Case 1:17-cv-01247-TSC Document 16 Filed 10/27/17 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
)
)
Plaintiff, )
)
v.
)
)
U.S. DEPARTMENT OF EDUCATION,
)
)
Defendant. )
)
AMERICAN OVERSIGHT,

Case No. 17-1247 (TSC)

PLAINTIFF’S STATUS REPORT AND PROPOSED SCHEDULE
Plaintiff, by and through undersigned counsel, respectfully submits the following status
report and proposed schedule pursuant to the Court’s order dated October 6, 2017. That order
required the parties to file a joint status report by October 27, 2017. For the reasons described
herein, despite diligent and good faith efforts, Plaintiff has been unable to engage successfully
with Defendants in the process of preparing a joint status report or proposed schedule. In an
effort to comply with the Court’s order, Plaintiff respectfully submits this status report and
proposed schedule and requests that the Court intervene to facilitate the progression and ultimate
conclusion of this matter.
Despite Diligent Effort, Plaintiff Has Been Unable to Meet and Confer with
Defendant or to Obtain Necessary Information From Defendant
1.

Plaintiff filed its complaint initiating the present lawsuit on June 26, 2017.

2.

On July 26, 2017, counsel for Defendant contacted Plaintiff to request an

extension of more than five weeks, until September 8, 2017, to file its answer to Plaintiff’s
complaint. As an accommodation to Defendant, Plaintiff agreed to consent to the extension if
Defendant committed to make an initial production prior to September 8, 2017, and also agreed

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to provide Plaintiff with an update by September 8, 2017, on (a) the status of Education’s search;
(b) when Education anticipated completing its search; (c) how the search was conducted; (d) the
volume of potentially responsive material being reviewed for potential production; and (e) the
general rate at which Education anticipated making rolling productions. Defendant agreed to
these conditions for Plaintiff’s consent to the extension by telephone, and Plaintiff memorialized
that agreement in an email sent July 26, 2017. Plaintiff sought this information regarding the
search because in other matters Plaintiff has been able to work with defendant agencies to
successfully negotiate resolutions regarding questions or concerns Plaintiff had regarding the
search for records responsive to its FOIA requests, thereby narrowing the issues before the Court
and lessening the burdens on both parties.
3.

Defendant made an initial production of documents on August 23, 2017,

satisfying the first element of the parties’ agreement. Defendant did not, however, provide the
information about Education’s search methods and progress or its anticipated production
timeline. Instead, Defendant contacted Plaintiff the evening of September 6—two days before
the Court’s answer deadline and the parties’ agreed-upon deadline for exchanging information
about Education’s searches—to request an additional extension to file its answer. Plaintiff
promptly returned Defendants’ call the following morning and left a voicemail and sent an email
providing Plaintiff’s availability for a call that day to discuss Education’s search methods and
progress and production status and plans, as required by the parties’ agreement. Later that day,
Plaintiff and Defendant’s counsel spoke by telephone, at which time counsel indicated difficulty
obtaining information regarding the search(es) run, the volume of material identified for
responsiveness review, and whether any searches remained incomplete or outstanding.
Defendant requested an additional month to file its answer. As a further accommodation to

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Education—and notwithstanding Education’s failure to abide by the parties’ July 26, 2017
agreement—Plaintiff consented to an additional week-long extension for the answer but
informed Education that it would consider consenting to further extensions only if Education
made progress in providing the information promised in July.
4.

On September 12, 2017, Defendant made a supplemental production. The

following day, a paralegal called on behalf of Defendant’s counsel to confirm Plaintiff’s receipt
of the production. The paralegal indicated that three calendars Plaintiff had requested were under
review by the White House Counsel’s Office and conveyed Defendant’s counsel’s request for an
additional three-week extension to file the answer. Later that day, Plaintiff spoke with
Defendant’s counsel, who indicated that production would be complete the following week, apart
from the three files under White House Counsel review. Defendant’s counsel, however, would
not provide Plaintiff with any information regarding the searches that had been conducted,
whether any searches were outstanding, or the contents or nature of forthcoming productions—
even though Plaintiff explained that this information would be necessary to determine whether it
would agree with Defendant’s position that production was complete. Plaintiff advised
Defendant’s counsel that, in light of Defendant’s ongoing failure to provide information it had
first promised nearly two months earlier, Plaintiff would not consent to a further extension.
5.

