Case 1:10-cv-01712-RMC Document 17-1 Filed 06/01/11 Page 1 of 14

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
CITIZENS FOR RESPONSIBILITY AND
ETHICS IN WASHINGTON

Plaintiff,

v. Civ. No. 10-01712 (RMC)

UNITED STATES DEPARTMENT OF

EDUCATION,

Defendant.

DECLARATION OF ELISE COOK

I, Elise Cook, pursuant to 28 U.S.C. § 1746, declare as follows:

1. This declaration supplements, and hereby incorporates, my prior declaration submitted

in this case and executed on February 15, 2011 (February 15, 2011 Declaration).

2. This declaration is submitted in support of the Defendant’s renewed motion for

summary judgment.

3. The statements I make in this declaration are based on my personal knowledge, my

review of documents kept in the ordinary course of business, and my review of relevant

documents and information provided to me by U.S. Department of Education

(Department) employees in the course of my official duties.

4. I am employed as a Management and Program Analyst, and a Public Liaison, in the

Freedom of Information Act (FOIA) Service Center (FSC) of the U.S Department of

Education’s (Department’s) Office of Management (OM). My office is located at 400

Maryland Avenue, S.W., Washington, DC 20202.

5. In this capacity, I am responsible for performing tasks for which FSC is responsible in

administering the Department’s FOIA program, described at ¶¶ 6 and 7 below. I was

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assigned to serve as a Public Liaison with respect to the FOIA request at issue in this

action, Department FOIA Request No. 10-01704-F.

The Department’s FOIA Process

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

contractors regarding the Department FOIA administration; (g) furnishes information on

FOIA compliance as required by relevant laws, statutes, regulations and directives,

including mandated reports on the status of the Department’s FOIA program; (h)

oversees the implementation and management of Department-wide systems and

databases that support the efficient handling of FOIA requests; and (i) coordinates the

disposition of all FOIA appeals received by the Department.

7. FSC is also responsible for centralized Department FOIA functions, including intake,

acknowledgment, initial analysis and assignment, record processing, final review of

proposed redactions, and preparation and issuance of responses involving the

assessment of processing fees, or the denial, in whole or in part, of a request or a fee

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

Department deemed likely to maintain records responsive to the request, because of

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

Express’s Document Manager and redacting them appropriately, and providing

documentation of costs to FSC for use in assessing processing fees where appropriate.

FOIA Request No. 10-01704-F

9. By letter dated July 23, 2010, and received by the Department on the same date, Ms.

Anne Weismann on behalf of Citizens for Responsibility and Ethics in Washington

(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:

a. Mr. Steven Eisman;

b. Any or all individuals identified as officers, directors, or employees of
FrontPoint Partners, LLC;
c. Any or all individuals identified as officers, directors, or employees of Morgan
Stanley Investment Management, Inc.
d. Deputy Undersecretary of Education Robert Shireman;
e. Ms. Pauline Abernathy;
f. Any or all individuals identified as officers, directors, or employees of the
Institute for College Access and Success;
g. Mr. Barmak Nassirian;
h. Any or all individuals identified as officers, directors, or employees of the
American Association of Collegiate Registrars and Admissions Officers;
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i. Mr. Manuel P. Asensio;

j. Any or all individuals identified as officers, directors, or employees of The
Alliance for Economic Stability;
k. Ms. Johnette McConnell Early.

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

communications regarding for-profit education, [she is] seeking only internal

communications regarding any Departmental communications with the outside entities

listed in [her] FOIA request.” Ex. B.

The Department’s Processing of FOIA Request No. 10-01704-F

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

on August 17, 2010.

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

discussed above at paragraph 10 is attached at Exhibit B.

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

of documents, including electronic records, required to be searched and reviewed, the

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

responsive documents subject to FOIA.

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

(OLCA), the Office of Communications and Outreach (OCO), the Office of

Postsecondary Education (OPE), the Office of the Undersecretary (OUS), and the Office

of Planning, Evaluation and Policy (OPEPD). Consistent with established practices,

FSC made this assignment based on its understanding of the subject matter involved and

further identification of offices by the recipients.

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

perceived responsibility for, or involvement otherwise with, Department legal,

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

responsive to the FOIA Request.

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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

responsibility for or involvement with its subject matter (i.e., Department

communications with Steven Eisman, FrontPoint Partners, LLC, Morgan Stanley

Investment Management, Inc., Pauline Abernathy, the Institute for College Access and

Success, Barmak Nassirian, the American Association of Collegiate Registrars and

Admissions Officers, Manuel Asensio, the Alliance for Economic Stability, Johnette

McConnell Early, and Bob Shireman regarding for-profit education).

