CREW v. Department of Education: Re: Susan Landry: 10/10/08 - CREW Cross Motion for Summary Judgement

8/7/2019 CREW v. Department of Education: Re: Susan Landry: 10/10/08 - CREW Cross Motion for Summary Judgement

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UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

Citizens for Responsibility and )Ethics in Washington, )

)Plaintiff, ))

v. ) Civil Action No.: 07-2055 (JDB)

)

U.S. Department of Education ))

Defendant. )

____________________________________)

PLAINTIFFS CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION

TO DEFENDANTS MOTION FOR SUMMARY ON COUNT ONE

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, Plaintiff, Citizens for

Responsibility and Ethics in Washington, by and through undersigned counsel, cross-moves for

summary judgment and opposes Defendant U.S. Department of Educations motion for summary

judgment on Claim One of the Complaint. In support of Plaintiffs cross-motion for summary

judgment and opposition to the Defendants motion for summary judgment on Claim One of the

Complaint, Plaintiff is simultaneously filing its Memorandum in Support of Cross-Motion for

Summary Judgment and Opposition to Defendants Motion for Summary Judgment on Claim

One of the Complaint, its Statement of Material Facts Not In Genuine Dispute, a Response to

Defendants Statement of Material Facts, and a proposed Order.

Dated: October 10, 2008 Respectfully Submitted,

___________/s/_______________

Scott A. Hodes, D.C. Bar #430375

P.O. Box 42002Washington, D.C. 20015

301-404-0502

413-641-2833 (fax)

Case 1:07-cv-02055-JDB Document 14 Filed 10/10/2008 Pag


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2

__________/s/_________________Anne L. Weismann, D.C. Bar # 298190

Melanie Sloan, D.C. Bar # 434584

Citizens for Ethics andResponsibility in Washington

1400 Eye Street, N.W., Suite 450Washington, D.C.202-408-5565

202-588-5020 (fax)

Attorneys for Plaintiff

Case 1:07-cv-02055-JDB Document 14 Filed 10/10/2008 Pag


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)Plaintiff, ))


)


Defendant. )

____________________________________)

PLAINTIFFS OPPOSITON TO DEFENDANTS MOTION FOR SUMMARY

JUDGMENT AND MEMORANDUM IN SUPPORT OF PLAINTIFFSCROSS-MOTION FOR SUMMARY JUDGMENT ON COUNT ONE

INTRODUCTION

This Freedom of Information Act (FOIA) matter began on May 11, 2007, when

plaintiff Citizens for Responsibility and Ethics in Washington (CREW) sent a straight-forward

FOIA request to defendant U.S. Department of Education (Education) seeking documents

relating to contacts defendant had with various offices of the White House concerning Dr. Susan

Landry and other specified educational products or entities associated with Dr. Landry. CREW

also sought a waiver of fees associated with processing its request.

As it had in the past with other FOIA requests from CREW, Education initially refused to

conduct any search, attempted to justify its stalling by patently unreasonable grounds, and

refused to grant CREW a fee waiver. Only after litigation commenced did Education agree that

CREW was entitled to a fee waiver and agree to conduct a search for responsive documents.

Defendant now claims portions of responsive documents are either outside the scope of the

request or subject to a FOIA exemption and seeks summary judgment on Count One. Defendant

also seeks dismissal of plaintiffs pattern and practice claim, which is based on defendants

Case 1:07-cv-02055-JDB Document 14-2 Filed 10/10/2008 Pag


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established practice of denying plaintiff a fee waiver at the administrative level, only to reverse

this position (as was the case here) once litigation begins.

At this point plaintiff does not oppose the motion to dismiss Count Three, the pattern and

practice claim, although CREW continues to believe that Education has adopted a policy of

forcing CREW to litigate fee waiver issues in retaliation for an internal agency investigation that

was prompted by a request CREW made of the inspector general for Education. Defendants

motion for summary judgment is without merit and summary judgment should instead be entered

for plaintiff on Count One. Defendant has improperly deemed portions of documents non-

responsive and has not justified its claimed exemptions.

FACTUAL BACKGROUND

Plaintiff CREW is a non-profit corporation dedicated to protecting the rights of citizens

to be informed about the activities of government officials and to ensuring the integrity of

government officials. Complaint for Declatory Judgment and Injunctive Relief, 5 (hereinafter

Compl.). In particular, CREW monitors closely the laws and rules that apply to government

agencies and pushes the U.S. government to take ethics issues seriously. Id., 6. CREW relies,

in part, on various federal disclosure statutes such as the FACA and the Freedom of Information

Act, 5 U.S.C. 552 (FOIA) for information to assist it in providing the public with

information concerning government decisions and the government decision making process. Id.