On September 15, 2017, Defendant filed a motion for an extension of the deadline

to answer to the complaint. That motion included information both on records that had been
produced and on remaining records Education anticipated producing, along with the timeline for
producing those records. Despite Plaintiff’s repeated informal requests for this information,

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Defendant’s formal filing with the Court was Plaintiff’s first indication of what additional
records Education was reviewing and intended to produce.
6.

Although Defendant was aware of Plaintiff’s opposition, Defendant’s motion did

not indicate that the motion was opposed. Plaintiff filed its opposition the same day Defendant
filed the motion.
7.

On September 19 and September 21, 2017, Education made supplemental

document productions.
8.

Defendant filed a reply in support of its motion for an extension on September 21,

2017, along with the declaration of an Education employee. In that declaration, Defendant first
provided a partial response to Plaintiff’s repeated requests for information about Education’s
search methods and progress, such as dates when the search had occurred and the volume of
responsive materials. The declaration did not, however, provide further detail on the methods
used to conduct the search or searches for responsive documents or the volume of material
identified for review (not for ultimate production).
9.

On September 22, 2017, the Court granted Defendant’s motion for an extension.

The Court required that the answer be filed by 3:00 PM on October 4 and ordered a status
conference—to include counsel from Education and, if necessary, persons with knowledge of the
search efforts and pending White House review—in the event the answer was not timely filed.
10.

On October 2, 2017, Plaintiff emailed Defendant’s counsel to ask whether

Defendant intended to file an answer by the Court’s deadline. Plaintiff also requested a
conference to review the productions to date, including an initial list of specific questions
Plaintiff identified in its review of those productions. Plaintiff’s questions included both general
questions regarding the search methods and scope and specific questions on a range of issues

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with the productions, including documents produced in a format other than the one Plaintiff had
requested, documents and attachments that appeared to be missing based upon a review of the
produced records, and concerns regarding extensive redactions of non-exempt material. This list
of questions, along with its cover email, is attached hereto as Exhibit A. Defendant replied
indicating that it would file an answer but did not acknowledge Plaintiff’s written questions or
request for a conference to discuss those questions.
11.

On October 4, 2017, Defendant filed its answer. That day, Defendant also filed

two additional declarations. Despite Plaintiff’s repeated requests for information through
informal channels, Defendant elected to provide significant information to Plaintiff for the first
time through these formal declarations with the Court—declarations that were not required by
any Court order or rule. Although Defendant represented to the Court that production was
complete (see, e.g., Answer, ¶ 4, ECF No. 14), these declarations acknowledged that:
•

Defendant had made a unilateral decision to produce the requested calendars in a
format other than the one requested by Plaintiff, even though this format omitted
significant details specifically requested by Plaintiff. The declarant indicated that
Defendant selected this deficient format in response to internal directions from its
Office of the General Counsel to produce documents quickly due to pending
litigation, although no production deadlines had been ordered by this Court and
no production timeline had been fixed informally by the parties. Winters Decl. ¶¶
7-8 (Oct. 4, 2017), ECF No. 13-1.

•

Education had not produced calendars of one individual named in Plaintiff’s
request and eleven other unnamed former staff members covered by Plaintiff’s
request for political appointees or SES employees. The declarant cited unspecified

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 Case 1:17-cv-01247-TSC Document 16 Filed 10/27/17 Page 6 of 12

“technical barriers” as the basis for withholding these records and provided no
indication of whether Education was working to remedy these issues and produce
the records. Winters Decl. ¶ 5.
12.

The declarations did not provide meaningful information about the nature of the

searches conducted, instead substituting general statements that searches and reviews were
conducted. For example, one declarant stated simply that the “Ethics Division was asked to find
any responsive documents” and that she “conducted an extensive search,” without identifying
any details about the locations, custodians, methods, or search terms employed. GoodridgeKeiller Decl. ¶¶ 4-5 (Oct. 4, 2017), ECF No. 13-2. Therefore, even these formal declarations
submitted more than two months after Plaintiff requested—and Defendant promised to
provide—detailed information on Defendant’ search and review processes failed to provide basic
information necessary to allow Plaintiff to understand how Defendant conducted its search.
13.

Moreover, Defendant never sought or received Plaintiff’s consent to accept

watered down records in exchange for a faster production timeline. Instead, on multiple calls
with Defendant’s counsel, Plaintiff stressed that it required the requested information about
search methods and the volume of records identified for review precisely so that Plaintiff could
work with Defendant to make any appropriate modifications to the request; to agree to a
reasonable timeline for a complete production in light of the burden on the agency; and to avoid
or promptly resolve questions or disagreements about the adequacy of searches or disclosures.

