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

Case 1:07-cv-02055-JDB Document 14 Filed 10/10/2008 Page 1 of 2
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
Citizens for Responsibility and )

Ethics in Washington, )
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Plaintiff, )
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v. ) Civil Action No.: 07-2055 (JDB)
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U.S. Department of Education )
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Defendant. )
____________________________________)
PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION

TO DEFENDANT’S 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 Education’s motion for summary
judgment on Claim One of the Complaint. In support of Plaintiff’s cross-motion for summary
judgment and opposition to the Defendant’s 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 Defendant’s Motion for Summary Judgment on Claim
One of the Complaint, its Statement of Material Facts Not In Genuine Dispute, a Response to
Defendant’s 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 42002
Washington, D.C. 20015
301-404-0502
413-641-2833 (fax)

Case 1:07-cv-02055-JDB Document 14 Filed 10/10/2008 Page 2 of 2
__________/s/_________________
Anne L. Weismann, D.C. Bar # 298190
Melanie Sloan, D.C. Bar # 434584
Citizens for Ethics and
Responsibility in Washington
1400 Eye Street, N.W., Suite 450
Washington, D.C.
202-408-5565
202-588-5020 (fax)
Attorneys for Plaintiff
2

Case 1:07-cv-02055-JDB Document 14-2 Filed 10/10/2008 Page 1 of 15


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Plaintiff, )
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)
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Defendant. )
____________________________________)
PLAINTIFF’S OPPOSITON TO DEFENDANT’S MOTION FOR SUMMARY

JUDGMENT AND MEMORANDUM IN SUPPORT OF PLAINTIFF’S
CROSS-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 plaintiff’s pattern and practice claim, which is based on defendant’s

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. Defendant’s
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
2

following: (A) Susan Landry or Susan Landry Moore; (B) University of Texas Health Science
Center at Houston’s Children’s Learning Institute; (C) University of Texas Health Science
Center at Houston’s 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 Generation’s 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 Houston’s Children Learning Institute (CLI); (C) Officials or employees at the
University of Texas Health Science Center at Houston’s 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
agency’s responsibilities under the FOIA. Initially, by letter dated June 21, 2007, Education
responded to CREW’s 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 plaintiff’s 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 CREW’s 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 CREW’s administrative
appeal. 1
As this correspondence made clear, the parties were at an impasse despite CREW’s
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 which
plaintiff 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 no
actual 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

2
The 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 equally
without merit.
4
Defendant’s 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 why
portions 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 plaintiff’s request. Defendant’s
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 plaintiff’s 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 plaintiff’s request.
These documents, however, are within the scope of plaintiff’s 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 plaintiff’s 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. Defendant’s
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 plaintiff’s
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 defendant’s 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 plaintiff’s 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

5
The 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.
Defendant’s 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. Dep’t
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. Dep’t 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).
Defendant’s 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
9

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 Dep’t of Interior v. Klamath Water Users Protective Ass’n, 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 agency’s solicitation of opinions
and recommendations from outside consultants may be considered intra-agency for FOIA
purposes even after the Supreme Court’s ruling in Klamath. See CREW v. U.S. Dep’t 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 also
“non-responsive” to plaintiff’s request. As described above, this claim is equally non-
meritorious.
10

Here, except for a conclusory statement about Ms. Landry’s 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 person’s 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 Katherine.Gorton@mail.house.gov. 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 governor’s 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 agency’s
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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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. Dep’t 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 government’s 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 author’s 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 Reid’s 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. Dep’t 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 [Crompton’s] 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 defendant’s 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.