5.

FOIA Request of May 11, 2007

On May 11, 2007, CREW requested under the FOIA records from January 20, 2001 to

the present between officials from Education and those at the (1) Executive Office of the

President; (2) White House Office; and (3) Office of the First Lady regarding any and all of the

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following: (A) Susan Landry or Susan Landry Moore; (B) University of Texas Health Science

Center at Houstons Childrens Learning Institute; (C) University of Texas Health Science

Center at Houstons Center for Improving the Readiness of Children for Learning and Education

(CIRCLE); (D) Texas State Center for Childhood Development (SCCED); (E) Texas Early

Education Model (TEEM); and or (E) Wireless Generations mClASS:CIRCLE software.

Compl. Ex. 1 at 1. CREW also specifically requested any communications from January 20,

2001, to present, between officials at the Department of Education and: (A) Susan Landry or

Susan Landry Moore; (B) Officials or employees at the University of Texas Health Science

Center at Houstons Children Learning Institute (CLI); (C) Officials or employees at the

University of Texas Health Science Center at Houstons Center for Improving the Readiness of

Children for Learning and Education (CIRCLE); (D) Officials or employees at the Texas State

Center for Childhood Development (SCECD); and or (E) Officials or employees at Wireless

Generation. Id. at 1-2. CREW also requested a waiver of fees associated with the processing of

its request. Id. at 3.

Rather than simply acknowledging the request, granting the fee waiver and beginning the

search for responsive records, defendant began a series of moves to basically avoid fulfilling the

agencys responsibilities under the FOIA. Initially, by letter dated June 21, 2007, Education

responded to CREWs FOIA request with the claim that it could not process the request as

drafted because it did not describe the records sought with a reasonable amount of detail such

that a Department employee would be able to locate potentially responsive documents with a

reasonable amount of effort. Compl. Ex. 2 at 1-2. Defendant also denied plaintiffs request for

a fee waiver. Id. at 3.

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CREW responded by letter dated July 11, 2007, pointing out that its request clearly

identified specific topics and specific records it is seeking. Compl. Ex. 3 at 2. As CREW also

noted, an agency is not entitled to avoid its obligations under the FOIA by designating a request

as burdensome. Id. CREW expressed its willingness to cooperate with Education on any

scope problem or narrowing and requested that the agency provide CREW information to

accomplish this end. Id. at 3.

CREW also appealed the denial of its fee waiver on July 24, 2007. Compl. Ex. 4.

CREW explained how the agency had gone beyond the statutory and regulatory standards for a

public interest fee waiver by distorting the legal standard. Id. at 2. And CREW explained

precisely how the subject of its request concerned the operations of the federal government, a

prerequisite for a fee waiver. Id.

By letter dated October 22, 2007, Education denied CREWs request based on its

continuing insistence that the request fails to reasonably describe the records sought. Compl. Ex.

5. Education also referenced an earlier letter of August 23, 2007, which CREW never received,

faulted CREW for failing to respond, and used this as a basis to deny CREWs administrative

appeal.1

As this correspondence made clear, the parties were at an impasse despite CREWs

multiple efforts to explain the precise categories of records it is seeking. Accordingly, plaintiff

filed the Complaint in this matter on November 14. 2007.

Following commencement of this action, the parties reached an agreement on the terms

of the search and defendant granted plaintiff a fee waiver on this request. Joint Status Report

1 Defendant asserts that it has proof of sending a letter dated August 23, 2007, a letter whichplaintiff has no record of receiving. Declaration of Marcella Goodridge (Goodridge Decl.),

10. Whether or not this letter was ever actually sent by defendant or received by plaintiff has noactual bearing on the issues remaining on this case.

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(Ap. 2, 2008), 3-5. Defendant subsequently located 78 pages of records, of which 52 pages

were released in full and 26 were withheld in full or in part.