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Plaintiff repeatedly advised Defendant this it required timely information—not a rushed and
incomplete production—from Defendant.
14.

On October 6, 2017, this Court ordered the parties to meet and confer and to file a

joint status report and proposed schedule no later than October 27, 2017. The Court’s order
specified several particular pieces of information the parties were to provide in this filing.
15.

On October 12, 2017, Plaintiff emailed Defendant to schedule a time to meet and

confer regarding preparing the status report and proposed schedule, including discussing the
written questions Plaintiff had provided by email on October 2, 2017, and identifying additional
questions prompted by the declarations Defendant filed on October 4, 2017. Plaintiff listed these
additional questions in the body of the email and provided information regarding its availability
to meet and confer at proposed times. The October 12, 2017 email is attached hereto as Exhibit
B.
16.

On October 16, 2017, a legal assistant emailed Plaintiff on behalf of Defendant’s

counsel to propose a conference with Defendant’s counsel and Education staff on October 23,
2017. Plaintiff replied on October 17, 2017, agreeing to the October 23, 2017, conference and, in
light of the limited time available to prepare a detailed status report and proposed schedule,
offered to discuss or clarify any of its questions prior to October 23, 2017, to the extent doing so
would streamline the conference on October 23, 2017.
17.

On October 18, 2017, Defendant’s counsel called Plaintiff and indicated that she

would be traveling on October 23, 2017, and would not be available for the conference at the
time she had proposed. Defendant’s counsel proposed rescheduling the conference for October
24, 2017, and advised Plaintiff that Plaintiff would receive responses to its written questions by
email on October 23, 2017. Plaintiff agreed to move the conference to October 24, 2017, but

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requested scheduling the conference early in the day to provide ample time to have a meaningful
back-and-forth conference and to prepare the status report and proposed schedule by the October
27, 2017, deadline established by the Court. Later that day, a legal assistant emailed on behalf of
Defendant’s counsel to request a copy of the questions Plaintiff provided on October 12, 2017,
and to say that Defendant would determine availability of an Education staff member for
October 24, 2017.
18.

On October 19, 2017, Plaintiff replied to the legal assistant’s email, providing a

duplicate courtesy copy of the October 12, 2017 questions and reiterating its interest in holding
the conference call as early on October 24, 2017 as possible.
19.

On October 20, 2017, Plaintiff responded to this email chain—which also

included Defendant’s counsel and the Education staff member who would participate in the
conference—asking what time the call would be held on October 24, 2017. Plaintiff did not
receive a response.
20.

On October 23, 2017, Plaintiff again replied to the same email chain asking what

times were available for the October 24, 2017 call. The Education staff member replied
indicating that she had been available on October 23, 2017, but now was not available until
October 26, 2017, and asking for Plaintiff’s availability. Plaintiff replied within ten minutes to
propose a 10:00 AM conference on October 26, 2017 and to ask whether Plaintiff should still
expect to receive written answers to its questions by the end of the day (October 23, 2017). The
Education staff member replied that she was available at 10:00 AM on October 26, 2017, but
would need to confer with Defendant’s counsel regarding her availability. The Education staff
member also indicated that Plaintiff would receive responses to its written questions by the end

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 Case 1:17-cv-01247-TSC Document 16 Filed 10/27/17 Page 9 of 12

of the day but said that Education had not understood all of the questions and would need to
clarify them during the discussion tentatively planned for October 26, 2017.
21.

On October 23, 2017, the Education staff member emailed partial responses to the

questions Plaintiff had sent to Defendant’s counsel on October 2, 2017. These responses did not
provide detailed information on the searches conducted. Instead, they largely referred back to the
conclusory declarations Defendant filed on October 4, 2017, or deferred a substantive response
until the parties held a conference call. Although these responses referred to the October 4, 2017
declarations, they did not address Plaintiff’s questions dated October 12, 2017, many of which
specifically asked for clarification of statements made in those declarations.
22.

On October 24, 2017, Plaintiff emailed the legal assistant, Defendant’s counsel,

and the Education staff member to attempt to confirm a call at 10:00 AM on October 26, 2017.
Plaintiff did not receive a response.
23.

