners, LLC; Any or all individuals identified as officers, directors, or employees of Morgan Stanley Investment Management, Inc.; Deputy Undersecretary of Education Robert Shireman; Ms. Pauline Abernathy; Any or all individuals identified as officers, directors, or employees of the Institute for College Access and Success; Mr. Barmak Nassirian; Any or all individuals identified as officers, directors, or employees of the American Association of Collegiate Registrars and Admissions Officers; Mr. Manual P. Asen[s]io; Any or all individuals identified as officers, directors, or employees of The Alliance for Economic Stability; Ms. Johnette McConnell Early.
Id. [2]

On October 21, 2010, DoEd contacted CREW about its request, which CREW narrowed somewhat, clarifying that it sought " only internal communications regarding any Department communications with the outside entities listed in" the FOIA Request. See Def. MSJ, II Cook Decl. [Dkt. 17-1] ¶ 10 (quoting II Cook Decl., Ex. B (Oct. 25, 2010, Email from Anne Weisman) (internal quotation marks omitted)). The FOIA Service Center at DoEd initially assigned CREW's FOIA request on August 18, 2010 to four offices likely to have responsive documents: the Office of Communication and Outreach; the Office of Legislative and Congressional Affairs; the Office of Postsecondary Education; and the Office of the Undersecretary. Id. ¶ 14. The Office of the Undersecretary sent the request to the Office of Planning, Evaluation and Policy on November 3, 2010. Def. MSJ, I Cook Decl. [Dkt. 17-6] ¶ 6. In the course of this litigation, the FOIA Service Center further assigned

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the request to the Office of the General Counsel; the Office of the Secretary; the Office of Federal Student Aid; and the Office of the Deputy Secretary. II Cook Decl. ¶ 15. DoEd identified no other likely sources for responsive documents. Id.

DoEd provided responses to CREW in multiple segments.

• On November 23, 2010, DoEd sent 42 pages of records from the Office of Planning, Evaluation and Policy and 8 pages of records from the Office of Communication and Outreach, in full, and notified CREW that the Office of Legislative and Congressional Affairs had no responsive records. I Cook Decl. ¶ 8.
• On December 3, 2010, DoEd sent a " final" response of 1,354 pages from the Office of Postsecondary Education and 506 pages from the Office of the Undersecretary. Id. ¶ 9. The Office of Postsecondary Education redacted information on only four pages, Def. MSJ, Smith Decl. [Dkt. 17-8] ¶ 10-12, and the Office of the Undersecretary released all 506 pages in full.
• On December 22, 2010, DoEd provided in full a single document responsive to CREW's request that was discovered inadvertently in a different FOIA search. I Cook Decl. ¶ 10.
• On April 15, 2011, DoED produced an Interim Response to CREW containing 80 pages located in a further ...

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