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

Memorandum in opposition to re MOTION to Dismiss Claims One Through Four of Amended Complaint

D.D.C.October 29, 2007

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CITIZENS FOR RESPONSIBILITY AND : ETHICS IN WASHINGTON, : : : Plaintiff, : : v. : Civil Action No. 1:07-cv-00963 (RMU) : U.S. DEPARTMENT OF EDUCATION, : : MARGARET SPELLINGS, : SECRETARY OF EDUCATION : (in her official capacity), : : THE NATIONAL ARCHIVES AND : RECORDS ADMINISTRATION, : : DR. ALLEN WEINSTEIN, ARCHIVIST : OF THE UNITED STATES (in his : official capacity) : : Defendants. : ____________________________________: PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS CLAIMS ONE THROUGH FOUR OF THE AMENDED COMPLAINT The Department of Education (“Education”) repeatedly attempts to recast the version of events surrounding Citizens for Responsibility and Ethics in Washington’s (“CREW”) Complaint under the Federal Records Act (“FRA”) and the Freedom of Information Act (“FOIA”). Education employees twice told CREW’s counsel that they sometimes use private email addresses to conduct official business and that this issue had arisen in the past in the context of other FOIA requests. See Declaration of Dan Roth, CREW Counsel (“Roth Decl.”) at ¶ 9 (attached as Exhibit 1). CREW brought this lawsuit under the FRA after it was denied access to agency records that were created by agency employees using outside email accounts. Case 1:07-cv-00963-RMU Document 21 Filed 10/29/2007 Page 1 of 21 2 Before CREW filed its original Complaint against Education based on the agency’s violation of the FRA, CREW sent a letter to the Secretary of Education (“Secretary”), the National Archives and Records Administration (“NARA”) and the Archivist to put them on notice of Education’s FRA violations. Once it was clear to CREW that none of these parties was investigating or resolving Education’s violations of the FRA, CREW amended its Complaint to add these additional parties. In addition, after exhausting all of its administrative remedies under the FOIA, CREW amended its Complaint to include allegations under the FOIA, based on Education’s failure to respond fully to CREW’s FOIA request and failure to grant CREW its request for a fee waiver. CREW filed its original FOIA request in March 2007. Next, at the suggestion of Education, CREW participated in a conference call with employees of Education in May 2007, to discuss narrowing its request. Finally, in May 2007, CREW sent another FOIA request narrowing the items requested under its original March 28th FOIA. Despite CREW’s repeated attempts to narrow its FOIA request and despite the fact that it met the requirements under FOIA for a fee waiver, Education has continued to withhold documents responsive to CREW’s FOIA and has denied CREW a fee waiver. Defendants have now moved to dismiss claims one through four of CREW’s Amended Complaint, which includes the additional FRA counts against the Secretary, Archivist and NARA, arguing that plaintiff lacks standing to sue and the claims are not ripe for adjudication. Defendants also argue that CREW’s claim under the FOIA, based on Education’s failure to provide CREW the documents it requested, must be dismissed because it is not ripe for adjudication and fails to state a claim. Case 1:07-cv-00963-RMU Document 21 Filed 10/29/2007 Page 2 of 21 3 Contrary to defendants’ claims, CREW has been injured by the actions of Education in a manner recognized by the Court and therefore has standing under the FRA. Moreover, CREW is entitled to the records and fee waiver it requested in accordance with the FOIA - - which requires that agency records be made available upon a request that reasonably describes such records. Here, there is no doubt that CREW has submitted a FOIA request that reasonably describes the information being sought, and has also satisfied the elements required for a fee waiver. Under these circumstances defendants’ motion to dismiss must be denied. FACTUAL BACKGROUND On March 28, 2007, CREW sent a FOIA request to Education seeking records, regardless of format and including electronic records and information, of communications and other contacts concerning the Reading First program. Amended Complaint, ¶ 30 and Exhibit A to Roth Decl., ¶ 2. On April 16, 2007, Education sent CREW a letter acknowledging CREW’s FOIA request, enclosing a CD containing 421 pages of documents in response to item 4 of the FOIA request, seeking clarification for items 1 through 3 of the FOIA and denying CREW’s fee waiver request. Amended Complaint, ¶ 31 and Exhibit B to Roth Decl., ¶ 4. In its letter denying CREW’s fee waiver request, Education stated that CREW failed to show both that disclosure of the documents to CREW would contribute to the understanding of the public at large, because the public would be required to do its own analysis of the requested documents to reach any possible understanding of the information; and that CREW failed to show that the disclosure would contribute significantly to the public’s understanding of government operations, because certain information already existed in the public domain on Case 1:07-cv-00963-RMU