citizens .for.

respon~ibility
CREW I and ethics In washington

March 17, 2011

By facsimile: 202-395-3504

Dionne Hardy
FOIA Officer
Office of Management and Budget
725 17th Street, N.W. , Room 9026
Washington, D.C. 20503

Re: Freedom of Information Act Request

Dear Ms. Hardy:

Citizens for Responsibility and Ethics in Washington ("CREW") makes this request for
records, regardless of format, medium, or physical characteristics, and including electronic
records and information, audiotapes, videotapes and photographs, pursuant to the Freedom of
Information Act ("FOIA") , 5 U.S .C. §§ 552, et seq., and Office of Management and Budget
(" OMB") regulations, 5 C.F.R. Part 1303.

Specifically, CREW requests all documents from January 21, 2009 to the present related
to the U.S. Department of Education's proposed regulations governing the for-profit education
industry, which include what is sometimes referred to as "the gainful employment regulations."

Please search for responsive records regardless of format, medium, or physical

characteristics. Where possible, please produce records electronically, in PDF format with OCR
text recognition and on a CD-ROM. We seek records of any kind, including electronic records,
audiotapes, videotapes, and photographs. Our request includes any letters, emails, facsimiles ,
telephone messages, voice mail messages, and transcripts, notes, or minutes of any meetings,
telephone conversations, or discussions. Our request also includes any attachments to these
records.

For any email, please produce metadata and/or headers that show the email address of the
sender and any recipient in addition to their display name , the names and email addresses of any
"bee:" recipients, and any data regarding the time and date the email was sent, received, and/or
opened.

If it is your position that any portion of the requested records is exempt from disclosure,
CREW requests that you provide it with an index of those documents as required under Vaughn
v. Rosen, 484 F.2d 820 (D .C. Cir. 1973) , cert. denied, 415 U.S. 977 (1972). As you are aware , a
Vaughn index must describe each document claimed as exempt with sufficient specificity "to
permit a reasoned judgment as to whether the material is actually exempt under FOIA. "
Founding Church ofScientology v. Bell, 603 F.2d 945,949 (D .C. Cir. 1979). Moreover, the

1400 Eye Street, N.W. , Suite 450, Washington, D.C . 20005 I 202.408.5565 phone I 202.588.5020 fax I www.citizensforethics.org
Dionne Hardy
March 17,2011
Page 2

Vaughn index must "describe each document or portion thereof withheld, and for each
withholding it must discuss the consequences of supplying the sought-after information." King v.
Us. Dep 't ofJustice, 830 F.2d 210,223-24 (D.C. Cir. 1987) (emphasis added). Further, "the
withholding agency must supply 'a relatively detailed justification, specifically identifying the
reasons why a particular exemption is relevant and correlating those claims with the particular
part of a withheld document to which they apply.'" Id. at 224 (citing Mead Data Central v. Us.
Dep 't ofthe Air Force, 566 F.2d 242,251 (D.C. Cir. 1977)).

In the event some portions of the requested records are properly exempt from disclosure,
please disclose any reasonably segregable non-exempt portions of the requested records. See 5
U.S.c. § 552(b). If it is your position that a document contains non-exempt segments, but that
those non-exempt segments are so dispersed throughout the document as to make segregation
impossible, please state what portion of the document is non-exempt, and how the material is
dispersed throughout the document. Mead Data Central, 566 F.2d at 261. Claims of
nonsegregability must be made with the same degree of detail as required for claims of
exemptions in a Vaughn index. If a request is denied in whole, please state specifically that it is
not reasonable to segregate portions of the record for release.

Finally, CREW welcomes the opportunity to discuss with you whether and to what extent
this request can be narrowed or modified to better enable OMB to process it within the FOIA's
deadlines. Anne Weismann, the CREW attorney handling this matter, can be reached at (202)
408-5565 or aweismann@citizensforethics.org.

Fee Waiver Request

In accordance with 5 U.S.C. § 552(a)(4)(A)(iii) and 5 C.F.R. § 1303.50, CREW requests

a waiver of fees associated with processing this request for records. The subject of this request
concerns the operations of the federal government and expenditures, and the disclosures likely
will contribute to a better understanding of relevant government procedures by CREW and the
general public in a significant way. Moreover, the request is primarily and fundamentally for
non-commercial purposes. 5 U.S.C. § 552(a)(4)(A)(iii). See, e.g., McClellan Ecological v.
Carlucci, 835 F.2d 1282, 1285 (9th Cir. 1987).

