exhibit 1
Case 1:09-cv-01044-RJL Document 1-1
Filed 06/04/09 Page 1 of 16
EXHIBIT 1
Case 1:09-cv-01044-RJL Document 1-1
08/26/04
17:42 FAX 2024015391
.
Filed 06/04/09 Page 2 of 16
DEPT ED OGç
II 001
UNrrD STATES DEPARTMENT OF EDUCATION OFIlClt OF TH CHlI INFRMnON OFfC&R
AUG 2 63lQ4
Douglas R. Cox, Esqu Oibson, Dun &. Crutcher, LLP 1050 Connecticut Avenue, N.W. Washigtn, D.C. 20036-5306
Re: FOIA Reque for Prgr Review Reort
Reouest NOB. FSA/OIG/OGC-03-S3SSF: FSA-045745F: and FSA.04~S930F
Dear Mr. Cox: As one of
the Freom of Inforrtion Act Offcers for th U .S: Deparent of your ApriS, 2004
(Deparent), I am in recept of
lettr to Kent D. Talber of
Education the
the Ge Cousel (OGe). Your leter was in resp to the
Depart's Offce of
Dearent's invitaon to desigi informtion contaed in the Program Review Report (PRR), whch your client, the Apollo Grup, Inc. an its subsidi, the University of the Freedom of
Phoeni (University), conrudered exemt purUB to exempon (b)( 4) of Inormtion Act (FOIA). 5 US.C. § SS2(b)(4). The Deparent notes
that the procs envisioned by Executive: Ordc:r 12600 limits commenta and/or informaton puruat to FOlA exemption (b)(4). However,
objections to the releae of
OOC, at your request has permitted you to raise other objectons uner the FOIA (5 U.S.C. §§ 552()(S) and (b)(7)), not rc1atc:d to Executive Orer 12600. The Deparent comiiders the arguments tht you haVe" rased under the FOIA (5 U.S.C. §§ 552(b)(5) and
(b)(7)) to be adviry in nate. Upon review ild consideration of
your April
5, 2004
letter, the Deparent has
concluded th FOIA exempton (b)(4) does not support witbolditbe PRR eithr in whole or in par. The Deparent has also concluded that your recODUeoded use of
FOIA exemptions (b)(5) and (b)(7) does not support witbholding the PRR, either in
whole or in par. However, the Deparent has conclude th the recruter/employee names, titles, hie dates, c:xit dates and compenstion amQunts are properly excludale uner exemption (b)(6). 5 U.S.C. § 552(b)(6). The employee naes, daes, and
comperisaton amounts are found at pages 2-4, pages 31-32, Appendix A, an Appendx B of tlie PRR. Pages two (2) thugh ten (10) of
ths letter
will address your arguents relevant
to the
Dearent's use ofFOIA exemption (b)(4) in accord with the Executive Orde 12600 process. The rernaíder of ths letr will respond to your adviory recommendations
regarding FOIA exemptioIl (b)(5) and (b)(7).
400 MAD AVE., s.w., W"'SHINOTON. D.C. 2D202-4:io ""ll. GoY . Ou miíon ~ ~ .."'.. oqua """ ~ "'""oon iu ~ p~ odutina.iu!lsnoo ¡h",Il/i tJ Naii
Case 1:09-cv-01044-RJL Document 1-1
08/26/04 17: 42 FAX 2024015391
Filed 06/04/09 Page 3 of 16
DEPT ED OGC
Il 002
Dougl R. Cox, Esquir (1) Pro!!Øl Reew ReDort As an ùitî maer, the Deart disages with YQUl chscteon of the PRR as an "inter progr reew report" lD th normal coure, th Dearent doe not issue
"inte" PRR, since PRR idefy whateer fidi th Deparent ha mae as a
result of its reiew of a. school's records and syst. Th Deparen does, however, issue "iter" fi detetion letter when it is able to assess liabilite!l for only
cert fidi, and inteds to tae adtional tie to conclude oter figs. In such
cas, the deteron letter is cleary marke as ''inter.'' But fo purses of ths FOIA anys, th PRR is a disc fina acon; its fis oute the aleged
violations dct d'Ug the Depent's reew of the Univerity's adston of its Title IV program. In essence, th PRR resent a "fied stop" in an ongoing process of assi an insttution in its effort to comply with th law. Conseqently, we do not consider the PRR to be an ''ite'' report. Your April S, 2004
leter alo claed that th PRR is "tlwe an intey inconst,
an its release would impse masive and unai ham on Apollo, its sharholder an its employee." However, aside from ma broad, eonclusory stents, you have not presente a cognble argument un the FOIA. Secton 1099c-l(b) of
th Hier
Educaon Act afford an instituon th opportity to co~t any a.ve,
accountig or recrd-keeping err dug the progr reew process. Ths opportty is clealy identied in the CQver let to the PRR when th Deparent request th an
the PRR. It is the Dearen's
intuon "reew and respond" to the findings of
undersdig tht your cüent responded to th PRR on Mah 19, 2004, Aprill4, 2004 an May 20. 2004. Consequeny, your chalenges to the reliilty of
the PRR wee
appropriate for those earier resonses.
(2) Exempton (b)t4~ - Trade Seeai Commercia or Finucf Information
Afr a review of your redactions to 1he cover letter and PRR the Deparent has concluded that the redactions submittd by the University pursuant to exemption (b)( 4)
are not suåtable, either in whole or in par. Exemption 4 of
the FOlA protets frm disctosue ''te sec an commerial or
ficial inormtion obtaed nom a person (that is) privileged or confdential." 5 U.S.C. § 552(b)(4). In assessing th confdential nati of ths inrmtion, we fist
detee whether it was a requied or voluntar submision to the Deparent. The
Depaint has concluded tht the inormaton submied by the University, a. contaned in the PR. reprsents a required susion because it js necessiuy gathered and
reviewed pursut to the Deparent's carng out of an on-site visit and/or review of an
2
Case 1:09-cv-01044-RJL Document 1-1
08/a6/~l 17: 43 PAX _2024015391
Filed 06/04/09 Page 4 of 16
DEPT ED OGe
II 003
Dougas R. Cox, Esqui intuonal progr i "(1he overal asscssmmt of an inon's adinistrative and ñmuiçj~ elplllity is.det by exing an intuon's FSA policies, prcedures
an record." 'T 2001 Pr2n Review Oidc. p. 1-3. Coequey. when the
Dearent reviews an instition as pa of it moniri tictiOnB, the insttuOJ mut provide the Deparent with access to cer informion so that the Dearent may ca out an efectve an effcient review. 34 CFR 668.2. Therfore, th innnaton, as conted in the PRR is a requid submsion.
Becus th Deparent bas concludd that th Univerty's inrmtion, as contaed in th PRR wa a req\Jd submion, the ìnormon wi be withd if its releae will imai the Depaent's abili to obt necessar inmiaion in the fi Or will
the peron from whom the
oaue substtial ha to the competitive position of
inormaton wa obtaed National Par & Conscron Ass'n v. Morton. 498 F.2d 756
th inormaton will not (D.C. eir. i 974). The Deparent ha conclude that release of impai the Depart's abilty to obta necsar inormtion. in the fue. As par of the Title IV prgram review, th Deparent must gBIer an amyz instutiona data
and records, an identify any wees in the intuon's predures for admer program fwds. The 200 1 Pr~am Review Guide. p. I-I The Deparnt will contiue
to exercise its auority to obta such inrmation in the :f, notwth th
release of the PRR. Therfore. the maer at issue is whet releas of ths inoraton wil caus subst ha to the Univerty's compettive position in th maetpla. the submitt. the D.C.
In anyzg the "sustallia to the comptitive position" of
Circut ha "empha" that tle "importt point for (th 1 compeiti ha (anysis) in th POIA contex. . . is th it is lite to ha flowi frm the affirmative use of
prprita inormaton by comiitito" an that ths "should not be taen to mean
simply any injur to competitive position, as might flow frm customer or employee
disgntlement." Public Citin Heath Reseach Group v. FDA at aI.. 704 F2d 1280, 1291-(D.C. eir. 1983) (enphašis a.dde). Ii other woro, the FOlA caot prtect the Univerity from reguar maketplace competion frm oth for-prfit intions of higher education tht compete for stdents. Your Apn15, 2004 lettr outlined two (2) caegones of proteted inormation contaied m the PRR With reard to th fist category, "the organatona stctue of (th University), the orgational chai of comm for recrueis or enollent counselol',
the positions and responsbilties of the varous employees involved in the stent retig process, and the technques and metodologies used by (the Univerity) to 1Ik stent enrollents." you stated the following:
i lfthe inotatiDn had been deemed 10 have been submIttd vol\lly, the Depanent s analysis on the release of
the PR under exemption (b)(4) would be in accord wit Crcal Mass En2V Prolect Y. NRC.
975 F.2d 871 (D.C. Cir. 1992).
3
Case 1:09-cv-01044-RJL Document 1-1
08/26/04 17: 43 FAX 2024015391
Filed 06/04/09 Page 5 of 16
DllP: ED OGç.
ia 004
Douglas R. Cox, Esqui
To relea to the public ths setive coinial inrmtion would alw A pallo' s..cOIS. to: (1) scru Apollo' 5 metodology
for re and enrll st; (2) obsere Apollo's make an reti $tatgics includ its teeug im st
techques; (3) see faily de inormaton abaApollo's organtiona stct, its pernn. the fwons these peonnel
perm and thir relaton to one iloth in the orgizaona ciai of commd. and (4) otherse have an "ide look" at how Apollo compe for, atts, and mata its 5tÙl. 'I category of
Prteed Inormon reflects Apollo's ap to ru a UJverty sy$m efciently aud effecvely. It too, re in¡euity and orgialty regadig how to ret quaifed sts to the
unerty ljettg. It is the product of yes of exerene an its disçlosure would seriou:ly unrme Apollo's comptive advantae by allowig competitors to have access to Apollo's idea. processes, intern stict, and metdologies tht they otherise
would not have access to or would have ha to spend consideable time and fu to develop on their own.
