Case 1:10-cv-01712-RMC Document 7-6 Filed 02/16/11 Page 1 of 4

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
CITIZENS FOR RESPONSIBILITY >

AND ETHICS IN WASHINGTON >

vs. > No. 10-01712

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

>

I, Leigh Arsenault, declare as follows;

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

Education. I serve as a Policy Advisor in the Office of the

Undersecretary (OUS). Our office is located at 400 Maryland Ave.

SW, Washington, DC, 20202.

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

declaration.

3. On August 18, 2010, OUS received a letter requesting

information pursuant to the Freedom of Information Act, 5 U.S.C. §

552, et seq. The request for information is dated July 23, 2010.

Ex 1.

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

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

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

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

OUS's search for records responsive to this request.

5. The request for information asks for uany and all

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

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

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

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eleven named entities and/or individuals. Ex 1. On October 25,

2010, Ms. Weismann clarified the scope of her request by informing

the Department that "to the extent that [her] request seeks

internal Departmental communications regarding for-profit

education, [she is] seeking only internal communications

regarding any Departmental communications with the outside

entities listed in [her] ForA request. It Ex 2.

6. OUS oversees policies, programs, and activities related

to postsecondary education, vocational and adult education, and

federal student aid. OUS was involved in for-profit

education/gainful employment regulation process in these

capacities.

7. OUS identified Robert Shireman and James Kvaal as the

primary individuals who would likely have records responsive to

this request. Mr. Shireman served as the Deputy Undersecretary

of Education within OUS from April 20, 2009 until July 3, 2010.

Mr. Kvaal served as Senior Advisor to the Under Secretary from

June 1, 2010 and assumed the role of Deputy Under Secretary on

July 4, 2010. There are no other individuals in OUS who are

reasonably likely to have records responsive to this request that

have not been captured in this search.

8. Mr. Shireman and Mr. Kvaal maintained the types of

communications sought by Ms. Weismann in their individual

Departmental email accounts. After his departure from OUS, Mr.

Shireman's emails were captured on a Departmental server. OUS

conducted an electronic search of Mr. Shireman's and Mr. Kvaal's

emails for emails that referenced the following terms in the

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subject or text of the email: "for-profit education,"

"proprietary," "gainful employment" or "program integrity." OUS

also conducted an electronic search of Mr. Shireman's and Mr.

Kvaal's emails for emails to or from Steve Eisman, FrontPoint

Partners, LLC, Morgan Stanley Investment Management, Inc.,

Pauline Abernathy, The Institute for College Access and Success,

Barmak Nassirian, the American Association of Collegiate

Registrars and Admissions Officers, Manuel Asenio, The Alliance

for Economic Stability, or Johnette McConnell Early. OUS then

reviewed the results of the electronic search to identify

records responsive to the FOIA request. To the best of my

knowledge OUS does not have any hard-copy correspondence records

responsive to the request and there is no place where any hard

copy documents responsive to the request reasonably might be

found; therefore, those records were not searched. Pursuant to

Ms. Weismann's October 25, 2010 clarification, internal emails to

or from Robert Shireman and James Kvaal that did not mention the

external entities listed above were not identified as responsive.

9. On November 19, 2010, OUS provided the Department's FOIA

Service Center with 506 pages responsive to this FOIA request from

the account of Mr. Shireman. These records were released to CREW

on December 6, 2010. All of these pages were released in full

without redactions.

10. On January 6, 2011, OUS confirmed that a search of all

locations described above using the correct spelling of the name

"Asensio" returned no additional responsive records.

11. On February 16, 2011, OUS provided the Department's FOIA

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Service Center with 198 pages responsive to this ForA request from

the account of Mr. Kvaal. Of the 198 pages, 188 are being

released in full with this declaration. See attache Kvaal

documents. Ten pages are being withheld in full pursuant to the

deliberative process privilege, Exemption 5. The ten withheld

pages are comprised of e-mail chains which reflect the agency

employees' discussions among themselves concerning the plan for

release of the proposed rule for gainful employment. The e-mails

and attached draft rollout plans reflect internal strategies and

recommendations for making the rollout, and reflect internal

deliberations and political and press considerations such as who

should be considered individuals of importance to contact in

making the rollout. Also included in the pages are a draft press

release and draft talking points. I have reviewed the ten pages,

and found that they are subject to exemption 5 in full.

I declare under penalty of perjury that the foregoing is true

and correct. Executed on J l \~ 2011.

\

rsenault
Office f the Undersecretary
U.S. Department of Education