Defendant has now filed its dispositive motion seeking summary judgment on Count 1 of

the Complaint and dismissal of Count 3 of the Complaint on ripeness and standing grounds and

for an alleged failure to state a claim under the FOIA 2

ARGUMENT

I. Defendant Has Not Established That Records Were Properly Withheld.

Defendant Education has withheld certain portions of records based on its unilateral

decision that these portions of otherwise admittedly responsive documents are themselves non-

responsive. Defendant has identified three categories of allegedly non-responsive records,

each of which is discussed below.3

1. Extraneous Names In Document Headers

Defendant identifies the first category of allegedly non-responsive material as

extraneous names in document headers. While plaintiff believes this material is within the

scope of its request, plaintiff is not interested in this material and therefore is not challenging

these withholdings.4

2. Portions of E-Mail Chains

2The parties have agreed that Count Two of the Complaint is moot and is not being pursued by

plaintiff. Nor is defendant pursuing Count Three.3 Defendant also asserts that many of these non-responsive documents are also protected

pursuant to the deliberative process privilege of FOIA exemption 5, a claim that is equallywithout merit.4 Defendants description of these non-responsive document headers provided in the

Goodridge Decl., 18 is the first full description defendant has provided. Had this information

been provided earlier, it would have avoided litigation on this issue. It was far from clear whyportions of electronic records, otherwise deemed responsive, were not also responsive.

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Defendant also characterizes as non-responsive portions of e-mail chains concerning

matters that defendant alleges are unrelated to the substance of plaintiffs request. Defendants

Brief at 10-12. According to defendant, this information includes lunch or dinner plans, and

transportation and lodging options, Declaration of Marcella Goodridge, 19 (Goodridge Decl.),

but does not specifically concern the substance of plaintiffs request, which the government

characterizes as the No Child Left Behind Act, the Reading First program, the Early Childhood

Educator Professional Development program, [and] the Fund for Improvement in Education.

Id. From this defendant draws the tautology that because the withheld e-mail portions do not

relate directly to any of these four programs, the material is not responsive to plaintiffs request.

These documents, however, are within the scope of plaintiffs request, are responsive to

the request, and should be released to plaintiff. It is now clear that after searching for responsive

documents, defendant unilaterally decided that certain portions of admittedly responsive

documents nevertheless are not within the scope of plaintiffs request. Defendant reached this

conclusion after applying its self-made criterion of whether or not the specific portion of the e-

mails in question specifically discussed one of four government programs.

Initially, it should be noted that this is a processing issue, not a search issue. Defendants

search for responsive records turned up these records. Once the records were found, defendant

was obligated to do one of three things: (1) release the e-mails; (2) withhold them in full; or (3)

withhold them in part pursuant to one of the nine FOIA exemptions. 5 U.S.C. 552(b). If there

were a legitimate question of whether or not documents were within the scope of plaintiffs

request, the agency should have consulted with the plaintiff. Department of Justice guidance

specifically states that agencies should be careful to undertake any scoping of documents

found in response to a request only with full communication with the FOIA Requester. See

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Department of Justice FOIA Guide (DOJ FOIA Guide), Procedural Requirements at 40

(located at http://www.usdoj.gov/oip/foia_guide07/procedural_requirements.pdf, last visited

September 16, 2008).

There was no such communication here. While defendant tries to place the blame on

plaintiff and the parties failure initially to reach an agreement on the proper scope of the search,

this ignores the more salient facts that the parties reached an agreement, the documents were

located and at that point defendant failed to contact plaintiff about the scope of its request, in

direct contravention of Department of Justice FOIA policy. Without this communication,

defendant was obligated to construe the request as liberally as possible, Nation Magazine v.

United States Customs Service, 71 F.3d 885, 890 (D.C. Cir. 1990); LaCedra v. Executive Office

for U.S. Attorneys, 317 F. 3d 345, 347-348 (D.C. Cir. 2003), which it failed to do.

Defendant also attempts to excuse its failure to comply with its FOIA obligations by

arguing that processing this material is burdensome and costly and suggests that the better course

is to ignore this material so that the agency can respond to FOIA requests in a more expeditious

matter. Goodridge Decl.,19. Defendant cites no case law for this novel excuse, and plaintiff

knows of none. Moreover, as a factual matter defendants actions here -- withholding specified

portions and attempting to justify the withholdings once in litigation -- actually increased its

burden. Simply processing these few lines of select e-mails and releasing them to plaintiff would

have been far less burdensome in terms of both time and resources.

Defendant was obligated to construe the request as broadly as possible. Instead,

however, defendant adopted an arbitrary and unilaterally-selected approach of limiting its

analysis to whether specified portions of e-mails specifically named one of four government

programs. But plaintiff did not limit its request in this way, Complaint, Ex. 1, nor did any

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subsequent conversations between the parties yield this limitation. Accordingly, the arbitrary

limits defendant placed on the request are patently improper. The FOIA requires defendant to

process the responsive documents pursuant to the request as drafted, and not as the agency would

redraft the request. See Miller v. Casey, 730 F.2d 773, 777 (D.C. Cir. 1984).