Whe you have out th h. as stte above, you hiive not demnstrate in your
copondenCè how the st li would occur wi th Specic release of th
category of infontion Demonstiox. of copettive ha under FOIA exemption
(b)(4) requirs more than conclusory allegations ofba ~ Public Citizen Health Reearh Grup v. FDA. 2000 WL 34262802 (D.D.C. 2000); Public Citi Heath
Researh Group v. FDA, 185 F.3d 898 (D.C. Cir. 1999); TR COrD. V. NI 10 F.Supp.2d. lOS7 (E.D. Mo. 1998). The use ofFOIA exempton CbX4) requis a
the .'specfic:, credible, an lily reons'" why the releae oftb
demonsation of
category of inonnation would actuly result in competitive injur to Apollo. Le v. FDIC. 923 F.Supp. 451. 4SS (V.BoO,C. S.D.NY 1996. Mere pMisey. yon have not demonsate wi spc:fieity how th releae of "the orgaona stct of I the
University), the organiutional ch of command for recniter or eiiollment counelors, the varous employees involved in the student reruting process, an, the technques an methodologies used by (the University) to
the positions and responsibilties of
trck studet enollents" wid its afve use by a competitor would cause substatial har to Apollo's oompetitive position amongst the for-pro::t higher education
insttutions. Your April
proteted inornon as
5, 2004 letter outlned a second category of
"inomition concerng employee compnsation and the macer in whch em.p1oyee compensaton is pmportedly caloulate" You furer sted tht the reeas of
inormation would cause competitive har because, "to disclose the aleged
4
th
Case 1:09-cv-01044-RJL Document 1-1
08/26/04 17: 44 FAX 2024015391
Filed 06/04/09 Page 6 of 16
DEPT ED OGe
Douglas R Co:i, Esqui compeaton stcts of Apollo's employees WOd alow competitors to cOpy
Apllo's compenaton sy and to us thr knowledge of Apollo's compon paka¡s to rerut Apollo employees, may of whom posses si.cant and valuale
intutiona knwledge. Thus Apollo considers its copøon system to involve
highy confdeal commercia and fii: inomon the discosure of whch would
cause Ilubstaal ha to Apllo's cometive position." , As an inti matt, th Deparent notes th you refer to Apollo's employee .
compaton str as "aleged." To ar¡u th the relea of Apollo's employee compaton st would caue substa ha to its competitive position, whie alo citi its exien as "aleged" is innsistet. You hEe no demon.ed how the
a:tive 'Ue of "inormtion concrn employe compeaton an the maer in
wlúch employees compention Í5 puorty cacuated" by a competor would cause substti ha to Apollo's compettive position.
the PRR ideitig an redactig
You alo provided the Depent with a. copy of
those SecolU, whch you a$ser are expt from disclosu "puruant to Exemption 4 and the Ti-e Secrts Act." Below, th Deparent wi adess each of your proposed
retions.
~
(a) RedactioD8 to PRR's Cover Letter frm Donna Witmau to Todd S.
You have redcted the followig inormation:
Th rep contans a serous fidi regardi the school's its fiduciar dut; specifcaly th the
substatial brh of
Univerty of Phoeni (UOP) sytematicaly engaes in actions degned to miea the Deparent of Edl.atQn and to evade detecton of it: improper incentive compentin syste for those
involved in recruti activities. Th fidi of noncoinpliance is refered to th applicable reguations. and specific: the acion
require:d to comply with the regulations and statutes. Thse staements do not conta confdential commercial or fianial inrmtion. Examples ofitems regad as commercial or ficial inonntion include: busÍness
sales sttistics: resch dat: tehncal design; cusomer an supplier list; profit and loss data; overea an opering cost; and inormation 00 financial condition." U.S. Dept. of Jusce. Offce of Inormon Policy. Freed of Inoron Ac Guide & Prlvacv Act Overvew (My ;2000 ed.) (citing Guf & Wester Inus. v. Unite States. 61~ F.2d S27 (D.C. Ci. 1979) andcptllImp.TS Union v. VA 301 F. Supp. 796 (S.D.N.Y. 19(9), annea di5mised as moot. 436 F.2d 1363 (2d eir. 1971)). These statements represent a bnef syopsis of
the: Depiients fidin¡s, and do not represent commercial
5
ll005
Case 1:09-cv-01044-RJL Document 1-1
08/28(Q~ 17:44.FAX 20240153n1
Filed 06/04/09 Page 7 of 16
~006
DEPT ED OGe
DoqJas R. Cox, Esqui or fiancial informtion eo"Yisione by,the FOIA st. Morever, FOIA oxention
(b)( 4) reui that the confdenti commerial or ficial :iormaton be obta frm a person. 5 U.S:C. § 5S2()(4). Th term "J'son" ref to a wide rae of eities,
includg cooraons. ~ Nader v. FDIC. 92 F.3d 93 (2 eir. 1996). Howeer, the
inimtion at issue was generte byth fede goverJDt an no "obted frm a peson." Such inormation is excluded frm exemption (b)(4) protecn. ~Mavda v. nw 254 F.Supp.2d 23 (D.D.C.2003). Whe these statents ar baed upn informtion provided by the Univerty, the conclueion foun in theso stts ar the
Deparents oonclusons and therfore. were not "obta from a peson"
thes
Consently, FOIA exempton (b)(4) canot be invoked to prclude the releae of
stments.
However, the cover lett does iden the University's D-U -N-S numbe. As you may knw, th D-U-N-S numbe is th num by which an intion ca dr down fu
that have been awided to it by the Deparen. The Dearent ha conclude th the D-U-N-S number is exempt from dislosure uner the FOIA purt to exempton
predomitly
(b)(2). 5 U.S.C. § S52(b)(2). Ths exption precluds th disclosu of
which would rik the
intern matters of a substatial natu the disclosure of
circumvention of a st or Deparent reguation. The Deparent has concluded that th releae of Apollo's D-U-N-$ nunber would plae th Depalent's ficia
datbaes at nsk, th pcmitt the pote unori.drw down offu. The Dthe PRR.
U-N-S number wil be redacte frm the cover letter as well as on page 2 of
(b) Table or Contents Reactons
the Uiùverity's
Your redacons enmpass the Depent's genc stents of
the the University's recruter sysm an statements ofile alleged
rerote compenaton system. Thoyalso include more de1ed stements of Deparen's analysis of
violaton, foun. Aga these sttements do not cotan eodenti co:mrcal or ficial inormtion as defied in secon 2(a) oftbs lett. Consequently, FOIA exemption (b)(4) caot be invoked to prelUde the release of
the Depaent's generic
sttemonts regaidig the University's recriter compenson system.
(c) Redac:tioJU at Dae:es 2-4 - "InstitionAl Review Data Shee't'
You have redcted a char listg the Uiiversity's Title: N pro¡rs and its advane system of
payment for fical yea 1999-2003. This cha outles th amount offedera.
fuds Apollo has received in order to suppor its Title IV program frm fiscal year 1999 though fisca yea 2003. Th Deparent acknowledges tht ths inormtin can be
consdered commercial or fwaJaI inormon under the FOlA to the extt tht it relates to Apollo's operaon of its busess and possibly impacts it$ s1:egy for sekig out and securing non-federcU funds. Public Citien Health Researh' Group v. FDA, 704 FOIA exemption (b)(4) are to be given their
F.2d 1280, 1290 (D.C;. Cir. 1983)(temis of
6
Case 1:09-cv-01044-RJL Document 1-1
08/26/04 17: 44 FAX 2024015391
Filed 06/04/09 Page 8 of 16
DEPT ED OGC
II 007
Dougl R, COX, Esui Boar; S88
"ordmeanin~"); ~mAmerèanAiline. InC. v. N~ona Medon
F.2d 863, 870 (211 Cir. 1978) (citli Getman v. NLRBi 450 F.2d 670, 673 (D.C. Cir.
1971 ))(inoI'on is commerial if in an of itself it seres' a commercial function or is
of a commeria nat); Waslùlrn Post Co. v. im. 690 F.2d 252 (D.e. Ci. 1982) th is :fcial intest in it). However, the Deparen ba
(inormaton is ficial if
concluded th the release oftbs infoon would not cae substtial han to Apollo's competive position in the makela becuse it idntifies the Title IV prgrs for which the Univerty was eligible in fisca yea 1999-2003, and th amowit
those progn. Th inormaton does not revea
offtds receved un eah of
anyt relatve to the University an the operatons of its businss. As a pracal matt th is a stong public interes in knwi how th Deparent alocates Title N
fuds to varous educatona institution. Consuey, FOI exemption (b)(4) canot be inoked to prelude th relea of an its adva system of
th ch list the University's TItle IV progrs payment fo fisc yes 1999-2003.
Univerty offcials (an their titles) who were
You have al re a cha of
inteiewe durg the program reew at the Phoen On-Line, San Jose, Sa Fracisco, San Mateo. Livermore and, Oakand capuss, as well as a nottion rega the intervew of fo:nr Univerty employe offsite an employees who chose not to ievea
their idc.tities. Based upn the sam stad as cite in seon 2(a) of ths leter, the Depaent ha a.ga conclud th th inrmaton does not quait as commercial 01 ficial inormtion
"tt is excludble put to exempti (b)(4). However, as stated
prviously, the Deparnt ha conoluded th employee na and titles ar properly ex.cludale under exemption (b)(6). 5 U.S.C. § SS2(b)(6). FOrA exemon (b)(6)
pennts the Deparent to withold inrmaton about indiviuas in "personnel and medica fies and siinar fi" when th disclosur of suh inormaton "would consttute
a clealy unwated invaion ofpen privay." In dcg wheer releae of th information would consttute a clealy unwaranted invason of persona privay, One must identi and balance an exsti_proectible prvacy interest aga the public inteest in disclos\Qe, if any. In adtion, the identiable public interest must be one that
sneds light on the Depart's operations. In ths case, the University employees have a privacy inter in thei naes and
positions. However, there is also a public interest in knwi how the Deparent caes out its obligation unde Title IV. More specifically, the public ha an interes in knowig how the Deparent monitors recipients of
Title IV fu for compliance with
the Hier EducClon Act. The Deparent ha concuded tI the UIuvenity's employees' priacy intersts in their names an positions is outwighed by t1 public's inteest in knowig how th Deparent haes its Title IV responsibilties because the
public is interested in kiowig tht the Deparent is i: the necsar steps to fu,
ita sttory obliaations. The public is not necsary inter in knowig which specific person was inteewed fo puroses of cr the PRR Consuetly,
7
Case 1:09-cv-01044-RJL Document 1-1
08/26/04 17: 45 FAX 2024015391
Filed 06/04/09 Page 9 of 16
DEPT ED OGe
ia 008
Doug R. Cox, Esquie exempton (b)(6) is applicale to preclude the releae of
the Dames an positions oftJe
inteewed University emloyees, ctnent and fanner. At the en of page 4 of
th PRR you red the followig stteent:
The reiewer alo intervewed fomier UOP employees off site as well
IS addtiona curnt employees who do no wat their identies
reeaed for fe oflosi th jobs.