On October 25, 2017, Plaintiff emailed the Education staff member (copying

Defendant’s counsel) to note that the written responses received on October 23, 2017 had not
addressed Plaintiff’s questions sent on October 12, 2017. The Education staff member replied
explaining that she had had technical issues with her email and requesting copies of both the
October 2, 2017, and October 12, 2017 sets of questions. Plaintiff replied with both sets of
questions. As of the time of this filing, Plaintiff has not received a response to its October 12,
2017, questions or any requests to clarify those questions.
24.

Also on October 25, 2017, Defendant’s counsel, via a legal assistant, sent Plaintiff

a draft consent motion seeking a five-week extension of the deadline for the joint status report
and proposed schedule. Defendant’s counsel had not previously discussed its intention to seek an
extension with Plaintiff. Plaintiff replied that it was not in a position to consent to an extension

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 Case 1:17-cv-01247-TSC Document 16 Filed 10/27/17 Page 10 of 12

prior to the conference regarding Education’s search tentatively scheduled for October 26, 2017.
Plaintiff further indicated that it would consider consenting to a two-week extension regarding
the joint status report if the parties were able to have a productive call on October 26, 2017.
Plaintiff again asked Defendant’s counsel to confirm her availability for the October 26, 2017
call. Plaintiff also offered to discuss the outstanding issues directly with the Education staff
member if Defendant’s counsel was unavailable but willing to consent to such a meeting.
Defendant did not reply to Plaintiff’s email.
25.

On October 26, 2017, at 9:19 AM, Plaintiff made a final attempt to confirm that

the conference call at 10:00 AM. Defendant did not respond, and no conference call occurred.
26.

On October 26, 2017 at approximately 4:00 PM, Defendant’s counsel called

Plaintiff. During that call, it was clear that Plaintiff and Defendant continued to disagree about
whether Defendant had answered all of the questions Plaintiff had sent to Defendant on October
2, 2017 and October 12, 2017. In light of this ongoing disagreement, Plaintiff advised
Defendant’s counsel that Plaintiff would oppose Defendant’s motion for an extension of time to
file the joint status report and would file a status report by the Court’s October 27, 2017
deadline. Defendant’s counsel indicated that she would contact agency counsel regarding the
status of Defendant’s responses to Plaintiff’s questions and call Plaintiff back. The call was
disconnected as it was nearing an end. Defendant’s counsel has not called Plaintiff since the 4:00
PM call ended.
Outstanding Issues
27.

Despite diligent efforts, Plaintiff has been unable to obtain information necessary

to provide the detailed information listed in the Court’s order or to propose a schedule for further
production or briefing.

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 Case 1:17-cv-01247-TSC Document 16 Filed 10/27/17 Page 11 of 12

28.

Plaintiff has identified several concerns with Defendant’s productions, including

(a) apparent missing records; (b) records produced in a format other than what Plaintiff
requested, and omitting information Plaintiff’s specifically requested; and (c) extensive
redactions of material that does not appear to meet the requirements for exemption from
disclosure under FOIA. Plaintiff has attempted to obtain information sufficient to propose
concrete supplemental searches and productions to remedy these issues but, as described above,
has been unable to do so.
29.

Plaintiff also has been unable to obtain information about the searches Defendant

has conducted, without which Plaintiff cannot assess their adequacy or determine what specific
supplemental search, disclosure, or briefing will be necessary.
30.

Plaintiff asked Defendant in its email dated October 12, 2017 whether Defendant

planned to seek an Open America stay or to file any dispositive motion. Defendant has not
responded to these questions.
31.

Plaintiff has also sought to obtain additional information regarding redactions in

the produced material in order to evaluate whether to accept the records as produced or to contest
the withholding of the redacted records. Due to the substantial redactions in the productions to
date and Defendant’s failure to clarify how these redactions meet the requirements of the claimed
FOIA exemptions, Plaintiff anticipates that a Vaughn index will be required in this case.
Proposed Schedule
32.

Based on Plaintiff’s repeated, unsuccessful efforts to obtain information or confer

productively with Defendant, Plaintiff believes that further delays and informal efforts will not
be fruitful and that Court supervision is necessary.

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33.

Plaintiff respectfully requests that the Court order a status conference at its

convenience in order to obtain the information necessary to set a schedule for such supplemental
disclosure and briefing as may be required.