Further, defendant did not even correctly apply the arbitrary test it adopted for limiting

the scope of the request. For example, defendant excluded as non-responsive dinner plan

discussions within the located documents, even though such discussions are related at least by

inference to a government program. The only reason the plans were on the e-mail thread in the

first place is because the e-mail thread itself relates to one of the government programs and the

dinner plan (or lunch, travel or lodging) discussion was made in connection with a meeting or

event surrounding one of the programs. Defendant made its FOIA request to determine what

contact government employees and certain individuals and/or representatives of organizations

were having and all of these documents -- which reflect those contacts -- are clearly within the

scope of plaintiffs request.5

3. Internal Governmental Communications

Finally, defendant has withheld portions of e-mail threads it describes as

communications internal to the Department, and communications between Department officials

and employees of other Executive agencies or branches of government as non-responsive.

Goodridge Decl.20. Once more it appears that defendant has confused its responsibility in

searching for records with its responsibility to process records. Moreover, as with other

categories discussed above, defendant did not contact plaintiff about the scope of these

5The logic used by the government would always exclude a great amount of material from a

request for correspondence where a government program is not specifically named in the request.

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documents pursuant to Department of Justice policy. See DOJ FOIA Guide, Procedural

Requirements at 40.

Defendants assertion that it may properly exclude documents initially identified through

its search as responsive is unsupported by any case law. Instead, defendant cites cases that either

dealt with issues relating to the initial search for responsive documents, see Kowalczyk v. Dept

of Justice, 73 F.3d 386, 389 (D.C. Cir. 1996), something not at issue here, or that are so

factually different from the case at hand as to be irrelevant to the issues raised here. See

Mogenhan v. Dept of Homeland Sec., No. 06-2045, 2007 WL 2007502 at *3 (D.D.C. July 10,

2007) (Request for investigative files concerning plaintiff found not to include separate and

distinct employment records of plaintiff that were maintained by government).

Defendants newly minted justifications for its withholdings ignore that the agency

initially located the responsive records and, in fact, has already released portions of the e-mails at

issue. Still unexplained is why these entire documents were located in the first place and why

portions were released to plaintiff before defendant suddenly decided that other portions were

non-responsive. The only logical conclusion, which defendant fails to rebut, is that the

subsequently withheld portions are also responsive and must therefore be released.

II. Documents Were Not Properly Withheld Pursuant to FOIA Exemption 5.

Beyond its claims of non-responsiveness, defendant asserts that portions of the

documents are properly withheld pursuant to the deliberative process privilege protected by

exemption 5. The agency, of course, bears the burden of establishing that the withheld

information is subject to one of the nine FOIA exemptions. 5 U.S.C. 552(a)(4)(B); Summers

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v. Department of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998). As described below, defendant

has failed to establish that these documents are properly exempt under FOIA exemption 5. 6

Initially, defendant has failed to establish that certain of these e-mails are within the

threshold of FOIA exemption 5. Certain of the e-mails were circulated to parties outside of the

executive branch of the U.S. Government. See Bates Documents 33, 39, 47-49, 58 attached as

Attachments A and B to Exhibit 1 of the Goodridge Decl., (hereinafter Bates Documents).

The United States Supreme Court has held that communications with outsiders seeking a

government benefit at the expense of others do not qualify fall within exemption 5 protection.

See Dept of Interior v. Klamath Water Users Protective Assn, 532 U.S. 1, 16 (2001). Yet here,

defendant has failed to establish the nature of the relationship these third parties have with the

executive branch. In the case of e-mails exchanged with Susan Landry, Ms. Landry is described

by defendant as an expert in early childhood education and invitee to the conference whom

officials at the Department (and other agencies) sometimes consulted for advice on scientific

developments and recent research, and whose expertise was highly regarded within the

Executive branch. See Goodridge Decl., 31. It is true that an agencys solicitation of opinions

and recommendations from outside consultants may be considered intra-agency for FOIA

purposes even after the Supreme Courts ruling in Klamath. See CREW v. U.S. Dept of

Homeland Sec., 514 F. Supp. 2d 36, 44 (D.D.C. 2007)(appeal pending). The agency, however,

must show that the individual qualifies as an outside consultant and is not operating in his or her

interests at the expense of others. Klamath at 16.

6 Defendant asserts that many of the documents withheld pursuant to FOIA exemption 5 are alsonon-responsive to plaintiffs request. As described above, this claim is equally non-meritorious.