Th Deparent has concluded th ths sentence does Dot conta my confden
commerc or fiial inormon. an does not ident a prtcble pnvacy interest. Consequently, ths setece is releaable under the: FOIA. (ei Redactions at p*te 6 - ~S~tion 2.4 Growth ofEnrollmcits &
Revenues"
You have reded portons of a ch which list the Univerity's tota degree students, on-line stdents and net I'VCnue for 1991-2003, the UnivCJjty's coiporate goal for 2002,
and a sttet oftha frequeny with which the Univerity evuas its recte'
perrmance and awar of sal incres. Rega the lisg of
the University's tota d.egree stents, on-lie stnts and net
revenue for 1991~2003, th Deparent acwledges th ths inormation ca be
considerd commcial or finaial inormon according to the stad outlined in section Z( c) of tlus lett, i.e. to the extent that it relates to Apollo's operation of its
business and possibly impats its stat~gy for seking out and see'l Don-fed fuds. this information would not
However, th Dearent has conclude th the relea of
cause substantial ha to Apollo's copetitive position in th makelace becuse it
merely represets th Univerty's grwt over a twlve-year penod and does not identif
any deils as to how Apollo achieved th grwt. Consntly, FOIA exempon ths inormaton.
(b)(4) cait be invoked to prclude the release of
Regardin die University's statmet ofim corporate goal for 2002, "(tJhe UOP 2002 corporae: goal wa '5-5-5': Five Year, Five Milion Students and Five Billion Dollars," the Depaent ha concluded that ile release oftls inormtion would not cause ham to Apollo's competitive position because it is does not revea any detals as to how
Apollo would go about achievi th goal. Moreover, the University's corpora goal is merely a wih of what it would lie to achieve withi It five-yea period; there is no guantee tht diis goal would be met Consequently, FOIA exemtion (b)(4) caiot be invoked to prelude the release of
this IInntion.
As to the reruiter evaluation infonnaton, the Deparent has concluded that the release of
this inormation would not caus hii to Apollo's competitive position hecalle it is a
8
Case 1:09-cv-01044-RJL Document 1-1
08/26/04 17: 45 FAX 2024015391
Filed 06/04/09 Page 10 of 16
DEPT ED OGC
ll 009
Doula R. Cox, Eiqui how oft the revews are completed an do not detai the revew proces
stent of
itself If a compettof wer to reeive ths inrmtioD, it woul be lite to knowg the frquey of reviews bu not to how th fruen of th reews enabled th
Univer to aceve its succs in th maketla. ConsuentYt FOIA exemon ths infonntion.
(b)( 4) cant be invoked to preclude th releae of
(e) Reactoiii at iuU!eø 6-7 - "Seeon 3 SeGue of Review"
You have rcdawd the followi inormaon:
Dun the visit, ar ofnox-cnilian we nod. The findig of non-compliane is referenc -to the aplicale reatons. The
fidi spcifies th actons to be taen by UOP to br operons the financial aid prgr into complian wi gover of
authonty.
The Deent ha concludd th whe th stateents may areuly qual as codenti commerial or :fial inormiion, FOIA exemption (b)(4) wi not preclude thei releae. As stated uner the stda outled in Secon 2(8) of
th lettr,
thes fidigs ar Deent-gene coclusioDS. Consuently, FOIA exempon
ths inonnation
(b)(4) caot be invoked to prlud th releae of
(f' Redactions at U32e& 1-27 - "Section Fiduu!s & Reements" You have redcted the Deparent's stment of th facts restig from the progi review an investigation. includ stteents of thse inteewed. These fis
include: th Univerty's promises of substatial compenaton when hi recters; recruter trg/motivatonal methds and succeS5 measues; trckig recruiter
comsionale saes and Sas perme; accoiit$ of curt an formi=r Univerty employees; reruter evaluation sys bonus incentve pla; use of Title IV fuds; and aleged violations foun by the Deparent.
As detaed under the stdard out1 in setion 2(e) oftls lettr, the Deparent acknowledges tht th9 inormtion ca be considered commercia or ficial in:oimaton uner the FOIA to the extent tht it relates to Apllo's operation of
its
busess. However, the Depaent ha concludd th the releae of1hs inormon would not cause substtial ha to Apollo's compettive position in th maetlace beuse th inormation generay dicuses the University's businss praces. and de:ta the fa inomiaton gathered by the De:paen dur its site visit related to the ellegcd specifio rc~iUiy violatoDl idetifed in th PRR. The detailed inomiation describes conduct tht would not be acceble-by simar intuons parcipating in the federa stent aid progrs, an no copetitive ha would be expected to arse frm releasin such inormation. Release of
the PRR is not like:ly to resut in such injur as to
9
Case 1:09-cv-01044-RJL Document 1-1
08/26/04 17: 46 FAX 2024015391
Filed 06/04/09 Page 11 of 16
It010
DEPT ED OGC
Doug R. Cox. Esque prclude th Univerty frm beig able to compete for f\ stuts in the for-profi
higher educaon ma ~MaMaet Com. v. Daltøn 974 F.Supp. 37, 38. 40 (D.D.C. i 997) ("neither the: relation of cost and pncin da nor prriet .
maagemt stsios we likly to result in egrgious inur as to disable (subm frm being) efective competitor").
You al re th follwi stteent: The actions ofUOP and th sys it ha eslid culva and innta a cOrate cutue in dece ofUOP's fiuciar duty. . uop ha crte an envionment th pu tho strng motvation of
individua ga agai its fiduci dut to the Depaent. It is one tht flau the Decnts reguatons an th prohibition aganst incentive compensaton based on enllents.
Th Dearent ha concluded tht whle these stateents may argubly qua as confden commeria or fiial inormtion, FOrA exemption (b)(4) will not prlude their releae. As stated under the stanard outled in Section 2(a) of
ths letter,
these findi ar Depart-generat coclusons. Consequey, FOIA exemption
th inon.
(b)(4) canot be ínvokfld to preclud the: rrleae of
(s:) ReutiODS at D. 30 - "Section 7 Reoiements" You have redcted the followi stteent:
In respnse to th (PRR1. UOP is requ to mae substtial an comprhensive chimge: to th salar compenation syst for its recters end their dirt supisors.
You alo rete the (3) bullet item outlinng specic documents end information that the Deparent Beeks. In accord witb:the stdar outlined in setin 2(a) above, the
figs and requiment were developed by the Deparent. and thus not obtaed from
a peron. Consequently, FOIA exempton (b)(4) canot be invoked tQ preç)ude the
releae ofthis inormtion. (h) .a.,dact0DS al ~agÇl3i-~2 - "~fition 7 Re~niirements: Documents and
InformaUon to Be Provldedu
In response to the PRR, the Deparnt outled sever item of inormaton for the University to supply. You have reda inormtion from parhs 3-10 of
th
section. hi accord with the standar outlind in secton 2(a) above, the fidins and reuirments were develope by the Deparent. and thus not obtaed frm .a peson.
10
Case 1:09-cv-01044-RJL Document 1-1
03/26/04 17: 46 FAX 2024015391
Filed 06/04/09 Page 12 of 16
DEPT ED OGC
~011
Doug R COX, Esqui Conuently, FOrA exempton (b)(4) caot be invokerj to pilude the relea oftbs
inoIIatOn. However, in ptlph eig (8) oftb section, th Deparent ideed twelve (12)
employees for whm tho University must supply pernnel files in response to th PRR
These emloyee are identified in ii char that li th naS, lwnp sum COmpa'on amounts an th date tht the compeaton wa reived. In acrd with th stda outli in secton 2(1:) above, th Desient has concluded tht inormtion to be prpely
excludale unde FOIA expton (b)(6) relat to peronal prvac. 5 U.S.C.
§ 552(b)(6).
(j Redactions - "ADDendk A: Li of Relten Idenöfed in Rert You redacted recruter naes and hi daes. in accor with the stauar outlied in
secon 2(c) above. th Deparent ha concludd th inonon to be prpely excludble uner FOIA exmption (bX6) relating to persnal pry. S U.S.C. §
552(b)(6). (j Red.dioo - "ADDen~ B: Lis of EmulO¥ for Whom Penonnel
Rerd are to be Pred"
You redaced recner naes, hir dates, and exit das. In accdace with 1: stda outlied in section 2(c) abve, th Depent has concluded tht inoron to be properly excludable under FOIA exemption (b)(6) relatig to peisona privacy. 5 V.S.C. § 552(b)(6).
(3) ExemDtion (b )(5) - Inter-ae:ency Or IDtra-af!encv Memorandums or Letels.
ai tbD8nt Proces Prilleee
FOIA exemption (b)(5) covers "inte-a¡ency or intra-ageny memoradum or letter which would not be avaible by law to a pary other th an agenoy in litigaton with the agency." 5 U.S.C. § 552(b)(S). Whe neither expandi nor crti new privileges, exemption (b )(5) inorpomte al civi discovery privieges, includi the deliberve
process privilege, the atrney-client prviege, and th attey work produc prvilege. Your recommendatons have been mad pUIuat to the deliberve process privilege of exemption (b)(5). Th purse Qfthe pnvilcge is to allow ageny
offcials to engage in
fr and open discussions of issues and to express thei view, opinons and
recommendatons withut the fear or res1nt of outside presure. In order fur the priviege to be invoke the informtion a1 issue must be both preecisiona (comi before the adopton of an agncy policy), and deliberative (a diec pa of the
deliberave prooess such that the inormation makes suggestons, or remmendations, or provides opinons on legal Or policy mats).