Dated: October 27, 2017

Respectfully submitted,
/s/ Elizabeth France
Elizabeth France
D.C. Bar No. 99851
Sara Kaiser Creighton
D.C. Bar No. 1002367
Cerissa Cafasso
D.C. Bar No. 1011003
John E. Bies
D.C. Bar No. 483730
AMERICAN OVERSIGHT
1030 15th Street NW, B255
Washington, DC 20005
(202) 869-5246
beth.france@americanoversight.org
sara.creighton@americanoversight.org
cerissa.cafasso@americanoversight.org
john.bies@americanoversight.org
Counsel for Plaintiff

12

 Case Document 16-1 Filed 10/27/17 Page 1 of 5

Exhibit A

Case 1:17-cv-01247-TSC Document 16-1 Filed 10/27/17 Page 2 of 5
From:
Subject:
Date:
To:

Beth France beth.france@americanoversight.org
17-1247: American Oversight v. Department of Education
October 2, 2017 at 2:04 PM
wyneva.johnson@usdoj.gov

Good afternoon,
I wanted to touch base about the recent productions in this case and your plans for this week.
First, are you planning to file an answer or other responsive pleading by Wednesday at 3 PM?
Second, we would appreciate a walk through of the the searches used to arrive at the productions, how Education has reached the
conclusion that production is complete, clarification around some documents that appear to be missing, and the analysis behind some
recurring categories of redactions. We’re happy to resolve these questions via email or by setting up one or more phone calls,
depending on your preference. I have included an initial set of questions as an attachment to this email.
Best,
Beth France
Counsel
American Oversight
foia@americanoversight.org   202.869.5246

17-1247 - Initial
Questi…).docx

 Case 1:17-cv-01247-TSC Document 16-1 Filed 10/27/17 Page 3 of 5

American Oversight v. U.S. Department of Education, 17-1247
Initial Questions from American Oversight to the
Department of Education Regarding Document Productions
Dated 8/22/2017, 9/12/2017, 9/18/2017, and 9/21/2017
Searches, Production Format, & Missing Documents
•

•

•

For all calendars:
o American Oversight requested calendars in “memo” format, showing all attendees,
notes, and attachments. The calendars been produced in another format, which does
not appear to indicate invitees or attendees in many cases. Is there a reason that this
production format is used, and is Education denying American Oversight’s request
for the calendars in memo or an equivalent format?
o There are icons reflecting attachments in some entries, but the attachments
themselves have not been produced as requested.
§ Is Education withholding the attachments? If so, on what basis?
§ Does the production format used show icons in all cases where there were
attachments in the calendar entry? That is, do the records produced at a
minimum allow American Oversight to see every entry that included one or
more attachments, even if the attachment has not yet been produced?
For request 17-01479:
o How was the list of political/SES appointees identified?
o How were the calendars collected and reviewed?
o What timeframes were used for deciding what to include from the different
calendars? I noticed that the end dates varied. For example, the Oberlies calendar
ends in April, while the St. Pierre calendar goes through July.
o I have not seen phone logs responsive to part 2 of the request. What searches have
been conducted to identify responsive records reflecting phone calls?
o In Secretary DeVos’s calendars, several days are missing. Why are these days not
included in the production set? Will Education provide calendars for these days?
Examples include:
§ 2/9 - p. 2
§ 2/24 - p. 14
§ 3/31 - p. 132
§ 4/14 - p. 158
§ 5/19 - p. 223
§ 5/26 - p. 236
§ 6/9 - p. 263
§ 6/30 - p. 303
§ 7/1-7/7 - p. 303
§ 7/14 - p. 318
For request 17-01480:
o What searches or collection methods were used for each subpart of the request?
o Which subparts of the request were the records produced on 9/12/2017 produced in
response to (the file named OS Responsive Docs 17-01480-F Evers
REDACTED.pdf)?

 Case 1:17-cv-01247-TSC Document 16-1 Filed 10/27/17 Page 4 of 5

American Oversight v. U.S. Department of Education, 17-1247
o

o

o

If the records requested on 9/12/2017 were not produced in response to all of the
subparts, is Ed’s position that it has conducted an adequate search for the remaining
subparts and identified no responsive records?
§ For example, I have not seen phone logs or ethics waivers so far in my
review.
I have not so far identified Taylor Hansen’s calendars (requested in subpart 1) in the
productions we have received. Could Education please indicate where those calendars
are (production date/file name/starting page number) or clarify why his calendars are
not included in the productions and whether they will be provided in a supplemental
production?
The affidavit of Deborah Winters indicates that the documents responsive to this
request included 110 pages. The file produced on 9/12 contained 105 pages. Are the
remaining 5 pages being withheld? If so, on what basis?