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Here, except for a conclusory statement about Ms. Landrys alleged relationship with the

government, defendant provides no facts about that relationship. The agency has not established

how Ms. Landry was used as a consultant, on what matters her recommendations were sought, if

this was by a contract that imposed specific responsibilities on Ms. Landry and/or the

government, or how some unknown persons value of her expertise qualifies her to meet the test

of inter/intra government for exemption 5 purposes.

Further, the government attempts to withhold portions of an e-mail chain sent to

Katherine Gorton at [email protected] . See Documents 33 and 39. Defendant,

however, provides no description of how Ms. Gorton, apparently a staffer in the House of

Representatives, fits within the threshold of Exemption 5.

Finally, certain of the withheld documents were exchanged with officials from the State

of Florida. See Bates Document 58. Defendant does not explain how this e-mail transmitted

outside the executive branch of the federal government meets the threshold requirements of

exemption 5. Defendant states that [i]n the months leading up to the Florida conference, federal

officials worked closely with stated officials (in the governors office and in the Florida

Department of Education) to develop a program that would achieve national priorities and

accommodate local interests, while working toward the common goal of improving early

childhood education. Goodridge Decl., 33. The precise nature of the federal agencys

relationship with state officials, however, is far from clear and does not provide a basis from

which to determine whether the exemption 5 threshold is met. For example, this description

could be interpreted as suggesting some friction between the state of Florida and the defendant

and the need to work harder to improve relationships. Also unknown is the extent to which the

program under consideration was intended be a joint federal-state program, would supplement,

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mailto:[email protected]:[email protected]


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or would compete with a state program. Without further explanation it is not possible to

ascertain whether the state officials have the kind of consultative relationship with Education that

would afford these communications the protection of Exemption 5. See People for the Am. Way

Found. v. U.S. Dept of Education, 516 F. Supp. 2d 28, 37-38 (D.D.C. 2007) (finding documents

sent from District of Columbia did not meet test as consultant for Department of Education).

Without this factual predicate, these third parties do not meet the threshold of FOIA

exemption 5 and the e-mail chains in which information was provided to or sent from them must

be released.

Additionally, the government has not established that the material is subject to the

deliberative process privilege itself. Defendant seeks to protect four categories of information

pursuant to exemption 5. However, all of the governments arguments, when considered in the

context of the information itself and governing case law, fail to establish that this information is

protected by the deliberative process privilege.

First, Education seeks to protect as within the deliberative process privilege one line in an

e-mail entitled Draft Congressional Testimony. See Bates Documents 30. Defendant claims

this redaction reflects the authors role in drafting and arriving at the final version of []

congressional testimony of an NIH employee. Goodridge Decl., 23. But, as the document

itself reflects, this is a statement of a Department of Education employee transmitted only within

the Department of Education and had nothing to do with actually commenting on or editing the

draft testimony. In fact, the document itself contains the statement: [b5] here is Reids final

testimony that he is giving today. Id. Thus, the redacted document does not appear to have

anything to do with developing congressional testimony. As such, the defendant has not

established what deliberative process is actually invoked, and the role the document played in the

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course of that process. Defendant has, therefore, not met its burden of proof and this information

should be released. Coastal States Gas Corp. v. Dept of Energy, 617 F.2d 854, 868 (D.C. Cir.

1980).

Second, defendant has redacted pursuant to the deliberative process privilege information

pertaining to the vetting of a potential witness at a congressional hearing, Dwayne Crompton.7

Defendant, however, fails to establish that this is a deliberative process of the Education

Department or even of the executive branch. As the document itself establishes, Rep. Lynne

Woolsey wanted to invite Dwayne Crompton to testify as a Democratic witness for a Head Start

Hearing. See Bates Stamp No. 33. As such, it is not clear what role the Republican-controlled

Department of Education, an agency in the executive branch, had in vetting Mr. Crompton as a

witness in a legislative branch hearing. Defendant claims the deliberative process that withheld

the e-mails was preliminary feedback regarding his [Cromptons] suitability. Goodbridge

Decl., 26. This is not, however, a decision that would be made by the defendant, or even

anyone within the executive branch. Further, it is not clear from defendants statements that the

statements about Mr. Crompton are opinions rather than facts. Quite simply, no matter what the

feedback was, this information simply has not been established as something that can be

protected by a deliberative process of the executive branch, and as such is not protected pursuant

to Exemption 5 of the FOIA and must be released. Dow Jones & Co. v. Department of Justice,

917 F.2d 571, 575 (D.C. Cir. 1990) (letter to House of Representatives committee found to be

outside of protections of exemption 5).