11
Case 1:09-cv-01044-RJL Document 1-1 08/26/0:L. 17: 46 FAX 202401.~91
Filed 06/04/09 Page 13 of 16
DEPT ED OGe
Il 012
Douglas R. Cox, Esquire As an intial matt, the PRR must meet the thshold requient of an interagen or
intra-agency communcaon. More precisely, the oommuncation would have to occu eith amng inviduas of
the Depent or betwee inividuas of th Dcpurent
an lIoth fell agency. Ho~ver. the cOur hae exed ths thhold
reuient to mclude oude coulta who are somet both praca and
necar for an agncy to ren a policy decision §a Qus v. Burau ofPrions. 804
F.2d 701 (D.C. Cir.). celt. m-tcd. jud¡m wi on othr llUDds & remanrl. 486 U.S. 1029 (1988). Th exemption does Dot ex to those wh ar seeking a bet :fom the Dept to th detieit of others such as lobbyist OJ' self-avocæs. th Inerior v.I(IAmllli Water Use prte Ass'J1 S32 U.S. 1 (2001). I)arent of
In Klamat seem Natve Amcan tnbc exchanged communcaons exing thei
views I'¡ar decisions that th Deent ofIntoor would havo to mak rega watr allocatin in th Klat River Basin The Native Amiu t:bes not only
exessed th own ineres, but also were se the govenuent to act in faor of those interests. TIie Supr Cour held tht the Natve Amercan trbe did not qlJlify as outde consultaæ to the Depar of Inteor, stag "te Tribes ar self-advocat
at the exene of others seekig beefits inquate to sais everyone." Id. at 12. The Deparent ha concludc tht th PRR does not meet .ts thold requireent,
ths IDonntion. In ths
and thus, FOIA exemon (b)(S) docs not prelude reeae of cae, the PRR wa created as a ret of
the Dearts routne monitori of
th TItle
IV Federa Student Fincial Assi program adst by th Univeity. The
PRR wa not crea for the puoses of the Depar~t reivi advice or cOJ1ultave
serces from your clien in order to rede a policy deon. Raer, the PRR speifcay st th its intent is to advie the intuon of 1f 'fidings made as a resut of
the PRRis toopcn up a dialogue betwee
th progr i:view. ¥oreve, the goal of
th PRR ca be resolve; th
the Depent an the Universty su that th fiin of
chates th Universiry as a lobbyist or self-advocate, ra th a consultat, an
thus, the delibertive process priviege of ~emption (b)(S) would not aply to preclude rcleas orthe PRR
Assug ~do tht the Univerty did meet th thold requireent of exempton (b )(5), the Dearent ha concluded tht th document itself is neither pre-decisona
nor deliberatve. A8 std in the Deparent's Progr Review Guide, "(t)he progr review reprt is'the offcial (Deparnt) nocation to the intution of the findigs discoveed durg the on-site visit. The report lis the reguatry aid statutory fiings
and e~lihes a mi ~ cae. Th~ report also speces requid oorrtive actions,
including a tie fr for intitutiona response." The 2001 Progr Review Gude. p.
IX -1. Although th program review process envsions a. dialogue betwen th
Deparent and the intitution to resolve shortcomígs idetified in th p~ and which will ulately be resolved with the Deparent, the PRR itslf is II fial document with the progr review process. It outlines the Deparent's position as a result of
12
the
Case 1:09-cv-01044-RJL Document 1-1
. .
Oa/26/0t-7: 47 FAX 20~4Q153~1
Filed 06/04/09 Page 14 of 16
DEPT ED OGC
ia 01:i
Douglas R. Cox, Esquie
progr review. It notes, as apprate, tht an intuon ha or ha not breaed its fiduciar duties unde Tite IV, an outes necsar cotive action(s). Whe the Deparent provides the Jnon with notice an an oppty to. commt, those eoniments me not submitt with th ic1 thai a ne PRR will be iisued. .
Consequently, the Depentha oonclude tht FOlA exempton (b)(S) does not prlude th releae of the PRR either in whole or in par
(4-) Exemption lb)(1) - Inorlptlon Compiled for La.w EnfORemcDt PDle8 Y Q.i leter of Ap S. 2004 alo relied upon FOIA exemtions (b)(7)(A), (b)(7)(B) an (b)(7)(C) to preoiie relea of
the PRR. Exemon 7 of1he FOIA as amed, prtew.
:fom dilosu "reords or inormtion copied for law ei puroses, but only to the exten th th producon of su law enforceent reord or inollon (A) could renably be exp~ to inteere with enorceent prceedin, (B) would deprive a pern of a righ to 8. fa 1r or an imparal adjudcation, (and) (C) coul
reoIUbly be expected to constute an unwad invason ofpers:n prvacy." 5" U.S.C. §§ 552(b)(7)(A), (b)(7)(B) an (b)(7)(C). The Dqiart ba ~nclude that exompton (b)(7) does not prelud th releae of the PRR eith in whole or in par for
the reasns set for the below. (8) ExemDtioD (b)(7) Threshold R.nilement As a thshold matt. exemption (b)(7) places the buren of prof upon the agncy to demnstrte tht the rerd in question wa compiled for a Jaw enorceent purose.
Ouinon v. FBI. 86 F.3d 1222 (D.C. Cir. 1996). The Depent disages with your charteon th the PM was compiled for a law enforceent puose. Contry to
your conclusion. the PRR is a Congsionaly maated tool use by the Deparent to car out its respnsbilties uner th Higher Education Act. The 2001 Pr21am Revew Guide, p. i. The PRR is one of may tools used by tbe Deparent in an
effort to ste a
balance beten assistig schools in improving compliane though the development of corrective acton plan an assessing liabilties resuti from non-compliance. Id. Even if th Deparent were to age tht th PRR wa: compiled for a law enorcment
purse (whch it does not), th Deparent would st fid tbt the spfic subsecons
of exemption (b)(7) ar not.applicable to preclude th PRR'i; rele.e. as discussed below. (b) Exemption (b)fillA) - Interfere with Enforeement Proceel!8
With respect to exemption (b)(7)(A), there is no evidençe th release ofth PRR could inerfere with enorcment proceedin. You have stted that release of
the PRR "may
hider or interfer with th Deparent's review - and with Apollo's and its employees
due process rights wi1hn that review." As stated earlier, the PRR represents a fixéd stop
13
Case 1:09-cv-01044-RJL Document 1-1
o .
08/26/04 17: 47 PAX 2024015391
Filed 06/04/09 Page 15 of 16
DEPT ED OGe
./
Dougl R. Cox, Esqui
in an ongoing proces. A site viit ocur, and figs were 1ler made On the viit. The PRR doe not revea the sce, dicton or na of any fuer action that
th Deparent may ta icar the Univerty. In fit, th cover letr to th FAA specy reues th Univerty "review and red to th reprt inclcati the coirctive actons tam" At most ih PRR envioll a respone frm the Univenity and tht rense seres as a catays for fucr discussion The is no way for th
Dea:ent to derm whet it wi or will not enage in an enorement prce wiout knowig the Uxuvcrity's reponse to th PRR Adonay, we regn and
acowledge your concern tht release of1he PRR "could inase the likeliood th qui
tam mlatrs or other members oftb public, suh as the mea or corpora wahdog
grups, would interf wi 1h or tant the tesony of; Apollo peronnel thei tit1~ positions. or job responibilti."
identied in the (PRR) by virte of
However, an as preousy st in seon 2(e) above, it is the Deparent's position tht thO$ inst are privay concer to the Univcrty personnL, and in order to
protect those interest such iiortion would be redaced puruat to exemption (b)(6).
Th inormaton appe on paes 2-4, paes 31-32, Appendi A: List ofRccte Emloyees for Whom Personnel Reords
ldeed in Rbit and Appendix B: Lit of
are to be Provided.
eel ExcmDtion (b)(71lB) - DeDrie a Penon of a Ril!ht to a Fai Tril or
an ImnaraJ Adiudiction With ret to exemption (b)(7(B). there is no evdenc to suggest th any indiviua University employee would be deprived of
the righ to a fa tral 01' imparal
adjudication. The PRR merely ideties the Depat's figs.
Cd) ExemDtioD (b)(7)(C) - E:Dccted to Conitite an Unwarmnted Invasion of Penona Prvai:
Wit mspec to exetttion (b)(7)(C), th Deparent ha coclude th ths exemption does not prlude release of
the PRR The Depaent ags th the Univerit
employees identied in the PRR have a privac interest in their naes, titles, lu da,
exi date and compenation amounts; howver, these prvacy intersts ar protected under exemption (bX6) of
the FOIA. Consequently, Univerity eiaployee naes, titles, hie
dates, exit dates and compensaton amounts as they appe on pages 2-4, pages 31-32,
Recruters Idetifed in Report and Apenx B: Lis ofEnployees for Whom Peronnel Recrds are to be Prvided will be rected puruat to FOIA
AppcndiA: List of
exemption (b)(6).
14
ia 014
Case 1:09-cv-01044-RJL Document 1-1
08/26/04 17: 48 FAX 2024015391
Filed 06/04/09 Page 16 of 16
DEPT ED OGC
Dougl R. Cox, EsqLÙ (5) Reuest for all FOrA Reuaeø Sel.lrl1 Auei. to t1e PRR
At th conclusion of your ,letr, you ased for "'copies of al FOIA reueir receved by th Depai see acce to the (pRR). Enclose plea fi copies of the FOIA
reuest we have recive for th Univerits PRR. (6) Conclusion In su, th Depaent di with your conclusions tht FOIA exemptons (b)(4),
(b)(S) and (b)(1) prclud rele oftb Univerity's PRR. The Deparent intends to releae the Univerty's PRR to the reuests DO late th :fve workin days frm th date oftb leter. September 2, 2004.
The Deparent ha concluded tht the employee/rete naes, titles hire da. ext
dat an compimon amunts ar prpely excludable puit to ForA e'tcmon (b)(6), and th inoraton will be reted frm the PRR Th inoraton is'found at pages 2-4. paes 31-32, Appen A: List of Reuiters Idefied in Repor a: Appe B: List of
Employees for Whom Personnel Recrd ar to be Prvide.
Th Deparent ha also concluded the Univesity's D-U-N-S Dumber.will be rete frm tho cover letter an pae 2 of
the PRR purt to exemption (b)(2). To fuer
assist you, we have provided a copy of the PRR in the form in whch it wil be releas to
the reuestrs.