Document 21 Filed 10/29/2007 Page 3 of 21 4 Reading First. Exhibit B to Roth Decl., ¶ 4. On May 9, 2007, CREW’s counsel participated in a conference call with Education about CREW’s FOIA request. Amended Complaint, ¶ 32 and Exhibit C to Roth Decl., ¶ 8. Education officials -- who included representatives from the agency’s FOIA office, its Office of the General Counsel and its Office of Elementary and Secondary Education -- advised CREW that the agency could not search for email pertaining to any particular subject matter without having the identity of a specific recipient or sender. Id. In addition, a Department official advised CREW that Education personnel “often use private email addresses” and that Education “wouldn’t have access to that.” Id. Education officials confirmed that agency personnel use private email accounts for official business and that this issue had arisen in the past in the context of other FOIA requests. Id. On May 11, 2007, CREW sent an email to Education appealing its denial of CREW’s fee waiver request. Amended Complaint, ¶ 33 and Exhibit D to Roth Decl., ¶ 14. CREW’s appeal explained that CREW’s request would contribute significantly to the public’s understanding of the issues involved because there were significant inconsistencies in the public record as to the involvement of Secretary Spellings in the administration of the Reading First program prior to her becoming Secretary of Education. Id. The records CREW was seeking would clarify the public record. Id. CREW’s letter further discussed Education’s denial of CREW’s fee waiver based on whether the information CREW was seeking would add to the public’s understanding of the administration of the Reading First program because the public would be required to do its own analysis of the requested documents. Id. CREW explained that its FOIA request stated that Case 1:07-cv-00963-RMU Document 21 Filed 10/29/2007 Page 4 of 21 5 CREW would analyze the information responsive to its request, and would likely share its analysis with the public, either through memoranda, reports or press releases. Amended Complaint, ¶ 33 and Exhibit D to Roth Decl., ¶ 14. In a follow-up telephone call on May 14, 2007, an Education FOIA officer confirmed to CREW’s counsel that Education employees sometimes use private email addresses to conduct official business, that such material would not be included in the agency’s response to CREW’s FOIA request and that this issue had come up in the past. Amended Complaint, ¶ 34 and Roth Decl., ¶ 15. In light of this information, CREW sent a letter to Education’s Inspector General dated May 15, 2007, requesting that he commence an immediate investigation “to assess the extent and duration” of Education’s practice of using outside email accounts to conduct official business, “the amount of official correspondence that has been lost or destroyed, and the effect of this practice on all records requests to the Department of Education.” Amended Complaint, ¶ 35 and Exhibit C to Roth Decl., ¶ 17. CREW’s May 15 letter also pointed out that in addition to CREW’s FOIA request, reporters have also been requesting agency documents under the FOIA, as has Rep. George Miller, Chairman of the House Committee on Education and Labor. Amended Complaint, ¶ 36. On May 21, 2007, CREW sent an email to Education narrowing its FOIA request in order to aid Education in its search for records responsive to the request. Amended Complaint, ¶ 37 and Exhibit E to Roth Decl., ¶ 18-21. The narrowed FOIA request revised the scope of Item 1 from the entire Department to a list of 14 of the 33 offices listed on Education’s online Coordinating Structure Chart. Id. Case 1:07-cv-00963-RMU Document 21 Filed 10/29/2007 Page 5 of 21 6 In addition, request Item 1 sought records mentioning or relating to several enumerated reading programs and terms and “any other issue related to reading instruction or education.” Id. In response to concerns raised by Education officials during the May 9, 2007 conference call, CREW narrowed this item further by deleting that phrase and replacing it with records related to “Early Reading First” and “Science-Based Reading Research.” Id. Finally, CREW narrowed Items 2 and 3 of CREW’s FOIA request from contacts with and regarding all educational publishers to an enumerated list of seven publishers. Id. On May 23, 2007, CREW sent a letter to Secretary Spellings advising her that it had filed a lawsuit against the Department of Education challenging the failure of the agency to preserve copies of electronic records of official Education business created by agency employees through the use of non-governmental email accounts. Amended Complaint, ¶ 38. CREW further requested that Secretary Spellings, with the assistance of the Archivist, initiate action to prevent the further removal or destruction of the electronic records. Id. On June 8, 2007, Education sent CREW a letter responding to CREW’s May 11, 2007 email appealing Education’s initial denial of CREW’s request for a fee waiver. Amended Complaint, ¶ 40 and Exhibit F to Roth Decl., ¶ 23. In its letter, Education affirmed its denial of CREW’s request for a fee waiver. Id. Specifically, Education stated