Third, defendant claims that portions of material concerning preparations for conferences

on early childhood education are properly withheld pursuant to the deliberative process privilege.

7As described above, certain of these e-mails fail the threshold test for exemption 5 as well as

not being protected by the deliberative process privilege.

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But many of the so-called decisions defendant attempts to protect are agency decisions that

have absolutely nothing to do with agency policy, such as suggestions and deliberations about

potential dates and venues for, and invitees to the conference and recommendations for

proposed content and cost minimization of a conference. Goodridge Decl., 30. To be

protected pursuant to the deliberative process privilege, the decision must be a policy decision,

not a routine agency operating decision. N.Y. Times Co. v. United States DOD, 499 F. Supp. 2d

501, 514 (S.D.N.Y. 2007). Accordingly, defendant has not met its burden of establishing that

this material falls within the deliberative process privilege of exemption 5.

Finally, defendant attempts to protect under the deliberative process privilege

discussions that arose following newspaper articles. Defendant states that these deliberations

were the role of the federal government in improving student achievement and the usefulness

of standardized test scores in setting goals and measuring progress on that front. Goodridge

Decl.,35. Once again, however, defendant comes up short as the agency has failed to identify

what actual decisions are being made. Instead, defendant merely describes an ivory tower type

of discussion prompted by press conference of matters impacting defendant. This is not the type

of information protected by the deliberative process privilege. Mayer, Brown, Rowe & Maw v.

IRS, 537 F. Supp. 2d 128, 136-137 (D.D.C. 2007). Accordingly, because defendant has not

established that these discussions are protected pursuant to the deliberative process privilege,

they must be released.

CONCLUSION

Defendant has failed to meet its burden of proving that it properly withheld portions of

records at issue in this matter. Accordingly, these records should be disclosed to plaintiff.


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15

___________/s/_______________Scott A. Hodes, D.C. Bar #430375

P.O. Box 42002

Washington, D.C. 20015301-404-0502

413-641-2833 (fax)__________/s/_________________

Anne L. Weismann, D.C. Bar # 298190

Melanie Sloan, D.C. Bar # 434584

Citizens for Ethics andResponsibility in Washington

1400 Eye Street, N.W., Suite 450

Washington, D.C.202-408-5565

202-588-5020 (fax)




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)Plaintiff, ))


)


Defendant. )

____________________________________)

PLAINTIFFS OPPOSITION TO DEFENDANTS STATEMENT OF MATERIAL

FACTS

Pursuant to Local Rule 7.1(h) and 56.1, Plaintiff, Citizens for Responsibility and Ethics

in Washington (CREW), by and through undersigned counsel, hereby responds to Defendants

Statement of Material Facts submitted as part of its Motion to Dismiss and Motion for Summary

Judgment and states the following additional facts:

1. Plaintiff admits that on May 11, 2008, it sent a FOIA request to defendant. Plaintiff

refers the Court to that request for a full and complete statement of its contents. Plaintiff admits

that the request did not identify any particular Department of Education program, nor did it name

any of the officials whose communications were sought but avers that this is not a required

element of a FOIA request.

2. Plaintiff admits that on May 11, 2008, it sent a FOIA request to defendant and sought

a fee waiver for that request. Plaintiff refers the Court to that request for a full and complete

statement of its contents. Plaintiff admits that the request did not identify any particular

Department of Education program, nor did it name any of the officials or employees of the

Case 1:07-cv-02055-JDB Document 14-3 Filed 10/10/2008 Pa


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various institutions whose communications were sought but avers that this is not a required

element of a FOIA request.

3. This paragraph characterizes internal actions of defendant and as such plaintiff is

without the knowledge to admit or deny.

4. This paragraph characterizes defendants internal electronic search capabilities and as

such plaintiff is the without knowledge to admit or deny.

5. This paragraph is defendants characterization of search results for electronic

documents and the burden it may place on defendants FOIA processing responsibilities as set

forth in Ms. Goodridges declaration which speaks for itself.

6. Plaintiff admits that on June 20, 2007, defendant sent a letter to plaintiff and refers the

Court to that letter for a full and complete statement of its contents.

7. Plaintiff admits that on July 11, 2007, it sent a letter to defendant and refers the Court

to that letter for a full and complete statement of its contents.

8. This paragraph is a description of a letter defendant claims it sent to plaintiff on

August 23, 2007. As plaintiff has no knowledge of ever receiving this letter, it cannot admit or

deny its contents.

9. Plaintiff admits it did not respond to defendants August 23, 2007 letter.

10. Plaintiff admits that on October 22, 2007, defendant sent a letter to plaintiff and

refers the Court to that letter for a full and complete statement of its contents.