Redactions
We can have a more extensive conversation about redactions at a later time, but we would
appreciate beginning that process with clarification on a few major categories, for which I’ve
identified some representative examples.
o

o

o

There are several places where full documents are withheld or where large blocks of text
have been redacted under (b)(5), where it is difficult for us to confirm that the underlying
content is pre-decisional and deliberative. Could Education provide high level descriptions of
the type of material redacted for some of these as a starting point for further discussion?
Some examples include:
§ 9/12/2017 Production “OS Responsive Docs 17-01480-F Evers REDACTED”: pp 23, 25-33, 36-38, 45, 48-54, 55-87, 103-105
§ 9/12/2017 Production “Calendars REDACTED”: pp 10, 20-21, 35, 73-74234-235
§ 9/21/2017 Production “DeVos”: pp. 20, 24,44, 106, 110, 124, 129-130, 151, 296, 305
There are several places where meeting topics or agendas appear to be redacted, including
either in the subject line of the entry or where there are very short (b)(5) redactions that
appear to cover only the topic for discussion. Can Education clarify type of content redacted
in these cases and the basis for concluding that content is pre-decisional and deliberative?
Some examples include:
§ 9/12/2017 Production “Calendars REDACTED”: pp 35, 38, 45, 56-58, 92, 148, 265,
318, 323
§ 9/21/2017 Production “DeVos”: pp. 4, 6, 44, 90, 134, 203-204, 226, 320, 323
There are several places where it looks like attachment icons have been redacted. Can
Education confirm that that is the case and, if so, clarify its basis for concluding that the
document titles are exempt under (b)(5)?
§ 9/12/2017 Production “Calendars REDACTED”: pp 128, 199-200, 272, 301
§ 9/21/2017 Production “DeVos”: pp. 172, 197, 244, 257

 Case 1:17-cv-01247-TSC Document 16-1 Filed 10/27/17 Page 5 of 5

American Oversight v. U.S. Department of Education, 17-1247
o

o

o

 

There are several places where content has been withheld under (b)(5) even though
individuals who are not federal executive branch employees are included on them or they
involve meetings with individuals outside the government. Can Education clarify its basis for
asserting (b)(5) in these cases? Examples include:
§ 9/12/2017 Production “Calendars REDACTED”: pp 22, 65, 166, 205, 209, 329
There are cases where meeting times are redacted under (b)(5). Can Education clarify what
about this material is pre-decisional and deliberative? For example, 9/12/2017 Production
“Calendars REDACTED” p. 350.
There are cases where the name of the individual participating in a meeting is entirely
redacted or when the whole email address is redacted, including the personal portion and the
domain extension. We do not object to redactions necessary to protect email addresses, but
we would appreciate clarification on the identities of these people and the email domains
they are using or on how the identities of the individuals or the organizations they are
affiliated with are exempt under either (b)(5) or (b)(6). Examples include:
§ 9/12/2017 Production “Calendars REDACTED”: 32, 76, 148, 162, 171, 192, 193,
318, 323
§ 9/21/2017 Production “DeVos”: pp. 12-13, 28, 60, 65, 69-74, 87-89, 108, 13, 139,
142, 148, 158, 164-165, 178, 218, 225, 227, 235, 240-241, 243-245, 248-249, 251,
253, 263, 265, 270, 275, 277, 279, 283, 285-286, 291, 296, 300, 302-304, 306, 313314, 317, 323

 Case Document 16-2 Filed 10/27/17 Page 1 of 6

Exhibit 

Case 1:17-cv-01247-TSC Document 16-2 Filed 10/27/17 Page 2 of 6
From:
Subject:
Date:
To:
Cc:

Beth France beth.france@americanoversight.org
Re: 17-1247: American Oversight v. Department of Education
October 12, 2017 at 10:55 AM
wyneva.johnson@usdoj.gov
Cerissa Cafasso cerissa.cafasso@americanoversight.org