that its fee waiver denial was based on its conclusion that many of the records responsive to CREW’s request had nothing to do with the Reading First program, and disclosure of those materials would not enhance public understanding of Education’s administration of the program. Id. Education’s June 8, 2007 fee waiver denial also based its decision on its finding that CREW failed to identify and provide examples of the significant inconsistencies in the public Case 1:07-cv-00963-RMU Document 21 Filed 10/29/2007 Page 6 of 21 7 record with respect to Secretary Spellings’ involvement in Reading First prior to her tenure as Secretary. Id. On June 21, 2007, CREW sent Education another letter appealing Education’s denial of CREW’s fee waiver request. Amended Complaint, ¶ 41, Exhibit G to Roth Decl. ¶ 23. CREW’s letter outlined all of the previous communications between it and Education, including CREW’s narrowing of its FOIA request. The letter also discussed, in detail, how CREW satisfied the two-prong statutory test for a fee waiver. Id. First, CREW reiterated to Education that it had narrowed its request and now sought a smaller category of documents that specifically related to the Reading First Program. Id. Second, and in response to Education’s contention that it failed to identify and provide examples of the inconsistencies in the public record with respect to Secretary Spellings, CREW explained that Exhibit 1 to its original FOIA request contained documents that highlighted some of the inconsistencies. Id. CREW also listed additional examples of the serious inconsistencies in its June 21, 2007 letter. Id. Finally, CREW answered Education’s contention - - and use of three internet links to make this point - - that information about the agency’s contacts with educational publishers had already been examined in the public sphere. Amended Complaint, ¶ 41, Exhibit G to Roth Decl. ¶ 23. CREW pointed out that one of the links the agency provided was expired and the second and third links focused on a report that was categorically different and distinct from the information CREW was seeking in its FOIA request. Id. On August 23, 2007, Education sent a letter responding to CREW’s May 11, 2007 email that narrowed its original FOIA request. Amended Complaint, ¶ 42 and Exhibit H. Education’s Case 1:07-cv-00963-RMU Document 21 Filed 10/29/2007 Page 7 of 21 8 letter once again stated that CREW’s narrowed FOIA request failed to identify the Department officials whose communications were sought, failed to identify a specific program or specific subject matter focus for the Department’s search and that the time period identified in the request predated the legislation that is the subjection of the request. Id. On September 6, 2007, Education affirmed its denial of CREW’s second fee waiver appeal of June 21, 2007. Amended Complaint, ¶ 43 and Exhibit I. Education’s letter stated that CREW had failed to meet its burden with respect to the public interest prong of the fee waiver test because its FOIA request was “overbroad to qualify for a fee waiver;” that the FOIA request would not significantly enhance public understanding relative to the inconsistencies in the public record; and that the information CREW is seeking would not likely contribute significantly to the public’s understanding of the extent to which publishers were in contact with Education and Administration personnel during the Reading First development and grant process. Id. STATUTORY BACKGROUND The Federal Records Act The FRA is a series of statutes that govern the creation, management and disposal of federal records. See 44 U.S.C. §§ 2101-2118, 3101-3107 and 3301-3324. Among other things, the FRA ensures “[a]ccurate and complete documentation of the policies and transactions of the Federal Government,” as well as “judicious preservation and disposal of records.” 44 U.S.C. § 2902. To fulfill this purpose, the FRA requires the head of each agency to “make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency.” Id. at § 3101. Under the Case 1:07-cv-00963-RMU Document 21 Filed 10/29/2007 Page 8 of 21 9 statute, each agency must also “establish and maintain an active, continuing program for the economical and efficient management of the records of the agency,” id. at § 3102, and must “establish safeguards against the removal or loss of records” the agency head determines are necessary and required by regulations of the Archivist. Id. at § 3105. The FRA also prescribes the exclusive mechanism for the disposal of federal records, which it defines to include: all books, papers, maps, photographs, machine readable materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency . . as evidence of the organization, functions, policies, decisions, procedures operations, or other activities of the Government or because of the informational value of data in them. 44 U.S.C. § 3301. No records may be “alienated or destroyed” except pursuant to the disposal provisions of the FRA. Id. at § 3314. An agency wishing to dispose of records must first submit to the archivist either lists of records the agency head determines “are not needed by it in the transaction of its current business,” 44 