Case 1:10-cv-01712-RMC Document 7-4 Filed 02/16/11 Page 1 of 5

UNITED STATES DISTRICT COURT

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

vs. > No. 10-01712

U.S. DEPARTMENT OF EDUCATION, et al. >

>

I, Kathleen Smith, declare as follows:

1. I am currently employed by the U.S Department of

Education. I serve as the Chief of Staff of Policy, Planning and

Innovation in the Office of Postsecondary Education (OPE). Our

office is located at 1990 K Street NW, Washington, DC 20006.

2. I have personal knowledge of the facts stated in this

declaration.

3. On August 18, 2010 our office received a letter

requesting information pursuant to the Freedom of Information Act,

5 U.S.C. § 552, et seq. The request for information is dated July

23, 2010. Ex 1.

4. Ms. Anne Weismann, Chief Counsel at Citizens for

Responsibility and Ethics in Washington (CREW), filed the request

for information pursuant to the Freedom of Information Act (FOIA).

The request was assigned FOIA request No. 10-01704-F. I

coordinated OPE's response for this request.

5. The request for information asks for n any and all

records of or reflecting communications from April 20, 2009, to

the present to, from, and/or between officials at Education

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regarding for-profit education and any and all of the following n

eleven named entities and/or individuals. Ex 1. 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

n
entities listed in [her] FOIA request. Ex 2.

6. OPE serves as the Department's principle policy advisor

on postsecondary education matters. Within this role, OPE was

responsible for primary management of the rulemaking process for

the Department's gainful employment regulations. Specifically,

OPE was primarily responsible for running the negotiated

rulemaking process, drafting the notice of proposed rulemaking,

analyzing all incoming comments on the proposed rules, and holds

primary responsibility for drafting the final rules.

7. After reviewing the OPE employees involved in the

gainful employment regulation process, OPE identified the

following individuals as reasonably likely to have records

responsive to this FOIA request based on their individual roles in

the rulemaking process: Fred Sellers, John Kolotos, David

Bergeron, Dan Madzelan and myself. There are no other individuals

in OPE who are reasonably likely to have records responsive to

this request.

8. Mr. Sellers, Mr. Kolotos, Mr. Bergeron, Mr. Madzelan and

I maintain the types of communications sought by Ms. Weismann in

our individual Departmental email accounts. OPE also searched all

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hard copy correspondence for records responsive to this request.

There are no other locations where responsive records are

reasonably likely to be located.

9. Each of the individuals identified in paragraph 7

conducted an electronic search of their entire email accounts for

communications to or from the following individuals or entities:

Steve Eisman, FrontPoint Partners, Morgan Stanley Investment

Management, Pauline Abernathy, Institute for College Access and

Success Barmak Nassirian, American Association of Collegiate

Registrars and Admissions Officers, Manuel Asensio, the Alliance

for Economic Stability, and Johnette Early, as set forth in the

FOIA request. OPE's hard-copy correspondence database was also

searched using the same search terms. Pursuant to Ms. Weismann's

October 25, 2010 clarification, we also searched the text of all

internal emails in addition to the to/from lines and the subject

line-including those sent to or received from Departmental

employee Robert Shireman-for any mention of the entities listed

above. Pursuant to Ms. Weismann's October 25, 2010 clarification,

internal emails to or from Robert Shireman that did not mention

the external entities listed above were not retrieved for review.

I then reviewed the individual emails retrieved by these

electronic searches for responsiveness to the FOIA request and

subsequent clarification.

10. On December 1, 2010, OPE provided the Department's FOIA

Service Center with 1,354 of pages responsive to this FOIA

request. These records were released to CREW on December 6, 2010.

Four of the 1,354 pages provided by OPE contained redactions

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pursuant to FOIA exemption (b) (5) .

11. OPE redacted the following information pursuant to

FOIA exemption (b) (5) :

a. OPE redacted the body of two emai1s dated April 15,

2010 and handwritten notes appearing across the top of

one of the emails under the deliberative process and

attorney-client privileges. The redacted information

discussed and memorialized OPE's intention to seek

advice from legal counsel, and summarized the substance

of earlier conversations with legal counsel. The

document was reviewed for segregability and all non-

exempt portions were released. Ex. 3.

b. OPE redacted the body of an email dated August 19,

2010. The redacted information contained internal

discussions of potential hypothetical data scenarios and

potential Departmental responses thereto. The

information was therefore both predecisional (antecedent

to the adoption of an agency policy) and deliberative.

Further, public release of such information might

confuse and mislead the public, as it was based on

potential and hypothetical data scenarios that had not

occurred. The document was reviewed for segregability

and all non-exempt portions were released. Ex. 4.

12. In addition, OPE erroneously indicated that the

following information was redacted pursuant to FOIA

exemption (b) (5): two blocks of text in an email chain dated

Monday, July 26, 2010. The redacted information consists of

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internal communications about the location of particular data

on the Department's website. It was therefore not responsive

to the FOIA request and should have been redacted as

"nonresponsive." Ex. 5.

13. Between January 4 and January 18, 2010, all OPE

personnel identified in paragraph 7 above confirmed that a

search of all locations described above using the correct

spelling of the name "Asensio" returned no additional

responsive records.

I declare under penalty of perjury that the foregoing is true

and correct. Executed on ~\I~ , 2011.

~--,

Smith
Chief of Staff
Policy, Planning and Innovation
Office of Postsecondary Education
U.S. Department of Education