Specifically, these records are likely to contribute to greater public awareness of OMB's
role in the promulgation of the Education regulations, and the extent to which OMB has
attempted to influence the direction of the proposed regulations, which have been highly
contentious and subject to claims of improper influence by outside interests, including Wall
Street investors seeking personal gain by shorting stocks in the for-profit education market.
Education has delayed issuing the gainful employment regulations purportedly to get "additional
feedback" to "help the department strike 'the right balance' between holding the programs
accountable to protect students and taxpayers, and 'making sure we keep whole those programs
 Dionne Hardy
March 17,2011
Page 3

that are doing a good job. '" Eric Gorski, Govt. Delays Rule Opposed By For-Profit Colleges,
Associated Press, Sept. 24, 2010 (Enclosed as Exhibit 1). The public is entitled to access
documents that would shed light on OMB's role in the development of Education's regulations
and policies in this arena.

CREW is a non-profit corporation, organized under section 501(c)(3) of the Internal

Revenue Code. CREW is committed to protecting the public's right to be aware of the activities
of government officials and to ensuring the integrity of those officials. CREW uses a
combination of research, litigation, and advocacy to advance its mission. The release of
information garnered through this request is not in CREW's financial interest. CREW will
analyze the information responsive to this request, and will share its analysis with the public,
either through memoranda, reports, or press releases. In addition, CREW will disseminate any
documents it acquires from this request to the public through its website,
vvww.citizensforethics.org, which also includes links to thousands of pages of documents CREW
acquired through its multiple FOIA requests as well as documents related to CREW's litigation
and agency complaints, and through www.scribd.com.

Under these circumstances, CREW satisfies fully the criteria for a fee waiver.

News Media Fee Waiver Request

CREW also asks that it not be charged search or review fees for this request because
CREW qualifies as a "representative of the news media" pursuant to the FOIA and OMB
regulation 5 C.F.R. § 1303.50. In Nat 'I Sec. Archive v. Us. Dep 't ofDefense, 880 F.2d 1381,
1386 (D.C. Cir. 1989), the Court of Appeals for the District of Columbia Circuit found the
National Security Archive was a representative of the news media under the FOIA, relying on the
FOIA's legislative history, which indicates the phrase "representative of the news media" is to be
interpreted broadly; "it is critical that the phrase 'representative of the news media' be broadly
interpreted if the act is to work as expected.... In fact, any person or organization which
regularly publishes or disseminates information to the public . . . should qualify for waivers as a
'representative ofthe news media. '" 132 Congo Rec. S14298 (daily ed. Sept. 30, 1986) (emphasis
added), cited in id.

CREW routinely and systematically disseminates information to the public in several

ways. First, CREW maintains a frequently visited website, www.citizensforethics.org, that
received 71,353 page views in February 2011. In addition, CREW posts all of the documents it
receives under the FOIA on www.scribd.com. and that site has received 660,525 visits to
CREW's documents since April 14,2010.

Second, since May 2007 CREW has published an online newsletter, CREWCuts, that
currently has 16,850 subscribers. CREWCuts provides subscribers with regular updates
Dionn e Hardy
March 17, 2011
Page 4

regarding CREW's activities and information the organization has received from government
entitie s. A complete archive of past CREWCuts is available at
http://www .citizensforethics.org/newsletter.

Third , CREW publi shes a blog, Citizens bloggingfor resp onsibility and ethics in
Washington, that report s on and analyzes newsworth y developments regarding government ethics
and corruption. The blog, located at http://www .citiznesforethics.org/blo g, also provides links
that direct readers to other news articl es and commentary on these issues. CREW ' s blog had
3,864 page views in February 20 11.

Finally, CREW has published numerous reports to educate the public about government
ethics and corruption. See Record Chaos, which examines agency compliance with electronic
record keepin g responsibilities; The Revolving Door, a comprehensive look into the post-
government activities of 24 form er membe rs of President Bush' s cabinet; and Those Who Dared:
30 Offi cials Who Stood Up For Our Country. These and all other CREW ' s report s are available
at http://www.citizensforethics.org/repOli s.