U.S.C. § 303a(2), or “schedules proposing the disposal after the lapse of specified periods of time of records of a specified form or character” that the agency head determines will not have “sufficient administrative, legal, research, or other value to warrant their further preservation by the Government.” Id. at § 3303a(3). Upon receipt of such a request, the archivist must issue a notice requesting public comment on the agency’s proposal and the archivists’s staff must conduct its own assessment of the value of the records the agency is proposing to destroy. Id. at § 3303a(a). The archivist is free to accept or reject an agency’s Case 1:07-cv-00963-RMU Document 21 Filed 10/29/2007 Page 9 of 21 10 proposal. Id. The Freedom of Information Act The FOIA, 5 U.S.C. § 552, requires agencies of the federal government to release requested records to the public unless one or more specific statutory exemptions apply. An agency must respond to a party making a FOIA request within 20 working days, notifying that party of at least the agency’s determination whether or not to fulfill the request, and of the requester’s right to appeal the agency’s determination to the agency head. 5 U.S.C. § 552(a)(6)(A)(I). An agency must respond to a FOIA appeal within 20 working days, notifying the appealing party of the agency’s determination to either release the withheld records or uphold the denial. 5 U.S.C. § 552(a)(6)(A)(ii). This Court has jurisdiction, upon receipt of a complaint, “to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B). The FOIA also requires each agency to promulgate regulations specifying a fee schedule for the processing of FOIA requests and establishing procedures and guidelines for the waiver or reduction of fees. 5 U.S.C. § 552(a)(4)(A). Defendant Education’s fee waiver regulations are found at 34 CFR § 5.64. Both the FOIA and Education regulations provide that documents should be produced at no charge to the requester or at a reduced charge if “disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.” 5 U.S.C. § 552(a)(4)(A)(iii); 34 CFR § 5.64(a). Case 1:07-cv-00963-RMU Document 21 Filed 10/29/2007 Page 10 of 21 11 ARGUMENT I. CREW HAS STANDING TO BRING THIS FRA LAWSUIT AGAINST THE SECRETARY OF EDUCATION, THE ARCHIVIST AND NARA CHALLENGING THEIR FAILURE TO TAKE ENFORCEMENT ACTION TO ENSURE ADEQUATE PRESERVATION OF ALL AGENCY RECORDS. CREW’s standing to sue rests on an “an injury-in-fact that is “fairly traceable” to the challenged act and “likely to be redressed by the requested relief.” Allen v. Wright, 468 U.S. 737, 751 (1984); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). CREW’s injury, an inability to obtain through the FOIA information necessary to accomplish CREW’s mission, is directly traceable to Education’s improper document retention procedures and the failure of the Secretary, Archivist and NARA to take enforcement action to ensure adequate preservation of Education’s records. This is all that Article III of the Constitution requires. A. Plaintiff’s Injury is Sufficient to Confer Standing CREW has met its burden of establishing an injury-in-fact for Article III purposes. CREW is an organization dedicated to informing and educating the public about the conduct of public officials. Toward that end, CREW uses the FOIA to gather relevant information. Here, CREW filed a FOIA request with Education for documents that would reflect, among other things, the degree to which the Reading First Program has been influenced by political and other outside interests. Education’s policy of knowingly permitting agency employees to use outside email accounts when conducting agency business deprived CREW of access to documents responsive to its FOIA request but not maintained by Education because they were not stored on agency servers. CREW also put the Secretary, Archivist and NARA on notice of Education’s refusal to comply with the requirements of the FRA when it sent them a letter on May 23, 2007, advising them of these practices. Amended Complaint, ¶ 38. Case 1:07-cv-00963-RMU Document 21 Filed 10/29/2007 Page 11 of 21 1As noted in its complaint, CREW uses a combination of research, litigation, advocacy and public education to expose unethical and illegal conduct by those involved in government. Complaint ¶ 4. CREW has been “harmed by Education’s failure to comply with the FRA because that failure has denied CREW access to documents that are a critical part of the record concerning the Reading First Program.” Id. at ¶ 24. 