Hello,
In light of the detailed status report that the Court has ordered filed on 10/27, can we schedule a time to discuss the questions I sent
by email on 10/2 (below, and reattached for convenience)) and the following additional questions based the declarations filed on 10/4
and the court’s order?
Who are the 11 former political staff members other than Taylor Hansen for whom Education has not been able to retrieve
calendars to date (referenced in the 10/4 Winters Declaration)?
What steps have been taken to obtain these calendars or determine where at Education these records are maintained? What
are the “technical barriers” mentioned in the 10/4 Winters Declaration?
Can you confirm that all records that were referred to the White House Counsel for review have now been released?
The Goodridge-Keiller Declaration indicates that “OGC provided American Oversight with verification” regarding recusals
from discussions on gainful employment, then concludes “so other than the recusals there were no other responsive
documents.” American Oversight’s request is not limited to recusals involving gainful employment but covers any recusal,
disqualification, waiver, or authorization for either Taylor Hansen or Robert Eitel. Was a search conducted for recusals,
disqualifications, waivers, or authorizations involving other issues? If so, how was that search conducted?
The request also seeks communications regarding the gainful employment rule or guidance barring debt collectors
from charging high fees for past due loans, regardless of the existence or non-existence of recusals related to these
matters. What searches were conducted to identify such communications?
The Goodridge-Keiller Declaration indicates the OGC identified 5 pages of material responsive to 17-01480-F, and the 9/21
Winters Declaration indicates that there were 110 pages of material responsive to this request. The 9/12 production included
105 pages marked as responsive to that request. Do those 105 pages include the 5 pages referenced in the GoodridgeKeiller Declaration? If not, when/where were those pages produced? (And as indicated in my 10/2 email, we would also
appreciate clarification on whether/where the additional 5 pages mentioned in the 9/21 Winters Declaration have been
produced).
Does Education anticipate seeking an Open America stay or filing a dispositive motion?
I have copied my colleague, Cerissa Cafasso, on this email. I will be going on parental leave around the end of October/beginning of
November, and Cerissa will be handling this case for American Oversight while I am out. I will be including her on emails and calls
going forward to ensure there are not gaps in communication when my leave begins.
I am generally available tomorrow, Monday, and Tuesday to discuss our questions about the production and the joint status report.
Please provide some times that would work for you, and I will confirm Cerissa’s availability.
Best,
Beth

17-1247 - Initial
Questi…).docx
On Oct 2, 2017, at 2:04 PM, Beth France <beth.france@americanoversight.org> wrote:
Good afternoon,
I wanted to touch base about the recent productions in this case and your plans for this week.
First, are you planning to file an answer or other responsive pleading by Wednesday at 3 PM?
Second, we would appreciate a walk through of the the searches used to arrive at the productions, how Education has reached the
conclusion that production is complete, clarification around some documents that appear to be missing, and the analysis behind
some recurring categories of redactions. We’re happy to resolve these questions via email or by setting up one or more phone calls,
depending on your preference. I have included an initial set of questions as an attachment to this email.
Best,
Beth France
Counsel
American Oversight
foia@americanoversight.org   202.869.5246

 Case 1:17-cv-01247-TSC Document 16-2 Filed 10/27/17 Page 3 of 6
foia@americanoversight.org   202.869.5246

<17-1247 - Initial Questions for Ed re Productions (2017 10-02).docx>

 Case 1:17-cv-01247-TSC Document 16-2 Filed 10/27/17 Page 4 of 6

American Oversight v. U.S. Department of Education, 17-1247
Initial Questions from American Oversight to the
Department of Education Regarding Document Productions
Dated 8/22/2017, 9/12/2017, 9/18/2017, and 9/21/2017
Searches, Production Format, & Missing Documents
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For all calendars:
o American Oversight requested calendars in “memo” format, showing all attendees,
notes, and attachments. The calendars been produced in another format, which does
not appear to indicate invitees or attendees in many cases. Is there a reason that this
production format is used, and is Education denying American Oversight’s request
for the calendars in memo or an equivalent format?
o There are icons reflecting attachments in some entries, but the attachments
themselves have not been produced as requested.
§ Is Education withholding the attachments? If so, on what basis?
§ Does the production format used show icons in all cases where there were
attachments in the calendar entry? That is, do the records produced at a
minimum allow American Oversight to see every entry that included one or
more attachments, even if the attachment has not yet been produced?
For request 17-01479:
o How was the list of political/SES appointees identified?
o How were the calendars collected and reviewed?
o What timeframes were used for deciding what to include from the different
calendars? I noticed that the end dates varied. For example, the Oberlies calendar
ends in April, while the St. Pierre calendar goes through July.
o I have not seen phone logs responsive to part 2 of the request. What searches have
been conducted to identify responsive records reflecting phone calls?
o In Secretary DeVos’s calendars, several days are missing. Why are these days not
included in the production set? Will Education provide calendars for these days?
Examples include:
§ 2/9 - p. 2
§ 2/24 - p. 14
§ 3/31 - p. 132
§ 4/14 - p. 158
§ 5/19 - p. 223
§ 5/26 - p. 236
§ 6/9 - p. 263
§ 6/30 - p. 303
§ 7/1-7/7 - p. 303
§ 7/14 - p. 318
For request 17-01480:
o What searches or collection methods were used for each subpart of the request?
o Which subparts of the request were the records produced on 9/12/2017 produced in
response to (the file named OS Responsive Docs 17-01480-F Evers
REDACTED.pdf)?