Vau~_ e Van Vlandr am of Inormon Act Offcer
OCIOIRG
cc: Kent D. Talber, Esq. (DOC) 00; Jonathan A. Vogel, Esq. (DOC)
15
II 015
Filed 06/04/09 Page 1 of 16
EXHIBIT 1
Case 1:09-cv-01044-RJL Document 1-1
08/26/04
17:42 FAX 2024015391
.
Filed 06/04/09 Page 2 of 16
DEPT ED OGç
II 001
UNrrD STATES DEPARTMENT OF EDUCATION OFIlClt OF TH CHlI INFRMnON OFfC&R
AUG 2 63lQ4
Douglas R. Cox, Esqu Oibson, Dun &. Crutcher, LLP 1050 Connecticut Avenue, N.W. Washigtn, D.C. 20036-5306
Re: FOIA Reque for Prgr Review Reort
Reouest NOB. FSA/OIG/OGC-03-S3SSF: FSA-045745F: and FSA.04~S930F
Dear Mr. Cox: As one of
the Freom of Inforrtion Act Offcers for th U .S: Deparent of your ApriS, 2004
(Deparent), I am in recept of
lettr to Kent D. Talber of
Education the
the Ge Cousel (OGe). Your leter was in resp to the
Depart's Offce of
Dearent's invitaon to desigi informtion contaed in the Program Review Report (PRR), whch your client, the Apollo Grup, Inc. an its subsidi, the University of the Freedom of
Phoeni (University), conrudered exemt purUB to exempon (b)( 4) of Inormtion Act (FOIA). 5 US.C. § SS2(b)(4). The Deparent notes
that the procs envisioned by Executive: Ordc:r 12600 limits commenta and/or informaton puruat to FOlA exemption (b)(4). However,
objections to the releae of
OOC, at your request has permitted you to raise other objectons uner the FOIA (5 U.S.C. §§ 552()(S) and (b)(7)), not rc1atc:d to Executive Orer 12600. The Deparent comiiders the arguments tht you haVe" rased under the FOIA (5 U.S.C. §§ 552(b)(5) and
(b)(7)) to be adviry in nate. Upon review ild consideration of
your April
5, 2004
letter, the Deparent has
concluded th FOIA exempton (b)(4) does not support witbolditbe PRR eithr in whole or in par. The Deparent has also concluded that your recODUeoded use of
FOIA exemptions (b)(5) and (b)(7) does not support witbholding the PRR, either in
whole or in par. However, the Deparent has conclude th the recruter/employee names, titles, hie dates, c:xit dates and compenstion amQunts are properly excludale uner exemption (b)(6). 5 U.S.C. § 552(b)(6). The employee naes, daes, and
comperisaton amounts are found at pages 2-4, pages 31-32, Appendix A, an Appendx B of tlie PRR. Pages two (2) thugh ten (10) of
ths letter
will address your arguents relevant
to the
Dearent's use ofFOIA exemption (b)(4) in accord with the Executive Orde 12600 process. The rernaíder of ths letr will respond to your adviory recommendations
regarding FOIA exemptioIl (b)(5) and (b)(7).
400 MAD AVE., s.w., W"'SHINOTON. D.C. 2D202-4:io ""ll. GoY . Ou miíon ~ ~ .."'.. oqua """ ~ "'""oon iu ~ p~ odutina.iu!lsnoo ¡h",Il/i tJ Naii
Case 1:09-cv-01044-RJL Document 1-1
08/26/04 17: 42 FAX 2024015391
Filed 06/04/09 Page 3 of 16
DEPT ED OGC
Il 002
Dougl R. Cox, Esquir (1) Pro!!Øl Reew ReDort As an ùitî maer, the Deart disages with YQUl chscteon of the PRR as an "inter progr reew report" lD th normal coure, th Dearent doe not issue
"inte" PRR, since PRR idefy whateer fidi th Deparent ha mae as a
result of its reiew of a. school's records and syst. Th Deparen does, however, issue "iter" fi detetion letter when it is able to assess liabilite!l for only
cert fidi, and inteds to tae adtional tie to conclude oter figs. In such
cas, the deteron letter is cleary marke as ''inter.'' But fo purses of ths FOIA anys, th PRR is a disc fina acon; its fis oute the aleged
violations dct d'Ug the Depent's reew of the Univerity's adston of its Title IV program. In essence, th PRR resent a "fied stop" in an ongoing process of assi an insttution in its effort to comply with th law. Conseqently, we do not consider the PRR to be an ''ite'' report. Your April S, 2004
leter alo claed that th PRR is "tlwe an intey inconst,
an its release would impse masive and unai ham on Apollo, its sharholder an its employee." However, aside from ma broad, eonclusory stents, you have not presente a cognble argument un the FOIA. Secton 1099c-l(b) of
th Hier
Educaon Act afford an instituon th opportity to co~t any a.ve,
accountig or recrd-keeping err dug the progr reew process. Ths opportty is clealy identied in the CQver let to the PRR when th Deparent request th an
the PRR. It is the Dearen's
intuon "reew and respond" to the findings of
undersdig tht your cüent responded to th PRR on Mah 19, 2004, Aprill4, 2004 an May 20. 2004. Consequeny, your chalenges to the reliilty of
the PRR wee
appropriate for those earier resonses.
(2) Exempton (b)t4~ - Trade Seeai Commercia or Finucf Information
Afr a review of your redactions to 1he cover letter and PRR the Deparent has concluded that the redactions submittd by the University pursuant to exemption (b)( 4)
are not suåtable, either in whole or in par. Exemption 4 of
the FOlA protets frm disctosue ''te sec an commerial or
ficial inormtion obtaed nom a person (that is) privileged or confdential." 5 U.S.C. § 552(b)(4). In assessing th confdential nati of ths inrmtion, we fist
detee whether it was a requied or voluntar submision to the Deparent. The
Depaint has concluded tht the inormaton submied by the University, a. contaned in the PR. reprsents a required susion because it js necessiuy gathered and
reviewed pursut to the Deparent's carng out of an on-site visit and/or review of an
2
Case 1:09-cv-01044-RJL Document 1-1
08/a6/~l 17: 43 PAX _2024015391
Filed 06/04/09 Page 4 of 16
DEPT ED OGe
II 003
Dougas R. Cox, Esqui intuonal progr i "(1he overal asscssmmt of an inon's adinistrative and ñmuiçj~ elplllity is.det by exing an intuon's FSA policies, prcedures
an record." 'T 2001 Pr2n Review Oidc. p. 1-3. Coequey. when the
Dearent reviews an instition as pa of it moniri tictiOnB, the insttuOJ mut provide the Deparent with access to cer informion so that the Dearent may ca out an efectve an effcient review. 34 CFR 668.2. Therfore, th innnaton, as conted in the PRR is a requid submsion.
Becus th Deparent bas concludd that th Univerty's inrmtion, as contaed in th PRR wa a req\Jd submion, the ìnormon wi be withd if its releae will imai the Depaent's abili to obt necessar inmiaion in the fi Or will
the peron from whom the
oaue substtial ha to the competitive position of
inormaton wa obtaed National Par & Conscron Ass'n v. Morton. 498 F.2d 756
th inormaton will not (D.C. eir. i 974). The Deparent ha conclude that release of impai the Depart's abilty to obta necsar inormtion. in the fue. As par of the Title IV prgram review, th Deparent must gBIer an amyz instutiona data
and records, an identify any wees in the intuon's predures for admer program fwds. The 200 1 Pr~am Review Guide. p. I-I The Deparnt will contiue
to exercise its auority to obta such inrmation in the :f, notwth th
release of the PRR. Therfore. the maer at issue is whet releas of ths inoraton wil caus subst ha to the Univerty's compettive position in th maetpla. the submitt. the D.C.
In anyzg the "sustallia to the comptitive position" of
Circut ha "empha" that tle "importt point for (th 1 compeiti ha (anysis) in th POIA contex. . . is th it is lite to ha flowi frm the affirmative use of
prprita inormaton by comiitito" an that ths "should not be taen to mean
simply any injur to competitive position, as might flow frm customer or employee
disgntlement." Public Citin Heath Reseach Group v. FDA at aI.. 704 F2d 1280, 1291-(D.C. eir. 1983) (enphašis a.dde). Ii other woro, the FOlA caot prtect the Univerity from reguar maketplace competion frm oth for-prfit intions of higher education tht compete for stdents. Your Apn15, 2004 lettr outlined two (2) caegones of proteted inormation contaied m the PRR With reard to th fist category, "the organatona stctue of (th University), the orgational chai of comm for recrueis or enollent counselol',
the positions and responsbilties of the varous employees involved in the stent retig process, and the technques and metodologies used by (the Univerity) to 1Ik stent enrollents." you stated the following:
i lfthe inotatiDn had been deemed 10 have been submIttd vol\lly, the Depanent s analysis on the release of
the PR under exemption (b)(4) would be in accord wit Crcal Mass En2V Prolect Y. NRC.
975 F.2d 871 (D.C. Cir. 1992).
3
Case 1:09-cv-01044-RJL Document 1-1
08/26/04 17: 43 FAX 2024015391
Filed 06/04/09 Page 5 of 16
DllP: ED OGç.
ia 004
Douglas R. Cox, Esqui
To relea to the public ths setive coinial inrmtion would alw A pallo' s..cOIS. to: (1) scru Apollo' 5 metodology
for re and enrll st; (2) obsere Apollo's make an reti $tatgics includ its teeug im st
techques; (3) see faily de inormaton abaApollo's organtiona stct, its pernn. the fwons these peonnel
perm and thir relaton to one iloth in the orgizaona ciai of commd. and (4) otherse have an "ide look" at how Apollo compe for, atts, and mata its 5tÙl. 'I category of
Prteed Inormon reflects Apollo's ap to ru a UJverty sy$m efciently aud effecvely. It too, re in¡euity and orgialty regadig how to ret quaifed sts to the
unerty ljettg. It is the product of yes of exerene an its disçlosure would seriou:ly unrme Apollo's comptive advantae by allowig competitors to have access to Apollo's idea. processes, intern stict, and metdologies tht they otherise
would not have access to or would have ha to spend consideable time and fu to develop on their own.