12 Because of Education’s record-keeping policies, CREW was frustrated in achieving its mission when it sought and was denied the requested information. Defendant’s refusal to comply with the requirements of the FRA has hindered CREW’s ability to report and publish information in furtherance of its programmatic activities.1 Compare Spann v. Colonial Village, Inc., 899 F.2d 24, 27 (D.C. Cir. 1990) (“if an organization points to a concrete and demonstrable injury to its activities . . .the organization passes through the first [standing] gateway”). Article III requires nothing more. Additionally, the refusal of the Secretary, Archivist and NARA to initiate enforcement action to prevent Education’s continued non-compliance of the requirements of the FRA, further frustrates CREW’s mission and programmatic activities. In arguing to the contrary, defendant misapplies American Friends Service Committee v. Webster, 720 F.2d 29, 46 (D.C. Cir. 1983), and mis-characterizes CREW as like those plaintiffs the Webster Court found were “questionable” for standing purposes. In Webster, various individuals and organizations challenged the FBI’s records destruction program as contrary to law, including the FRA. Id. The Court in Webster recognized three categories of plaintiffs: (1) a group that included individuals and organizations whose need for documents arose out of their professions, and “had in the past made FOIA requests . . . had other requests pending, and intended to request FBI files in the future”; (2) a group that consisted of individuals who were subjects of FBI investigations or alleged victims of FBI activities; and (3) a group that included organizations seeking to further civil liberties and civil rights who argued that the destruction of Case 1:07-cv-00963-RMU Document 21 Filed 10/29/2007 Page 12 of 21 13 the documents deprived them of research materials that they could disseminate. Id. Here, Education argues that CREW is most analogous to this third group of plaintiffs. Unlike this group, however, CREW has made FOIA requests in the past, has FOIA requests pending with Education, and intends to request documents in the future. This distinction makes CREW like the first group of Webster plaintiffs and dictates here, as in Webster, that CREW has standing to bring this FRA lawsuit. Like that group, CREW uses the documents it seeks through its FOIA requests, not for political purposes, but to share information with the public through memoranda, reports, or press releases. See Armstrong v. Bush, 924 F.2d 282, 288 (D.C. Cir. 1991) (finding plaintiffs that were researchers and historians who made extensive use of government documents were within the zone of interests of the records creation and management provisions of the FRA). For example, on June 27, 2007, CREW released a report, The Best Laid Plans: The Story of How the Government Ignored its own Gulf Coast Hurricane Plan, about the problems with the federal government’s response to Hurricane Katrina victims that relied significantly on documents CREW obtained through a FOIA request to the Department of State. CREW has used and will continue to use the FOIA to gain access to agency records that relate to the propriety of government activity. By adopting a policy whereby Education employees use outside email accounts to conduct official business with the knowledge that electronic records created as a result of that use were and continue to be sought under the FOIA, Education has denied CREW access to requested records. This policy is arbitrary, capricious, and contrary to law because it results in the failure to preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures and essential transactions of the agency. 44 U.S.C. § 3101. And for any future request, CREW is at the Case 1:07-cv-00963-RMU Document 21 Filed 10/29/2007 Page 13 of 21 14 complete mercy of Education’s document policy. To the extent Webster left open whether the kind of injury plaintiff has suffered here is sufficient for Article III standing purposes, as defendants suggest, post-Webster cases make clear that denial of information constitutes an injury-in-fact. So, for example, in Federal Election Comm’n v. Atkins, 524 U.S. 11 (1998), the Supreme Court found that a plaintiff had standing to challenge the Commission’s refusal to disclose campaign-related contributions and expenditures as the Federal Election Campaign Act requires, reasoning that informational harm is sufficiently concrete and specific to constitute an injury-in-fact. Likewise, in Public Citizen v. Dep’t of Justice, 491 U.S. 440 (1989), the Supreme Court recognized that denial of access to committee meetings and records under the Federal Advisory Committee Act constituted an injury-in-fact for Article III purposes. And, in Dep’t of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989), a suit under the FOIA challenging the agency’s denial of a request for specific agency records, standing was satisfied by the denial of requested records. As a frequent FOIA user, CREW’s interests are also within the zone-of-interests of the FRA. CREW has used and will continue to use the FOIA to gain access to agency records that relate to the propriety of government activity. By adopting a policy whereby Education records are not adequately preserved, the defendants have denied CREW access to requested records. This policy is arbitrary, capricious, and contrary to law because it results in the failure to preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures and essential transactions of the agency. 