11. Plaintiff admits it filed the instant lawsuit on November 14, 2007. Plaintiff admits

that during subsequent negotiations the parties agreed to the terms that the defendant would

search for and that defendant granted plaintiff a fee waiver for this request.

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3

12. The first two sentences is a description of the search undertaken by defendant as

described in Ms. Goodridges declaration which speaks for itself. Plaintiff admits that the

adequacy of the search is not at issue in this case.

13. Plaintiff admits that by letter dated June 16, 2008, defendant released in full or in

part records responsive to its FOIA request.

14. Plaintiff admits that Marcella Goodridge has provided a declaration and a Vaughn

index in this matter. Plaintiff denies that the material provided by Ms. Goodridge establishes

that all reasonably segregable, non-exempt material responsive to Plaintiffs request has been

released as this is a statement of opinion not of fact.

15. This paragraph is a characterization of Ms. Goodridges job responsibilities as set

forth in her declaration which speaks for itself.

16. Plaintiff admits this paragraph.


___________/s/_______________

Scott A. Hodes, D.C. Bar #430375

P.O. Box 42002Washington, D.C. 20015

301-404-0502

413-641-2833 (fax)

__________/s/_________________

Anne L. Weismann, D.C. Bar # 298190

Melanie Sloan, D.C. Bar # 434584Citizens for Ethics and

Responsibility in Washington

1400 Eye Street, N.W., Suite 450Washington, D.C.

202-408-5565

202-588-5020 (fax)Attorneys for Plaintiff



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)Plaintiff, ))


)


Defendant. )

____________________________________)

PLAINTIFFS STATEMENT OF MATERIAL FACTS NOT IN GENUINE DISPUTE

Pursuant to Local Rule 7.1 and 56, Plaintiff, Citizens for Responsibility and Ethics in

Washington (CREW), by and through undersigned counsel, hereby submits its Statement of

Material Facts Not in Genuine Dispute in support of its Cross-Motion for Summary Judgment:

1. On May 11, 2007, CREW sent a FOIA request to defendant U.S. Department of

Education (Education) seeking documents relating to contacts with Dr. Susan Landry or other

specified products or entities associated with Dr. Susan Landry. (attached as Exhibit 1).

Specifically, CREW requested records from January 20, 2001 and present between officials from

Education and those at the (1) Executive Office of the President; (2) White House Office; and (3)

Office of the First Lady regarding any and all of the following: (A) Susan Landry or Susan

Landry Moore; (B) University of Texas Health Science Center at Houstons Childrens Learning

Institute; (C) University of Texas Health Science Center at Houstons Center for Improving the

Readiness of Children for Learning and Education (CIRCLE); (D) Texas State Center for

Childhood Development (SCCED); (E) Texas Early Education Model (TEEM); and or (E)

Wireless Generations mClASS:CIRCLE software. Compl. Ex. 1 at 1. CREW also specifically

requested any communications from January 20, 2001, to present, between officials at the



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Department of Education and: (A) Susan Landry or Susan Landry Moore; (B) Officials or

employees at the University of Texas Health Science Center at Houstons Children Learning

Institute (CLI); (C) Officials or employees at the University of Texas Health Science Center at

Houstons Center for Improving the Readiness of Children for Learning and Education

(CIRCLE); (D) Officials or employees at the Texas State Center for Childhood Development

(SCECD); and or (E) Officials or employees at Wireless Generation. Id. at 1-2. CREW also

requested a waiver of fees associated with the processing of its request. Id. at 3.

2. By letter dated June 21, 2007, Education responded to CREWs FOIA request,

assigning it Request Number 07-00655-F and stating that it could not process the request as

drafted because it did not describe the records sought with a reasonable amount of detail such

that a Department employee would be able to locate potentially responsive documents with a

reasonable amount of effort. Compl. Ex. 2 at 1-2. Education also denied CREWs request for a

fee waiver. Id. at 2-3.