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American Oversight v. U.S. Department of Education, 17-1247
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If the records requested on 9/12/2017 were not produced in response to all of the
subparts, is Ed’s position that it has conducted an adequate search for the remaining
subparts and identified no responsive records?
§ For example, I have not seen phone logs or ethics waivers so far in my
review.
I have not so far identified Taylor Hansen’s calendars (requested in subpart 1) in the
productions we have received. Could Education please indicate where those calendars
are (production date/file name/starting page number) or clarify why his calendars are
not included in the productions and whether they will be provided in a supplemental
production?
The affidavit of Deborah Winters indicates that the documents responsive to this
request included 110 pages. The file produced on 9/12 contained 105 pages. Are the
remaining 5 pages being withheld? If so, on what basis?

Redactions
We can have a more extensive conversation about redactions at a later time, but we would
appreciate beginning that process with clarification on a few major categories, for which I’ve
identified some representative examples.
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o

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There are several places where full documents are withheld or where large blocks of text
have been redacted under (b)(5), where it is difficult for us to confirm that the underlying
content is pre-decisional and deliberative. Could Education provide high level descriptions of
the type of material redacted for some of these as a starting point for further discussion?
Some examples include:
§ 9/12/2017 Production “OS Responsive Docs 17-01480-F Evers REDACTED”: pp 23, 25-33, 36-38, 45, 48-54, 55-87, 103-105
§ 9/12/2017 Production “Calendars REDACTED”: pp 10, 20-21, 35, 73-74234-235
§ 9/21/2017 Production “DeVos”: pp. 20, 24,44, 106, 110, 124, 129-130, 151, 296, 305
There are several places where meeting topics or agendas appear to be redacted, including
either in the subject line of the entry or where there are very short (b)(5) redactions that
appear to cover only the topic for discussion. Can Education clarify type of content redacted
in these cases and the basis for concluding that content is pre-decisional and deliberative?
Some examples include:
§ 9/12/2017 Production “Calendars REDACTED”: pp 35, 38, 45, 56-58, 92, 148, 265,
318, 323
§ 9/21/2017 Production “DeVos”: pp. 4, 6, 44, 90, 134, 203-204, 226, 320, 323
There are several places where it looks like attachment icons have been redacted. Can
Education confirm that that is the case and, if so, clarify its basis for concluding that the
document titles are exempt under (b)(5)?
§ 9/12/2017 Production “Calendars REDACTED”: pp 128, 199-200, 272, 301
§ 9/21/2017 Production “DeVos”: pp. 172, 197, 244, 257

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American Oversight v. U.S. Department of Education, 17-1247
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There are several places where content has been withheld under (b)(5) even though
individuals who are not federal executive branch employees are included on them or they
involve meetings with individuals outside the government. Can Education clarify its basis for
asserting (b)(5) in these cases? Examples include:
§ 9/12/2017 Production “Calendars REDACTED”: pp 22, 65, 166, 205, 209, 329
There are cases where meeting times are redacted under (b)(5). Can Education clarify what
about this material is pre-decisional and deliberative? For example, 9/12/2017 Production
“Calendars REDACTED” p. 350.
There are cases where the name of the individual participating in a meeting is entirely
redacted or when the whole email address is redacted, including the personal portion and the
domain extension. We do not object to redactions necessary to protect email addresses, but
we would appreciate clarification on the identities of these people and the email domains
they are using or on how the identities of the individuals or the organizations they are
affiliated with are exempt under either (b)(5) or (b)(6). Examples include:
§ 9/12/2017 Production “Calendars REDACTED”: 32, 76, 148, 162, 171, 192, 193,
318, 323
§ 9/21/2017 Production “DeVos”: pp. 12-13, 28, 60, 65, 69-74, 87-89, 108, 13, 139,
142, 148, 158, 164-165, 178, 218, 225, 227, 235, 240-241, 243-245, 248-249, 251,
253, 263, 265, 270, 275, 277, 279, 283, 285-286, 291, 296, 300, 302-304, 306, 313314, 317, 323