44 U.S.C. § 3101. Moreover, the information sought by CREW has an undeniable effect upon CREW’s ability to inform and educate the public, which it does on a continuing, ongoing basis. See Armstrong, Case 1:07-cv-00963-RMU Document 21 Filed 10/29/2007 Page 14 of 21 15 924 F.2d at 288 (plaintiff researchers and historians who made extensive use of government documents were within the zone-of-interests of the records creation and management provisions of the FRA). In sum, CREW’s inability to obtain information it seeks through its FOIA request for Education documents has led and will continue to lead to “concrete damage” to CREW’s mission. Through this impairment, CREW has met its burden of establishing an injury-in-fact for Article III standing purposes. B. CREW’s Injury is Traceable to Defendant’s Practices under the FRA CREW’s claims of injury are neither speculative nor hypothetical. In March 2007, CREW requested documents under the FOIA pertaining to Education’s Reading First program and also sought a waiver of the fees associated with its request. In response to its FOIA and fee waiver requests, Education released to CREW a CD containing 421 pages of documents responsive to item four of the FOIA. Education, however, has refused to respond to the remaining items requested in CREW’s FOIA based on the dubious argument that it needs clarification of the information CREW is seeking. Roth Decl. at ¶ 7. Moreover, despite CREW’s May 11th and May 21st appeals which clearly outlined the required elements for a fee waiver, Education has continued to deny CREW’s request for a fee waiver, based on its misguided assumption that the disclosure of the information CREW requested would not contribute to the understanding of the public at large and because it believes that the disclosure of the information will not contribute significantly to the public understanding of government operations or activities. Although CREW sufficiently satisfied the required elements for a fee waiver in both of Case 1:07-cv-00963-RMU Document 21 Filed 10/29/2007 Page 15 of 21 2CREW’s narrowed May 21, 2007 FOIA request was not only sufficiently detailed, but it reasonably describes the information being sought: Any and all documents and records from January 20, 2001, to the present, in the offices of: 1) The Secretary, 2) Senior Counselor, 3) Chief of Staff, 4) Deputy Secretary, 5) Management Improvement Team, 6) Elementary and Secondary Education, 7) Institute of Education Sciences, 8) Planning Evaluation and Policy Development, 9) Civil Rights, 10) Innovation and Improvement, 11) Special Education and Rehabilitative Services, 12) Management, 13) Chief Financial Officer and 14) Communications and Outreach, in the following categories: 1. All communications of the above-listed offices to, from, or referencing any member of the White House staff, including, but not limited to, then-Domestic Policy Advisor Margaret Spellings or Margaret LaMontagne, that mention or relate to Reading First, Early Reading First, “Scientifically Based Reading Research”/”Science Based Reading Research”/”SBRR” or DIBELS. 2. All communications of the above-listed offices, including calendar references and meeting notes, with the executives, employees, consultants, or contractors of the following educational publishers: Houghton Mifflin (including, but not limited to, Maureen DiMarco), SRA/McGraw Hill, Pearson Scott Foresman, Voyager (including, but not limited to, Randy Best), Cambium Learning, Sopris West, and Intellitools. 3. All communications of the above-listed offices, including calendar references and 16 its appeals, Education refuses to grant CREW a fee waiver, and now bases its Motion to Dismiss on its own conduct, not CREW’s conduct. The defendants, however, cannot defeat CREW’s standing by unilaterally declaring CREW’s request insufficient, particularly where their characterization defies the facts and commonsense. Education continues to argue that it is unable to respond to CREW’s FOIA request because CREW failed to clarify the request. CREW, however, attempted to narrow the scope of its FOIA, but to no avail. First, CREW’s request for documents is sufficiently clear. It is the conduct of Education that is deficient in failing to come to terms with CREW’s FOIA request as written and clarified. Each of the issues that Education outlined during the parties’ teleconference and in writing regarding the broad nature of CREW’s FOIA request were addressed in CREW’s narrowed request of May 21, 2007.2 Despite CREW’s narrowed request that addresses these issues, the Case 1:07-cv-00963-RMU Document 21 Filed 10/29/2007 Page 16 of 21 meeting notes, that mention or related to contacts with the executives, employees, consultants, or contractors of the following educational publishers: Houghton Mifflin (including, but not limited to, Maureen DiMarco), SRA/McGraw Hill, Pearson Scott Foresman, Voyager (including, but not limited to, Randy Best), Cambium Learning, Sopris West, and Intellitools. 