Bagwell v. Dep't of Educ., 2016 WL 1664808 (D.D.C. Apr. 26, 2016) (Kollar-Kotelly, J.)

Bagwell v. Dep't of Educ., 2016 WL 1664808 (D.D.C. Apr. 26, 2016) (Kollar-Kotelly, J.)

Re: Request for records concerning review of compliance by Pennsylvania State University with Clery Act

Disposition: Granting defendant's motion for summary judgment; denying plaintiff's cross-motion for summary judgment

• Exemption 7(A):  "[T]he Court concludes that the agency has shown that the release of the audit trails/supporting documentation could reasonably be expected to interfere with the agency's ongoing investigation."  "Accordingly, the Court concludes that the agency's withholding of all of the responsive materials in this category is properly justified, in full, on the basis of Exemption 7(A)."  The court finds that "[w]ith respect to the program review at issue in this case, there is no dispute that the agency has provided its initial program review report to Penn State."  "There is also no dispute that the agency has not yet issued a final program review report or audit determination."  The court explains that "[t]he current status of the investigation, however, is disputed."  The court finds that "[t]he agency issued its preliminary report; the institution has had an opportunity to respond; and the agency has yet to issue its final determination."  The court relates that "[a]s noted in the Program Review Guide itself, '[i]f the information/documentation provided does not fully resolve the findings, the reviewers may contact the institution to obtain missing information or clarification.'"  The court addresses the final part of the 7(A) test by relating that, "regarding the possibility that disclosures will interfere with the ongoing investigation, the agency explains" that "'the risk of witness intimidation, destruction of evidence and construction of alibis still reasonably exist.'"

For similar reasons, the court also agrees with defendant's "withholding of Penn State's institutional response to the agency's preliminary review report."  The court explains that "[w]hile the institutional response to the preliminary program review report is undoubtedly distinct from the materials addressed above, the Court arrives at the same conclusion as above: that the agency has shown that the disclosure of the materials could be reasonably expected to interfere with the ongoing investigation."  "As explained above, the Court has accepted the agency's representation that it continues to receive information from the institution until the issuance of the final determination or report."  "Therefore, 'the risk of witness intimidation, destruction of evidence and construction of alibis still reasonably exist.'"

The court also finds that this same analysis applies to "records exchanged between the agency's Office of Student Aid and [an outside law firm]."  Additionally, the court finds that records concerning an "investigation . . . not connected to Penn State" where "'the targets are aware of the investigation,' but . . . 'the targets are not publicly known'" are withholdable under Exemption 7(A).

• Exemption 7(E):  "[T]he Court concludes that the agency has adequately justified its withholding of the audit trails/supporting documentation under Exemption 7(E)."  The court relates that "the responsive documents in this set of materials 'include two primary categories of records: 1) spreadsheets and ledgers prepared by the University that were intended to support the validity of its campus crime statistics and 2) spreadsheets, ledgers, and other similar records created by the Department to support [its] preliminary conclusions about the validity of the University's campus crime statistics.'"  The court finds that "[t]he agency has stated, through a sworn declaration, that disclosure of the materials that support the crime statistics disseminated by the University, as well the materials supporting any audit by the agency of those statistics, would enable institutions to submit invalid crime statistics and to 'evade detection.'"  "Plaintiff has provided nothing that controverts this statement, and the Court has no basis to second-guess it."
   
• Exemption 3:  "The Court concludes that the agency has shown that the material withheld is within the scope of the Higher Education Act's confidentiality provision and, therefore, is exempt from disclosure, in full, pursuant to Exemption 3."  The court relates that, here, defendant relied on "'[t]he Higher Education Act of 1965, Section 498A (20 U.S.C. § 1099c–1),'" which requires an agency to "preserve the confidentiality of 'any program review report' until the agency has provided the institution an opportunity to respond and until it has issued a final audit or determination."  "The Court agrees with Defendant's argument in whole" that "disclosure of the institutional response to the preliminary program review report would indirectly reveal the content of the preliminary program review report" and, "[t]herefore, . . . the Higher Education Act of 1965 mandates the confidentiality of this material, and it is, accordingly, exempt from disclosure under FOIA pursuant to Exemption 3."  The court also agrees with defendant's argument that "'[a]s set forth in the Program Review Guide cited by the Plaintiff, the Department requires institutions to prepare an institutional response that explicitly addresses all issues identified by the program review report, point by point.'"  "'Therefore, releasing the institution's response at this time would implicitly release the underlying program review report by inference, which is prohibited.'"
   
• Exemptions 6 & 7(C):  "[T]he Court concludes that the agency's withholding of information within the institutional response, as identified by the agency, under Exemptions 6 and 7(C) is justified."  First, the court notes that "[p]laintiff concedes that the agency may withhold 'student names, social security numbers, and other personally identifying information.'"  Second, regarding "'crime reports, security incident reports and victim allegation statements' [which plaintiff argues] should have been produced with the identifying information redacted," the court finds that "[t]he balancing tests the Court must apply with respect to these exemptions indicate that the agency's withholding of this information was proper."  The court explains that "the Department's contention that much of the information in the crime reports, security incident reports, and victim allegation statements would be privacy-related reflects common sense."  "Indeed, the information at issue, regarding particularly crime reports and statements by victims, can be of the most private nature."  "Such information is often underreported, and it is plausible that further disclosure of such private information would only exacerbate the challenges of such underreporting."
   
• Exemption 7(D):  "[W]ith respect to Exemption 7(D), the Court concludes the agency's redaction of names was proper in light of the express promise of confidentiality provided to the persons whose information was redacted."
   
• Exemption 7(E):  The court holds that defendant properly asserted "Exemption 7(E) for the withholding of [certain] e-mails to the extent that they contain 'search terms used by case agents in the course of the investigation' by the Office of the Inspector General" because "disclosure of this information would indicate which search terms the agency used to uncover wrongdoing in this particular case."  "Disclosing those terms would, therefore, facilitate the avoidance of the detection of wrongdoing by persons committing such wrongdoing, who could eliminate the terms found in any agency disclosure from their correspondence."