Whe you have out th h. as stte above, you hiive not demnstrate in your
copondenCè how the st li would occur wi th Specic release of th
category of infontion Demonstiox. of copettive ha under FOIA exemption
(b)(4) requirs more than conclusory allegations ofba ~ Public Citizen Health Reearh Grup v. FDA. 2000 WL 34262802 (D.D.C. 2000); Public Citi Heath
Researh Group v. FDA, 185 F.3d 898 (D.C. Cir. 1999); TR COrD. V. NI 10 F.Supp.2d. lOS7 (E.D. Mo. 1998). The use ofFOIA exempton CbX4) requis a
the .'specfic:, credible, an lily reons'" why the releae oftb
demonsation of
category of inonnation would actuly result in competitive injur to Apollo. Le v. FDIC. 923 F.Supp. 451. 4SS (V.BoO,C. S.D.NY 1996. Mere pMisey. yon have not demonsate wi spc:fieity how th releae of "the orgaona stct of I the
University), the organiutional ch of command for recniter or eiiollment counelors, the varous employees involved in the student reruting process, an, the technques an methodologies used by (the University) to
the positions and responsibilties of
trck studet enollents" wid its afve use by a competitor would cause substatial har to Apollo's oompetitive position amongst the for-pro::t higher education
insttutions. Your April
proteted inornon as
5, 2004 letter outlned a second category of
"inomition concerng employee compnsation and the macer in whch em.p1oyee compensaton is pmportedly caloulate" You furer sted tht the reeas of
inormation would cause competitive har because, "to disclose the aleged
4
th
Case 1:09-cv-01044-RJL Document 1-1
08/26/04 17: 44 FAX 2024015391
Filed 06/04/09 Page 6 of 16
DEPT ED OGe
Douglas R Co:i, Esqui compeaton stcts of Apollo's employees WOd alow competitors to cOpy
Apllo's compenaton sy and to us thr knowledge of Apollo's compon paka¡s to rerut Apollo employees, may of whom posses si.cant and valuale
intutiona knwledge. Thus Apollo considers its copøon system to involve
highy confdeal commercia and fii: inomon the discosure of whch would
cause Ilubstaal ha to Apllo's cometive position." , As an inti matt, th Deparent notes th you refer to Apollo's employee .
compaton str as "aleged." To ar¡u th the relea of Apollo's employee compaton st would caue substa ha to its competitive position, whie alo citi its exien as "aleged" is innsistet. You hEe no demon.ed how the
a:tive 'Ue of "inormtion concrn employe compeaton an the maer in
wlúch employees compention Í5 puorty cacuated" by a competor would cause substti ha to Apollo's compettive position.
the PRR ideitig an redactig
You alo provided the Depent with a. copy of
those SecolU, whch you a$ser are expt from disclosu "puruant to Exemption 4 and the Ti-e Secrts Act." Below, th Deparent wi adess each of your proposed
retions.
~
(a) RedactioD8 to PRR's Cover Letter frm Donna Witmau to Todd S.
You have redcted the followig inormation:
Th rep contans a serous fidi regardi the school's its fiduciar dut; specifcaly th the
substatial brh of
Univerty of Phoeni (UOP) sytematicaly engaes in actions degned to miea the Deparent of Edl.atQn and to evade detecton of it: improper incentive compentin syste for those
involved in recruti activities. Th fidi of noncoinpliance is refered to th applicable reguations. and specific: the acion
require:d to comply with the regulations and statutes. Thse staements do not conta confdential commercial or fianial inrmtion. Examples ofitems regad as commercial or ficial inonntion include: busÍness
sales sttistics: resch dat: tehncal design; cusomer an supplier list; profit and loss data; overea an opering cost; and inormation 00 financial condition." U.S. Dept. of Jusce. Offce of Inormon Policy. Freed of Inoron Ac Guide & Prlvacv Act Overvew (My ;2000 ed.) (citing Guf & Wester Inus. v. Unite States. 61~ F.2d S27 (D.C. Ci. 1979) andcptllImp.TS Union v. VA 301 F. Supp. 796 (S.D.N.Y. 19(9), annea di5mised as moot. 436 F.2d 1363 (2d eir. 1971)). These statements represent a bnef syopsis of
the: Depiients fidin¡s, and do not represent commercial
5
ll005
Case 1:09-cv-01044-RJL Document 1-1
08/28(Q~ 17:44.FAX 20240153n1
Filed 06/04/09 Page 7 of 16
~006
DEPT ED OGe
DoqJas R. Cox, Esqui or fiancial informtion eo"Yisione by,the FOIA st. Morever, FOIA oxention
(b)( 4) reui that the confdenti commerial or ficial :iormaton be obta frm a person. 5 U.S:C. § 5S2()(4). Th term "J'son" ref to a wide rae of eities,
includg cooraons. ~ Nader v. FDIC. 92 F.3d 93 (2 eir. 1996). Howeer, the
inimtion at issue was generte byth fede goverJDt an no "obted frm a peson." Such inormation is excluded frm exemption (b)(4) protecn. ~Mavda v. nw 254 F.Supp.2d 23 (D.D.C.2003). Whe these statents ar baed upn informtion provided by the Univerty, the conclueion foun in theso stts ar the
Deparents oonclusons and therfore. were not "obta from a peson"
thes
Consently, FOIA exempton (b)(4) canot be invoked to prclude the releae of
stments.
However, the cover lett does iden the University's D-U -N-S numbe. As you may knw, th D-U-N-S numbe is th num by which an intion ca dr down fu
that have been awided to it by the Deparen. The Dearent ha conclude th the D-U-N-S number is exempt from dislosure uner the FOIA purt to exempton
predomitly
(b)(2). 5 U.S.C. § S52(b)(2). Ths exption precluds th disclosu of
which would rik the
intern matters of a substatial natu the disclosure of
circumvention of a st or Deparent reguation. The Deparent has concluded that th releae of Apollo's D-U-N-$ nunber would plae th Depalent's ficia
datbaes at nsk, th pcmitt the pote unori.drw down offu. The Dthe PRR.
U-N-S number wil be redacte frm the cover letter as well as on page 2 of
(b) Table or Contents Reactons
the Uiùverity's
Your redacons enmpass the Depent's genc stents of
the the University's recruter sysm an statements ofile alleged
rerote compenaton system. Thoyalso include more de1ed stements of Deparen's analysis of
violaton, foun. Aga these sttements do not cotan eodenti co:mrcal or ficial inormtion as defied in secon 2(a) oftbs lett. Consequently, FOIA exemption (b)(4) caot be invoked to prelUde the release of
the Depaent's generic
sttemonts regaidig the University's recriter compenson system.
(c) Redac:tioJU at Dae:es 2-4 - "InstitionAl Review Data Shee't'
You have redcted a char listg the Uiiversity's Title: N pro¡rs and its advane system of
payment for fical yea 1999-2003. This cha outles th amount offedera.
fuds Apollo has received in order to suppor its Title IV program frm fiscal year 1999 though fisca yea 2003. Th Deparent acknowledges tht ths inormtin can be
consdered commercial or fwaJaI inormon under the FOlA to the extt tht it relates to Apollo's operaon of its busess and possibly impacts it$ s1:egy for sekig out and securing non-federcU funds. Public Citien Health Researh' Group v. FDA, 704 FOIA exemption (b)(4) are to be given their
F.2d 1280, 1290 (D.C;. Cir. 1983)(temis of
6
Case 1:09-cv-01044-RJL Document 1-1
08/26/04 17: 44 FAX 2024015391
Filed 06/04/09 Page 8 of 16
DEPT ED OGC
II 007
Dougl R, COX, Esui Boar; S88
"ordmeanin~"); ~mAmerèanAiline. InC. v. N~ona Medon
F.2d 863, 870 (211 Cir. 1978) (citli Getman v. NLRBi 450 F.2d 670, 673 (D.C. Cir.
1971 ))(inoI'on is commerial if in an of itself it seres' a commercial function or is
of a commeria nat); Waslùlrn Post Co. v. im. 690 F.2d 252 (D.e. Ci. 1982) th is :fcial intest in it). However, the Deparen ba
(inormaton is ficial if
concluded th the release oftbs infoon would not cae substtial han to Apollo's competive position in the makela becuse it idntifies the Title IV prgrs for which the Univerty was eligible in fisca yea 1999-2003, and th amowit
those progn. Th inormaton does not revea
offtds receved un eah of
anyt relatve to the University an the operatons of its businss. As a pracal matt th is a stong public interes in knwi how th Deparent alocates Title N
fuds to varous educatona institution. Consuey, FOI exemption (b)(4) canot be inoked to prelude th relea of an its adva system of
th ch list the University's TItle IV progrs payment fo fisc yes 1999-2003.
Univerty offcials (an their titles) who were
You have al re a cha of
inteiewe durg the program reew at the Phoen On-Line, San Jose, Sa Fracisco, San Mateo. Livermore and, Oakand capuss, as well as a nottion rega the intervew of fo:nr Univerty employe offsite an employees who chose not to ievea
their idc.tities. Based upn the sam stad as cite in seon 2(a) of ths leter, the Depaent ha a.ga conclud th th inrmaton does not quait as commercial 01 ficial inormtion
"tt is excludble put to exempti (b)(4). However, as stated
prviously, the Deparnt ha conoluded th employee na and titles ar properly ex.cludale under exemption (b)(6). 5 U.S.C. § SS2(b)(6). FOrA exemon (b)(6)
pennts the Deparent to withold inrmaton about indiviuas in "personnel and medica fies and siinar fi" when th disclosur of suh inormaton "would consttute
a clealy unwated invaion ofpen privay." In dcg wheer releae of th information would consttute a clealy unwaranted invason of persona privay, One must identi and balance an exsti_proectible prvacy interest aga the public inteest in disclos\Qe, if any. In adtion, the identiable public interest must be one that
sneds light on the Depart's operations. In ths case, the University employees have a privacy inter in thei naes and
positions. However, there is also a public interest in knwi how the Deparent caes out its obligation unde Title IV. More specifically, the public ha an interes in knowig how the Deparent monitors recipients of
Title IV fu for compliance with
the Hier EducClon Act. The Deparent ha concuded tI the UIuvenity's employees' priacy intersts in their names an positions is outwighed by t1 public's inteest in knowig how th Deparent haes its Title IV responsibilties because the
public is interested in kiowig tht the Deparent is i: the necsar steps to fu,
ita sttory obliaations. The public is not necsary inter in knowig which specific person was inteewed fo puroses of cr the PRR Consuetly,
7
Case 1:09-cv-01044-RJL Document 1-1
08/26/04 17: 45 FAX 2024015391
Filed 06/04/09 Page 9 of 16
DEPT ED OGe
ia 008
Doug R. Cox, Esquie exempton (b)(6) is applicale to preclude the releae of
the Dames an positions oftJe
inteewed University emloyees, ctnent and fanner. At the en of page 4 of
th PRR you red the followig stteent:
The reiewer alo intervewed fomier UOP employees off site as well
IS addtiona curnt employees who do no wat their identies
reeaed for fe oflosi th jobs.