17 agency continues to claim that CREW has failed to identify the Education officials whose communications are sought, even though CREW’s May 21st FOIA specifically requested the communications between 14 of the 33 offices listed on Education’s online Coordinating Structure Chart and then-Domestic Policy Advisor Margaret Spellings or Margaret LaMontagne. Moreover, even though CREW’s FOIA is for records related specifically to the Reading First, Early Reading First, Scientifically Based Reading Research/Science Based Reading Research/SBRR or DIBELS programs, Education continues to argue that CREW’s FOIA request fails to identify a specific program or a specific subject matter focus for the agency’s search for responsive records. Education is unable to meet its burden of justifying its continued withholding of the information requested by CREW. In FOIA lawsuits, it is the defendant agency that bears the burden of justifying its withholding of requested information under the FOIA, and Education has failed here to meets this burden. LaRouche v. U.S. Dep’t. of Justice, 2001 U.S. Dist. LEXIS 25416 (D.D.C. 2001) (In order to justify the adequacy of its search the agency must prove that “each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt for the Act’s inspection requirements.”). Education has failed to justify its withholding of the remaining items requested in CREW’s narrowed FOIA of May 21, 2007. Second, because CREW is entitled to a fee waiver, Education’s continued denial of CREW’s request for a fee waiver actually reinforces CREW’s injury-in-fact standing argument Case 1:07-cv-00963-RMU Document 21 Filed 10/29/2007 Page 17 of 21 18 under Article III. Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 35 (finding fault with analysis used by agency to award partial fee waiver). As the record makes clear, CREW repeatedly met the requirements for a fee waiver and answered the questions raised by Education - - whether the disclosure of the documents would contribute to the understanding of the public at large, and whether the disclosure would contribute significantly to the public’s understanding of government operations. CREW explained that the documents it sought would contribute significantly to the public’s understanding of the issues involved because of the significant inconsistencies in the public record as to the involvement of Secretary Spellings in the administration of the highly controversial Reading First program. Moreover, the documents CREW is seeking would add to the public’s understanding of the administration of the Reading First program because CREW would analyze the information responsive to its request, and would share its analysis with the public, either through memoranda, reports or press releases. Under these circumstances, plaintiff’s injury is traceable exclusively to defendant’s refusal to grant plaintiff a fee waiver and to release to plaintiff its requested records. II. CREW’s FRA AND FOIA CLAIMS ARE RIPE FOR ADJUDICATION Finally, Education argues that CREW’s claims are so “shapeless” as to be unripe. Defendant’s Motion to Dismiss Claims One through Four of the Amended Complaint at 18-23. To the contrary, CREW has alleged sufficient facts within its Complaint for the Court to make an informed decision about Education’s violation of the FRA. These allegations regarding Education’s arbitrary, capricious and illegal policy relate to agency employees’ use of outside email accounts to conduct official business with the result that Education is not preserving Case 1:07-cv-00963-RMU Document 21 Filed 10/29/2007 Page 18 of 21 19 agency records. See Amended Complaint, ¶¶ 33-35, 38. As such, CREW’s claims are not based on “contingent future events that may not occur as anticipated, or indeed may not occur at all,” nor are they based on some “abstract disagreements” of policy. See Worth v. Jackson, 451 F.3d 854, 861 (D.C. Cir. 2006). Rather, the allegations in CREW’s Complaint, which are detailed and specific enough for the Court to ascertain the contours for purposes of judicial review, are based on Education’s articulated policy and its inability to produce documents responsive to CREW’s FOIA as a direct result of that policy. Moreover, the unresolved nature of the fee waiver issue does not deem CREW’s claim that Education has failed to produce responsive records under the FOIA premature. Education, without resolution of the fee waiver issue, has already produced over 400 documents to CREW. Moreover, even though Education informed CREW of the requirement of prepayment of fees exceeding $250 because of the broad scope of CREW’s FOIA request, Education has never informed CREW of the ultimate cost of producing the documents for CREW. CREW’s last appeal regarding the fee waiver issue was on June 21, 2007. In this appeal, CREW included a packet of information that outlined the required elements for a fee waiver and included exhibits. Education did not respond to CREW’s final appeal until September 6, 2007, and never once informed CREW what the cost would be for the search and production of the documents at issue. Instead, it merely concluded that CREW’s appeal and Education’s response constituted exhaustion of the administrative remedies available to CREW under FOIA, and informed CREW that it had the right to seek judicial review of the decision. Therefore, CREW’s claims under the FRA and the FOIA are ripe for adjudication. Case 1:07-cv-00963-RMU Document 21 Filed 10/29/2007 Page 19 of 21 20 III. PLAINTIFF’S CLAIMS ONE THROUGH FOUR STATE CLAIMS UNDER THE FRA AND THE FOIA In order for a Court to grant a motion under Rule 12(b)(6) of the Federal Rules of Civil Procedure, it should accept the allegations of the complaint as true, draw all inferences in the plaintiff's favor, and affirm only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Croixland Properties Ltd. P'ship v. Corcoran, 174 F.3d 213, 215 (D.C. Cir. 1999). The Court will, therefore, look to whether the plaintiff can prove any set of facts consistent with the allegations in its complaint that will entitle it to relief. Id. The FRA requires that the head of each agency “make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency.” 44 U.S.C. § 3101. The FOIA provides that each agency shall make its records promptly available upon request. 