Based on these extensive publication activities, CREW qualifies for a fee waiver as a
"representative of the news media" under the FOIA and agency regulations.

Conclusion

If you have any questions about this request or foresee any problems in releasing fully the
requested records please contact me at (202) 408-5565 . Also, if CREW's request for a fee
waiver is not granted in full, please contact our office immedi ately upon making such a
determination. Please send the requ ested records to Anne L. Weismann, Citiz ens for
Responsibility and Ethics in Washington, 1400 Eye Street, N.W., Suite 450 , Washington, D.C.
20005.

Sincerely,

nne L. Weismann
Chief Counsel

Enclosures
EXHIBIT 1
 Page 1 of2

3 of 82 DOCUMENTS

The Associated Press

September 24, 2010 Friday 08:42 PM GMT

Govt. delays rule opposed by for-profit colleges

BYLINE: By ERIC GORSKI, AP Education Writer

SECTION: BUSINESS NEWS

LENGTH: 678 words

The U.S, Education Department said Friday it will take more time to finalize new regulations targeting for-profit college
job-training programs, but emphasized it was intent on moving forward and holding the sector accountable.

For-profit colleges have campaigned hard against the "gainful employment" rule, which would cut off federal aid to college
vocational programs with high student debt levels and poor loan repayment rates. They've lobbied Congress, purchased
newspaper ads and helped students and others register complaints with the Education Department.

The government was to publish the final rule by Nov. 1, but department officials announced a new timeline Friday, saying
sections of it would be ready by Nov. 1 and the remaining portions will be published in early 2011.

The department said it was taking more time to consider comments it received about 91,000 during a 90-day comment
period, a record for a proposed higher education regulation and hold several meetings and public hearings in the coming
weeks. The department said the schedule allows it to stick to its plan for the rules to go into effect around July 1,2012,

"Let me be clear: We're moving forward on gainful employment regulations," Education Secretary Arne Duncan said in a
statement. "While a majority of career colleges playa vital role in training our workforce to be globally competitive, some
bad actors are saddling students with debt they cannot afford in exchange for degrees and certificates they cannot use,"

Duncan said additional feedback would help the department strike "the right balance" between holding the programs
accountable to protect students and taxpayers and "making sure we keep whole those programs that are doing a good job."

Shares of for-profit education companies, beaten down earlier this year, had moved higher in the past few weeks. Rumors of
a delay in the gainful employment rule's publication had raised investor hopes that the government was considering a softer
approach, said Sterne Agee analyst Arvind Bhatia. Those investors were disappointed by the Education Department's
statement Friday, he said. Shares mostly turned lower or trimmed their gains after the announcement.

The gainful employment rule is the most contentious of several new regulations meant to bring greater oversight of for-profit
colleges, which rely heavily on federal loans and grants to operate.

In recent months, for-profit colleges have been subjected to tough questioning from Democratic lawmakers in Congressional
hearings, an undercover government investigation that alleged misleading and fraudulent tactics in recruiting and admissions,
and new data that showed their students are more likely to default on their loans.

Federal law already requires that vocational programs of less than two years "prepare students for gainful employment in a
recognized occupation" to be eligible for federal aid. The Education Department proposed measuring that through a
complicated formula that would weigh both the debt-to-income ratio of recent graduates and whether all enrolled students
repay their loans on time.

For-profit education companies have argued the rule would disproportionately hurt low-income and minority students and
undermine the Obama administration's college completion goals. The industry has also questioned the methodology behind
the rule.

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Student and consumer advocacy groups counter that the proposal is too weak, saying programs could continue to profit from
federal aid when more than half their students can't afford to pay down the principal on their loans. The rule would help, not
hurt, consumers if it forces career colleges to reduce tuition and improve their programs, they say.

The impact of the proposed rule is in dispute. The Education Department estimates that if schools make no changes, 5 percent
of for-profit college programs would be ineligible for aid in 2012 affecting 8 percent of all for-profit college students. For-
profit colleges say that underestimates the impact.

Associated Press Business Writer Tali Arbel contributed to this report,

LOAD-DATE: September 25,2010

LANGUAGE: ENGLISH

PUBLICATION-TYPE: Newswire

Copyright 2010 Associated Press

All Rights Reserved

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