3. By letter dated July 11, 2007, CREW responded to Educations contention that the

May 11 request did not reasonably describe the records sought. Compl. Ex. 3. CREW noted that

[th]e only explanation Education provided in rejecting CREWs request was that the request

encompasses a potentially large volume of information on broad topics related to anyone in the

Department and anyone at certain outside organizations and fails to identify[] specific

individuals or any subjects. Id. at 2. CREW pointed out that the May 11 request clearly

identified specific topics and records it sought. Id. Finally, CREW stated that just because a

request may be broad or designated burdensome by an agency does not entitle an agency to

state that the records sought are not reasonably described. Id. In conclusion, CREW stated that

it was willing to work cooperatively with Education and to the extent the records presented a

2



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scope problem or to the extent CREW could narrow its requests to reduce the burden, CREW

asked Education to provide information to allow it to do so. Id. at 3. 4. On July 24, 2007, CREW appealed Educations denial of a fee waiver. Compl. Ex. 4

5. By letter dated October 22, 2007, Education denied CREWs request because it failed

to reasonably describe the records sought. Compl. Ex 5. Education construed CREWs July 11,

2007 letter asking for Education to clarify its position to be an appeal of Educations June 20,

2007 denial. Id. at 2.

6. Plaintiff filed its Complaint in this matter on November 14, 2007. Compl. [Dkt. #1].

7. During subsequent discussions, the Department of Education agreed that it would

search for responsive records. Defendant agreed to search the records of relevant personnel in

the Office of the Secretary (OS), the Office of the Deputy Secretary (ODS), the Early

Reading First and Early Childhood Educator Professional Development programs within the

office of Elementary and Secondary Education (OESE), and the Fund for Improvement in

Education within the Office of Innovation and Improvement (OII) which are the departmental

offices with staff members responsible for implementation of the No Child Left Behind Act

generally and/or the above-specified programs for records from January 20, 2001, to the present

that contain the e-mail suffix eop.gov and the following terms:

a. Susan Landry or Susan Landry Moore or

b. Childrens Learning Institute or CLI or

c. Center for Improving the Readiness of Children for Learning and Education or

CIRCLE or

d. Texas State Center for Childhood Development or SCECD or

e. Texas Early Education Model or TEEM or

3



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f. mclass

Joint Status Report (Ap. 2, 2008) 3 [Dkt. #9]. Education also granted CREW a public interest

fee waiver. Id. 5.

8. By letter dated June 16, 2008, Education released certain responsive documents to

plaintiff. Joint Status Report (July 14, 2008) 3 [Dkt. #11] However, Education withheld certain

information it claimed was non-responsive to plaintiffs request or was exempt from disclosure

pursuant to 5 U.S.C. 552(b)(5). Goodridge Decl. 17.

9. The Department of Justice advises agencies to only consider documents outside the

scope of a FOIA request after full communication with the requester. Department of Justice

FOIA Guide (DOJ FOIA Guide), Procedural Requirements at 40 (located at

http://www.usdoj.gov/oip/foia_guide07/procedural_requirements.pdf, last visited September 16,

2008).

10. Educations decisions in finding documents non-responsive did not include any

correspondence or other communications with CREW concerning what documents should be

considered within the scope of CREWs request. Goodridge Decl. 13-20.

11. All material claimed to be non-responsive by Education is located and intertwined

with otherwise responsive material. Attachment B to Exhibit 1 of Goodridge Decl.

12. Certain of the responsive documents withheld pursuant to FOIA Exemption 5 were

circulated to parties outside of the executive branch of the federal government. Bates

Documents 33, 39, 47-49, 58 attached as Attachment B to Exhibit 1 of the Goodridge Decl.,


___________/s/_______________

Scott A. Hodes, D.C. Bar #430375P.O. Box 42002

4

http://www.usdoj.gov/oip/foia_guide07/procedural_requirements.pdfhttp://www.usdoj.gov/oip/foia_guide07/procedural_requirements.pdf


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5

Washington, D.C. 20015301-404-0502

413-641-2833 (fax)

__________/s/_________________

Anne L. Weismann, D.C. Bar # 298190Melanie Sloan, D.C. Bar # 434584Citizens for Ethics and

Responsibility in Washington

1400 Eye Street, N.W., Suite 450

Washington, D.C.202-408-5565

202-588-5020 (fax)




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)Plaintiff, ))


)


Defendant. )

____________________________________)

ORDER

The Court having considered plaintiffs cross-motion for summary judgment and

opposition to defendants motion for summary judgment, defendants motion to dismiss and for

summary judgment, and the entire record herein, it is hereby

ORDERED that there being no opposition to defendants motion to dismiss, defendants

motion to dismiss is granted as moot, and it is further hereby;

ORDERED that defendants motion for summary judgment is denied, and it is further

hereby;

ORDERED that defendant release the documents it has attempted to withhold as non-

responsive and/or pursuant to the deliberative process privilege to plaintiff within ten days of this

Courts Order.

DATED________________ ________________________________

JOHN D. BATESUNITED STATES DISTRICT JUDGE