Th Deparent has concluded th ths sentence does Dot conta my confden
commerc or fiial inormon. an does not ident a prtcble pnvacy interest. Consequently, ths setece is releaable under the: FOIA. (ei Redactions at p*te 6 - ~S~tion 2.4 Growth ofEnrollmcits &
Revenues"
You have reded portons of a ch which list the Univerity's tota degree students, on-line stdents and net I'VCnue for 1991-2003, the UnivCJjty's coiporate goal for 2002,
and a sttet oftha frequeny with which the Univerity evuas its recte'
perrmance and awar of sal incres. Rega the lisg of
the University's tota d.egree stents, on-lie stnts and net
revenue for 1991~2003, th Deparent acwledges th ths inormation ca be
considerd commcial or finaial inormon according to the stad outlined in section Z( c) of tlus lett, i.e. to the extent that it relates to Apollo's operation of its
business and possibly impats its stat~gy for seking out and see'l Don-fed fuds. this information would not
However, th Dearent has conclude th the relea of
cause substantial ha to Apollo's copetitive position in th makelace becuse it
merely represets th Univerty's grwt over a twlve-year penod and does not identif
any deils as to how Apollo achieved th grwt. Consntly, FOIA exempon ths inormaton.
(b)(4) cait be invoked to prclude the release of
Regardin die University's statmet ofim corporate goal for 2002, "(tJhe UOP 2002 corporae: goal wa '5-5-5': Five Year, Five Milion Students and Five Billion Dollars," the Depaent ha concluded that ile release oftls inormtion would not cause ham to Apollo's competitive position because it is does not revea any detals as to how
Apollo would go about achievi th goal. Moreover, the University's corpora goal is merely a wih of what it would lie to achieve withi It five-yea period; there is no guantee tht diis goal would be met Consequently, FOIA exemtion (b)(4) caiot be invoked to prelude the release of
this IInntion.
As to the reruiter evaluation infonnaton, the Deparent has concluded that the release of
this inormation would not caus hii to Apollo's competitive position hecalle it is a
8
Case 1:09-cv-01044-RJL Document 1-1
08/26/04 17: 45 FAX 2024015391
Filed 06/04/09 Page 10 of 16
DEPT ED OGC
ll 009
Doula R. Cox, Eiqui how oft the revews are completed an do not detai the revew proces
stent of
itself If a compettof wer to reeive ths inrmtioD, it woul be lite to knowg the frquey of reviews bu not to how th fruen of th reews enabled th
Univer to aceve its succs in th maketla. ConsuentYt FOIA exemon ths infonntion.
(b)( 4) cant be invoked to preclude th releae of
(e) Reactoiii at iuU!eø 6-7 - "Seeon 3 SeGue of Review"
You have rcdawd the followi inormaon:
Dun the visit, ar ofnox-cnilian we nod. The findig of non-compliane is referenc -to the aplicale reatons. The
fidi spcifies th actons to be taen by UOP to br operons the financial aid prgr into complian wi gover of
authonty.
The Deent ha concludd th whe th stateents may areuly qual as codenti commerial or :fial inormiion, FOIA exemption (b)(4) wi not preclude thei releae. As stated uner the stda outled in Secon 2(8) of
th lettr,
thes fidigs ar Deent-gene coclusioDS. Consuently, FOIA exempon
ths inonnation
(b)(4) caot be invoked to prlud th releae of
(f' Redactions at U32e& 1-27 - "Section Fiduu!s & Reements" You have redcted the Deparent's stment of th facts restig from the progi review an investigation. includ stteents of thse inteewed. These fis
include: th Univerty's promises of substatial compenaton when hi recters; recruter trg/motivatonal methds and succeS5 measues; trckig recruiter
comsionale saes and Sas perme; accoiit$ of curt an formi=r Univerty employees; reruter evaluation sys bonus incentve pla; use of Title IV fuds; and aleged violations foun by the Deparent.
As detaed under the stdard out1 in setion 2(e) oftls lettr, the Deparent acknowledges tht th9 inormtion ca be considered commercia or ficial in:oimaton uner the FOIA to the extent tht it relates to Apllo's operation of
its
busess. However, the Depaent ha concludd th the releae of1hs inormon would not cause substtial ha to Apollo's compettive position in th maetlace beuse th inormation generay dicuses the University's businss praces. and de:ta the fa inomiaton gathered by the De:paen dur its site visit related to the ellegcd specifio rc~iUiy violatoDl idetifed in th PRR. The detailed inomiation describes conduct tht would not be acceble-by simar intuons parcipating in the federa stent aid progrs, an no copetitive ha would be expected to arse frm releasin such inormation. Release of
the PRR is not like:ly to resut in such injur as to
9
Case 1:09-cv-01044-RJL Document 1-1
08/26/04 17: 46 FAX 2024015391
Filed 06/04/09 Page 11 of 16
It010
DEPT ED OGC
Doug R. Cox. Esque prclude th Univerty frm beig able to compete for f\ stuts in the for-profi
higher educaon ma ~MaMaet Com. v. Daltøn 974 F.Supp. 37, 38. 40 (D.D.C. i 997) ("neither the: relation of cost and pncin da nor prriet .
maagemt stsios we likly to result in egrgious inur as to disable (subm frm being) efective competitor").
You al re th follwi stteent: The actions ofUOP and th sys it ha eslid culva and innta a cOrate cutue in dece ofUOP's fiuciar duty. . uop ha crte an envionment th pu tho strng motvation of
individua ga agai its fiduci dut to the Depaent. It is one tht flau the Decnts reguatons an th prohibition aganst incentive compensaton based on enllents.
Th Dearent ha concluded tht whle these stateents may argubly qua as confden commeria or fiial inormtion, FOrA exemption (b)(4) will not prlude their releae. As stated under the stanard outled in Section 2(a) of
ths letter,
these findi ar Depart-generat coclusons. Consequey, FOIA exemption
th inon.
(b)(4) canot be ínvokfld to preclud the: rrleae of
(s:) ReutiODS at D. 30 - "Section 7 Reoiements" You have redcted the followi stteent:
In respnse to th (PRR1. UOP is requ to mae substtial an comprhensive chimge: to th salar compenation syst for its recters end their dirt supisors.
You alo rete the (3) bullet item outlinng specic documents end information that the Deparent Beeks. In accord witb:the stdar outlined in setin 2(a) above, the
figs and requiment were developed by the Deparent. and thus not obtaed from
a peron. Consequently, FOIA exempton (b)(4) canot be invoked tQ preç)ude the
releae ofthis inormtion. (h) .a.,dact0DS al ~agÇl3i-~2 - "~fition 7 Re~niirements: Documents and
InformaUon to Be Provldedu
In response to the PRR, the Deparnt outled sever item of inormaton for the University to supply. You have reda inormtion from parhs 3-10 of
th
section. hi accord with the standar outlind in secton 2(a) above, the fidins and reuirments were develope by the Deparent. and thus not obtaed frm .a peson.
10
Case 1:09-cv-01044-RJL Document 1-1
03/26/04 17: 46 FAX 2024015391
Filed 06/04/09 Page 12 of 16
DEPT ED OGC
~011
Doug R COX, Esqui Conuently, FOrA exempton (b)(4) caot be invokerj to pilude the relea oftbs
inoIIatOn. However, in ptlph eig (8) oftb section, th Deparent ideed twelve (12)
employees for whm tho University must supply pernnel files in response to th PRR
These emloyee are identified in ii char that li th naS, lwnp sum COmpa'on amounts an th date tht the compeaton wa reived. In acrd with th stda outli in secton 2(1:) above, th Desient has concluded tht inormtion to be prpely
excludale unde FOIA expton (b)(6) relat to peronal prvac. 5 U.S.C.
§ 552(b)(6).
(j Redactions - "ADDendk A: Li of Relten Idenöfed in Rert You redacted recruter naes and hi daes. in accor with the stauar outlied in
secon 2(c) above. th Deparent ha concludd th inonon to be prpely excludble uner FOIA exmption (bX6) relating to persnal pry. S U.S.C. §
552(b)(6). (j Red.dioo - "ADDen~ B: Lis of EmulO¥ for Whom Penonnel
Rerd are to be Pred"
You redaced recner naes, hir dates, and exit das. In accdace with 1: stda outlied in section 2(c) abve, th Depent has concluded tht inoron to be properly excludable under FOIA exemption (b)(6) relatig to peisona privacy. 5 V.S.C. § 552(b)(6).
(3) ExemDtion (b )(5) - Inter-ae:ency Or IDtra-af!encv Memorandums or Letels.
ai tbD8nt Proces Prilleee
FOIA exemption (b)(5) covers "inte-a¡ency or intra-ageny memoradum or letter which would not be avaible by law to a pary other th an agenoy in litigaton with the agency." 5 U.S.C. § 552(b)(S). Whe neither expandi nor crti new privileges, exemption (b )(5) inorpomte al civi discovery privieges, includi the deliberve
process privilege, the atrney-client prviege, and th attey work produc prvilege. Your recommendatons have been mad pUIuat to the deliberve process privilege of exemption (b)(5). Th purse Qfthe pnvilcge is to allow ageny
offcials to engage in
fr and open discussions of issues and to express thei view, opinons and
recommendatons withut the fear or res1nt of outside presure. In order fur the priviege to be invoke the informtion a1 issue must be both preecisiona (comi before the adopton of an agncy policy), and deliberative (a diec pa of the
deliberave prooess such that the inormation makes suggestons, or remmendations, or provides opinons on legal Or policy mats).