5 U.S.C. § 552(a)(3)(A). Here, CREW has alleged in its Amended Complaint the necessary facts to state claims under these statutes, specifically that it was denied access to agency records it requested under the FOIA that were created by agency employees using outside email accounts, and that the defendants knew employees were using outside email accounts but took no action to ensure appropriate preservation of all agency records. These facts alone are sufficient to state claims for relief under the FRA and the FOIA. CREW, however, has gone beyond these facts to provide additional facts within its Complaint of its attempt to work with Education to not only clarify and narrow its FOIA request, but also resolve any outstanding issues related to its request for a fee waiver. Amended Complaint, ¶¶ 32-34, 37, 41. Looking at the totality of CREW’s complaint it is clear that any deficiencies are those of Case 1:07-cv-00963-RMU Document 21 Filed 10/29/2007 Page 20 of 21 21 the defendants and their near complete failure to comply with their statutory obligations under the FOIA and FRA. It necessarily follows that defendants’ motion to dismiss for failure to state a claim must be denied. CONCLUSION For the foregoing reasons, CREW respectfully requests that the Court deny defendants’ motion to dismiss. Respectfully submitted, /s Anne L. Weismann (D.C. Bar No. 298190) Kimberly D. Perkins (D.C. Bar No. 481460) Melanie Sloan (D.C. Bar No. 434584) Citizens for Responsibility and Ethics In Washington 1400 Eye Street, N.W., Suite 450 Washington, D.C. 20005 Phone: (202) 408-5565 Attorneys for Plaintiff Dated: October 29, 2007 Case 1:07-cv-00963-RMU Document 21 Filed 10/29/2007 Page 21 of 21 Case 1:07-cv-00963-RMU Document 21-2 Filed 10/29/2007 Page 1 of 8 Case 1:07-cv-00963-RMU Document 21-2 Filed 10/29/2007 Page 2 of 8 Case 1:07-cv-00963-RMU Document 21-2 Filed 10/29/2007 Page 3 of 8 Case 1:07-cv-00963-RMU Document 21-2 Filed 10/29/2007 Page 4 of 8 Case 1:07-cv-00963-RMU Document 21-2 Filed 10/29/2007 Page 5 of 8 Case 1:07-cv-00963-RMU Document 21-2 Filed 10/29/2007 Page 6 of 8 Case 1:07-cv-00963-RMU Document 21-2 Filed 10/29/2007 Page 7 of 8 Case 1:07-cv-00963-RMU Document 21-2 Filed 10/29/2007 Page 8 of 8 Case 1:07-cv-00963-RMU Document 21-3 Filed 10/29/2007 Page 1 of 21 Case 1:07-cv-00963-RMU Document 21-3 Filed 10/29/2007 Page 2 of 21 Case 1:07-cv-00963-RMU Document 21-3 Filed 10/29/2007 Page 3 of 21 Case 1:07-cv-00963-RMU Document 21-3 Filed 10/29/2007 Page 4 of 21 Case 1:07-cv-00963-RMU Document 21-3 Filed 10/29/2007 Page 5 of 21 Case 1:07-cv-00963-RMU Document 21-3 Filed 10/29/2007 Page 6 of 21 Case 1:07-cv-00963-RMU Document 21-3 Filed 10/29/2007 Page 7 of 21 Case 1:07-cv-00963-RMU Document 21-3 Filed 10/29/2007 Page 8 of 21 Case 1:07-cv-00963-RMU Document 21-3 Filed 10/29/2007 Page 9 of 21 Case 1:07-cv-00963-RMU Document 21-3 Filed 10/29/2007 Page 10 of 21 Case 1:07-cv-00963-RMU Document 21-3 Filed 10/29/2007 Page 11 of 21 Case 1:07-cv-00963-RMU Document 21-3 Filed 10/29/2007 Page 12 of 21 Case 1:07-cv-00963-RMU Document 21-3 Filed 10/29/2007 Page 13 of 21 Case 1:07-cv-00963-RMU Document 21-3 Filed 10/29/2007 Page 14 of 21 Case 1:07-cv-00963-RMU Document 21-3 Filed 10/29/2007 Page 15 of 21 Case 1:07-cv-00963-RMU Document 21-3 Filed 10/29/2007 Page 16 of 21 Case 1:07-cv-00963-RMU Document 21-3 Filed 10/29/2007 Page 17 of 21 Case 1:07-cv-00963-RMU Document 21-3 Filed 10/29/2007 Page 18 of 21 Case 1:07-cv-00963-RMU Document 21-3 Filed 10/29/2007 Page 19 of 21 Case 1:07-cv-00963-RMU Document 21-3 Filed 10/29/2007 Page 20 of 21 Case 1:07-cv-00963-RMU Document 21-3 Filed 10/29/2007 Page 21 of 21 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CITIZENS FOR RESPONSIBILITY AND : ETHICS IN WASHINGTON, : : : Plaintiff, : : v. : Civil Action No. 1:07-cv-00963 (RMU) : U.S. DEPARTMENT OF EDUCATION, : : MARGARET SPELLINGS, : SECRETARY OF EDUCATION : (in her official capacity), : : THE NATIONAL ARCHIVES AND : RECORDS ADMINISTRATION, : : DR. ALLEN WEINSTEIN, ARCHIVIST : OF THE UNITED STATES (in his : official capacity) : : Defendants. : : ____________________________________: [PROPOSED] ORDER Upon consideration of Defendants’ Motion to Dismiss Claims One through Four of Plaintiff’s Amended Complaint, Plaintiff’s Opposition thereto and the entire record herein, and for the reasons explained in the Memorandum Opinion issued on this date, it is hereby ORDERED that Defendants’ motion to dismiss be, and hereby is, DENIED. Dated: ___________ ___________________________ RICARDO M. URBINA United States District Court Judge Case 1:07-cv-00963-RMU Document 21-4 Filed 10/29/2007 Page 1 of 1