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”;

“FrontPoint”; “Stanley Investment”; “Pauline Abernathy”; “Institute for College Access

and Success”; “Nassirian”; “American Association of Collegiate Registrars and

Admissions Officers”; “Asensio”; “Alliance for Economic Stability”; “Johnette”; and

“Profit” and “Shireman.” These results were provided to the principal offices identified

in the ¶¶ 14 and 15 above for review and proposed redactions.

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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Secretary using these search terms: “Eisman”; “Abernathy”; “Nassirian”; “Asensio”;

“Early.” The Department conducted another search of this electronic system on or

about May 31, 2011 using these search terms: “Eisman”; “Abernathy”; “Nassirian”;

“Asensio”; “Early”; “FrontPoint”; “Morgan Stanley”; “Stanley Investment”; “Institute

for College Access and Success”; “American Association of Collegiate Registrars and

Admissions Officers”; and “Alliance for Economic Stability.”

20. The Department produced all responsive documents subject to FOIA located as a result

of the referenced searches in ¶¶ 18 and 19 above that were determined to be responsive

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

Smith (OPEPD and OUS).

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

function on their e-mail accounts.

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,

with redactions as noted at ¶¶ 33-42 below.

Summary of Production and Redactions

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

referenced letters are attached as Exhibits C, D, E, F, G, H, and I, respectively.

Specifically:

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25. A November 23, 2010 Interim Response produced 50 pages in their entirety. See

Exhibit C at 2; Cook Feb. 15 Decl. at ¶ 8.

26. A December 3, 2010 Final Response produced to the requester 1,174 pages of records

responsive to the FOIA Request. See Exhibit D at 2; Cook Feb. 15 Decl. at ¶ 9.

27. A December 22, 2010 Response produced 4 pages of records responsive to the FOIA

Request. See Exhibit E at 2; Cook Feb. 15 Decl. at ¶ 10.

28. An April 15, 2011 Interim Response produced 80 pages of records responsive to the

FOIA Request. See Exhibit F.

29. An April 22, 2011 Interim Response produced 252 pages of records responsive to the

FOIA Request. See Exhibit G.

30. An April 28, 2011 Final Response produced 18 pages of records responsive to the FOIA

Request. See Exhibit H at 2.

31. A May 10, 2011 Response produced 97 pages of records responsive to the FOIA

Request. The majority of the documents produced were reprocessed versions of

documents previously submitted to Plaintiff. See Exhibit I at 2.

32. Attached to the Department’s Motion for Summary Judgment are 106 pages of records

responsive to the FOIA Request. These are reprocessed versions of documents

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

and 32, above, of records responsive to the FOIA Request.

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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5 U.S.C. § 552(b). On completion of their reviews, the offices identified in ¶¶ 14 and

15 above uploaded responsive records subject to FOIA into FOIAXpress, the electronic

system the Department uses to process FOIA requests, with recommended redactions

noted, for final review and transmission to the requester by my office.

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

has been released in a previous submission to Plaintiff or is attached to the

Department’s Motion for Summary Judgment.

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

Under Secretary Robert Shireman regarding for-profit education; or (b) between

Department officials regarding communication to, from, or between a Department

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,

50, 57-59, 61, 62, 64, 65.

38. As described in detail in the attached Vaughn Index, the information that remains

identified as exempt under FOIA Exemption 5 are inter-agency and intra-agency

communications reflecting pre-decisional and deliberative communications regarding

the Department’s proposed rulemaking related to for-profit education , i.e., the Gainful

Employment Notice of Proposed Rule Making (NPRM), including data considered,

analysis of the data considered, requests for and substance of legal advice related to the

rule-making process, and the development of internal strategies regarding managing

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

Department has withheld this information to encourage open, frank discussions on

matters of policy between subordinates and superiors, to protect against premature

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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

identified as exempt under FOIA Exemption 6 is personally identifiable information,

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

determined that disclosure of this information would constitute a clearly unwarranted

intrusion in these persons’ privacy that is not outweighed by any public interest. See

Exhibit J, Doc. No. 51.

41. The information identified as exempt under FOIA Exemption 6 also includes e-mail

addresses of staff of the U.S. House of Representatives. The Department understands

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

duties and responsibilities; it would therefore constitute a clearly unwarranted intrusion

in these persons’ privacy that is not outweighed by any public interest. See Exhibit J,

Docs. Nos. 48, 66, 68.

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.

58, 59, 62.

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

activities of the Department. Therefore, I found no public interest in the disclosure of

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

outweighed by any public interest.

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

reviewed line by line to identify reasonably segregable portions of the records

containing exempt information. The Exemption 6 redactions were limited to the above

described e-mail addresses, telephone numbers, and a passcode. The Department has

made discretionary releases of some information which arguably is protected by

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