11
Case 1:09-cv-01044-RJL Document 1-1 08/26/0:L. 17: 46 FAX 202401.~91
Filed 06/04/09 Page 13 of 16
DEPT ED OGe
Il 012
Douglas R. Cox, Esquire As an intial matt, the PRR must meet the thshold requient of an interagen or
intra-agency communcaon. More precisely, the oommuncation would have to occu eith amng inviduas of
the Depent or betwee inividuas of th Dcpurent
an lIoth fell agency. Ho~ver. the cOur hae exed ths thhold
reuient to mclude oude coulta who are somet both praca and
necar for an agncy to ren a policy decision §a Qus v. Burau ofPrions. 804
F.2d 701 (D.C. Cir.). celt. m-tcd. jud¡m wi on othr llUDds & remanrl. 486 U.S. 1029 (1988). Th exemption does Dot ex to those wh ar seeking a bet :fom the Dept to th detieit of others such as lobbyist OJ' self-avocæs. th Inerior v.I(IAmllli Water Use prte Ass'J1 S32 U.S. 1 (2001). I)arent of
In Klamat seem Natve Amcan tnbc exchanged communcaons exing thei
views I'¡ar decisions that th Deent ofIntoor would havo to mak rega watr allocatin in th Klat River Basin The Native Amiu t:bes not only
exessed th own ineres, but also were se the govenuent to act in faor of those interests. TIie Supr Cour held tht the Natve Amercan trbe did not qlJlify as outde consultaæ to the Depar of Inteor, stag "te Tribes ar self-advocat
at the exene of others seekig beefits inquate to sais everyone." Id. at 12. The Deparent ha concludc tht th PRR does not meet .ts thold requireent,
ths IDonntion. In ths
and thus, FOIA exemon (b)(S) docs not prelude reeae of cae, the PRR wa created as a ret of
the Dearts routne monitori of
th TItle
IV Federa Student Fincial Assi program adst by th Univeity. The
PRR wa not crea for the puoses of the Depar~t reivi advice or cOJ1ultave
serces from your clien in order to rede a policy deon. Raer, the PRR speifcay st th its intent is to advie the intuon of 1f 'fidings made as a resut of
the PRRis toopcn up a dialogue betwee
th progr i:view. ¥oreve, the goal of
th PRR ca be resolve; th
the Depent an the Universty su that th fiin of
chates th Universiry as a lobbyist or self-advocate, ra th a consultat, an
thus, the delibertive process priviege of ~emption (b)(S) would not aply to preclude rcleas orthe PRR
Assug ~do tht the Univerty did meet th thold requireent of exempton (b )(5), the Dearent ha concluded tht th document itself is neither pre-decisona
nor deliberatve. A8 std in the Deparent's Progr Review Guide, "(t)he progr review reprt is'the offcial (Deparnt) nocation to the intution of the findigs discoveed durg the on-site visit. The report lis the reguatry aid statutory fiings
and e~lihes a mi ~ cae. Th~ report also speces requid oorrtive actions,
including a tie fr for intitutiona response." The 2001 Progr Review Gude. p.
IX -1. Although th program review process envsions a. dialogue betwen th
Deparent and the intitution to resolve shortcomígs idetified in th p~ and which will ulately be resolved with the Deparent, the PRR itslf is II fial document with the progr review process. It outlines the Deparent's position as a result of
12
the
Case 1:09-cv-01044-RJL Document 1-1
. .
Oa/26/0t-7: 47 FAX 20~4Q153~1
Filed 06/04/09 Page 14 of 16
DEPT ED OGC
ia 01:i
Douglas R. Cox, Esquie
progr review. It notes, as apprate, tht an intuon ha or ha not breaed its fiduciar duties unde Tite IV, an outes necsar cotive action(s). Whe the Deparent provides the Jnon with notice an an oppty to. commt, those eoniments me not submitt with th ic1 thai a ne PRR will be iisued. .
Consequently, the Depentha oonclude tht FOlA exempton (b)(S) does not prlude th releae of the PRR either in whole or in par
(4-) Exemption lb)(1) - Inorlptlon Compiled for La.w EnfORemcDt PDle8 Y Q.i leter of Ap S. 2004 alo relied upon FOIA exemtions (b)(7)(A), (b)(7)(B) an (b)(7)(C) to preoiie relea of
the PRR. Exemon 7 of1he FOIA as amed, prtew.
:fom dilosu "reords or inormtion copied for law ei puroses, but only to the exten th th producon of su law enforceent reord or inollon (A) could renably be exp~ to inteere with enorceent prceedin, (B) would deprive a pern of a righ to 8. fa 1r or an imparal adjudcation, (and) (C) coul
reoIUbly be expected to constute an unwad invason ofpers:n prvacy." 5" U.S.C. §§ 552(b)(7)(A), (b)(7)(B) an (b)(7)(C). The Dqiart ba ~nclude that exompton (b)(7) does not prelud th releae of the PRR eith in whole or in par for
the reasns set for the below. (8) ExemDtioD (b)(7) Threshold R.nilement As a thshold matt. exemption (b)(7) places the buren of prof upon the agncy to demnstrte tht the rerd in question wa compiled for a Jaw enorceent purose.
Ouinon v. FBI. 86 F.3d 1222 (D.C. Cir. 1996). The Depent disages with your charteon th the PM was compiled for a law enforceent puose. Contry to
your conclusion. the PRR is a Congsionaly maated tool use by the Deparent to car out its respnsbilties uner th Higher Education Act. The 2001 Pr21am Revew Guide, p. i. The PRR is one of may tools used by tbe Deparent in an
effort to ste a
balance beten assistig schools in improving compliane though the development of corrective acton plan an assessing liabilties resuti from non-compliance. Id. Even if th Deparent were to age tht th PRR wa: compiled for a law enorcment
purse (whch it does not), th Deparent would st fid tbt the spfic subsecons
of exemption (b)(7) ar not.applicable to preclude th PRR'i; rele.e. as discussed below. (b) Exemption (b)fillA) - Interfere with Enforeement Proceel!8
With respect to exemption (b)(7)(A), there is no evidençe th release ofth PRR could inerfere with enorcment proceedin. You have stted that release of
the PRR "may
hider or interfer with th Deparent's review - and with Apollo's and its employees
due process rights wi1hn that review." As stated earlier, the PRR represents a fixéd stop
13
Case 1:09-cv-01044-RJL Document 1-1
o .
08/26/04 17: 47 PAX 2024015391
Filed 06/04/09 Page 15 of 16
DEPT ED OGe
./
Dougl R. Cox, Esqui
in an ongoing proces. A site viit ocur, and figs were 1ler made On the viit. The PRR doe not revea the sce, dicton or na of any fuer action that
th Deparent may ta icar the Univerty. In fit, th cover letr to th FAA specy reues th Univerty "review and red to th reprt inclcati the coirctive actons tam" At most ih PRR envioll a respone frm the Univenity and tht rense seres as a catays for fucr discussion The is no way for th
Dea:ent to derm whet it wi or will not enage in an enorement prce wiout knowig the Uxuvcrity's reponse to th PRR Adonay, we regn and
acowledge your concern tht release of1he PRR "could inase the likeliood th qui
tam mlatrs or other members oftb public, suh as the mea or corpora wahdog
grups, would interf wi 1h or tant the tesony of; Apollo peronnel thei tit1~ positions. or job responibilti."
identied in the (PRR) by virte of
However, an as preousy st in seon 2(e) above, it is the Deparent's position tht thO$ inst are privay concer to the Univcrty personnL, and in order to
protect those interest such iiortion would be redaced puruat to exemption (b)(6).
Th inormaton appe on paes 2-4, paes 31-32, Appendi A: List ofRccte Emloyees for Whom Personnel Reords
ldeed in Rbit and Appendix B: Lit of
are to be Provided.
eel ExcmDtion (b)(71lB) - DeDrie a Penon of a Ril!ht to a Fai Tril or
an ImnaraJ Adiudiction With ret to exemption (b)(7(B). there is no evdenc to suggest th any indiviua University employee would be deprived of
the righ to a fa tral 01' imparal
adjudication. The PRR merely ideties the Depat's figs.
Cd) ExemDtioD (b)(7)(C) - E:Dccted to Conitite an Unwarmnted Invasion of Penona Prvai:
Wit mspec to exetttion (b)(7)(C), th Deparent ha coclude th ths exemption does not prlude release of
the PRR The Depaent ags th the Univerit
employees identied in the PRR have a privac interest in their naes, titles, lu da,
exi date and compenation amounts; howver, these prvacy intersts ar protected under exemption (bX6) of
the FOIA. Consequently, Univerity eiaployee naes, titles, hie
dates, exit dates and compensaton amounts as they appe on pages 2-4, pages 31-32,
Recruters Idetifed in Report and Apenx B: Lis ofEnployees for Whom Peronnel Recrds are to be Prvided will be rected puruat to FOIA
AppcndiA: List of
exemption (b)(6).
14
ia 014
Case 1:09-cv-01044-RJL Document 1-1
08/26/04 17: 48 FAX 2024015391
Filed 06/04/09 Page 16 of 16
DEPT ED OGC
Dougl R. Cox, EsqLÙ (5) Reuest for all FOrA Reuaeø Sel.lrl1 Auei. to t1e PRR
At th conclusion of your ,letr, you ased for "'copies of al FOIA reueir receved by th Depai see acce to the (pRR). Enclose plea fi copies of the FOIA
reuest we have recive for th Univerits PRR. (6) Conclusion In su, th Depaent di with your conclusions tht FOIA exemptons (b)(4),
(b)(S) and (b)(1) prclud rele oftb Univerity's PRR. The Deparent intends to releae the Univerty's PRR to the reuests DO late th :fve workin days frm th date oftb leter. September 2, 2004.
The Deparent ha concluded tht the employee/rete naes, titles hire da. ext
dat an compimon amunts ar prpely excludable puit to ForA e'tcmon (b)(6), and th inoraton will be reted frm the PRR Th inoraton is'found at pages 2-4. paes 31-32, Appen A: List of Reuiters Idefied in Repor a: Appe B: List of
Employees for Whom Personnel Recrd ar to be Prvide.
Th Deparent ha also concluded the Univesity's D-U-N-S Dumber.will be rete frm tho cover letter an pae 2 of
the PRR purt to exemption (b)(2). To fuer
assist you, we have provided a copy of the PRR in the form in whch it wil be releas to
the reuestrs.
Vau~_ e Van Vlandr am of Inormon Act Offcer
OCIOIRG
cc: Kent D. Talber, Esq. (DOC) 00; Jonathan A. Vogel, Esq. (DOC)
15
II 015