7
As 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.
13

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.
14

___________/s/_______________
P.O. Box 42002
301-404-0502
413-641-2833 (fax)
__________/s/_________________
Washington, D.C.
202-408-5565
202-588-5020 (fax)
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Plaintiff, )
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Defendant. )
____________________________________)
PLAINTIFF’S OPPOSITION TO DEFENDANT’S 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 Defendant’s
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

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 defendant’s internal electronic search capabilities and as
such plaintiff is the without knowledge to admit or deny.
5. This paragraph is defendant’s characterization of search results for electronic
documents and the burden it may place on defendant’s FOIA processing responsibilities as set
forth in Ms. Goodridge’s 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 defendant’s 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.
2

12. The first two sentences is a description of the search undertaken by defendant as
described in Ms. Goodridge’s 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 Plaintiff’s request has been
released as this is a statement of opinion not of fact.
15. This paragraph is a characterization of Ms. Goodridge’s job responsibilities as set
forth in her declaration which speaks for itself.
16. Plaintiff admits this paragraph.
___________/s/_______________
P.O. Box 42002
301-404-0502
413-641-2833 (fax)
__________/s/_________________
Washington, D.C.
202-408-5565
202-588-5020 (fax)
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)
Plaintiff, )
)
)
)
Defendant. )
____________________________________)
PLAINTIFF’S 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 Houston’s Children’s Learning
Institute; (C) University of Texas Health Science Center at Houston’s 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 Generation’s 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 Houston’s Children Learning
Institute (CLI); (C) Officials or employees at the University of Texas Health Science Center at
Houston’s 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 CREW’s 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 CREW’s request for a
fee waiver. Id. at 2-3.
3. By letter dated July 11, 2007, CREW responded to Education’s 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 CREW’s 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

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 Education’s denial of a fee waiver. Compl. Ex. 4
5. By letter dated October 22, 2007, Education denied CREW’s request because it failed
to reasonably describe the records sought. Compl. Ex 5. Education construed CREW’s July 11,
2007 letter asking for Education to clarify its position to be an appeal of Education’s 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. “Children’s 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

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 plaintiff’s 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. Education’s 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 CREW’s 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/_______________
P.O. Box 42002
4


301-404-0502
413-641-2833 (fax)
__________/s/_________________
Washington, D.C.
202-408-5565
202-588-5020 (fax)
5



)
Plaintiff, )
)
)
)
Defendant. )
____________________________________)
ORDER
The Court having considered plaintiff’s cross-motion for summary judgment and
opposition to defendant’s 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 defendant’s motion to dismiss, defendant’s
motion to dismiss is granted as moot, and it is further hereby;
ORDERED that defendant’s 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
Court’s Order.
DATED________________ ________________________________
JOHN D. BATES
UNITED STATES DISTRICT JUDGE

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

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

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

UNITED STATES DISTRICT COURT

Citizens for Responsibility and )

PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION

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

Defendant’s Statement of Material Facts, and a proposed Order.

Dated: October 10, 2008 Respectfully Submitted,

UNITED STATES DISTRICT COURT

Citizens for Responsibility and )

PLAINTIFF’S OPPOSITON TO DEFENDANT’S MOTION FOR SUMMARY

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

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

responsive and has not justified its claimed exemptions.

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

FOIA Request of May 11, 2007

Education Model (TEEM); and or (E) Wireless Generation’s mClASS:CIRCLE software.

its request. Id. at 3.

a fee waiver. Id. at 3.

accomplish this end. Id. at 3.

prerequisite for a fee waiver. Id.

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

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

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

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

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

2. Portions of E-Mail Chains

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

documents, defendant unilaterally decided that certain portions of admittedly responsive

mails in question specifically discussed one of four government programs.

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).

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

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

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

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

scope of plaintiff’s 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.

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

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

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

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

interests at the expense of others. Klamath at 16.

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 Katherine.Gorton@mail.house.gov. See Documents 33 and 39. Defendant,

Representatives, fits within the threshold of Exemption 5.

protected by the deliberative process privilege.

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

outside of protections of exemption 5).

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

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

Finally, defendant attempts to protect under the deliberative process privilege

they must be released.

Dated: October 10, 2008 Respectfully Submitted,

UNITED STATES DISTRICT COURT

Citizens for Responsibility and )