November 5, 1999

FOIA Officer
U.S. Department of Education
Regional Office Building-3
400 Maryland Avenue, SW, Room 5624
Washington, DC 20202-4651

Re: Freedom of Information Act Appeal

Dear FOIA Officer:

This is an appeal under the Freedom of Information Act (FOIA). On October 19, 1999

[07:34:44 -0700 (PDT)] and October 26,1999 [7:36:55-0700 (PDT)], Mr. Hilbert e-

mailed Ms. Naomi Randolph [Supervisor, Accreditation and State Liaison] and

requested, under the auspices of FOIA, the American Bar Association Council of the

Section of Legal Education and Admissions to the Bar’s [Council] “thorough information

and investigation provided in [their] response” to the inquiry initiated by Ms. Joyce Jones

[Education Program Specialist, Accrediting Evaluation Branch] on August 23, 1999. Mr.

Hilbert’s disclosure request was not assigned an identification number. On October 26,

1999 [16:53:39 -0400], by e-mail, Ms. Randolph denied Mr. Hilbert’s FOIA disclosure

request.

Ms. Randolph cited the “Confidential Information” clause under FOIA exemption four.

The Council’s response must be disclosed under FOIA because Congressional Intent and

relevant case law interpreting FOIA exemption four, under 5 U.S.C. § 522 (b) (4), are
dispositive and mandate disclosure.

I. FOIA “requires ‘agencies’ to comply with requests to make their ‘records’ available to

the public, unless the requested records fit within one or more of nine categories of

exempt material.” Bartholdi Cable Company, Inc. v. Federal Communications

Commission and United States of America, 114 F.3d 274, 280 (D.C. Cir. 1997).

Under 5 U.S.C. § 552 an agency is defined as any executive department. Forsham v.

Harris, Secretary of Health, Education, and Welfare, 445 U.S.169, 179 (1980). As the

Department of Education (Department) is an Executive department within the Executive

branch of the United States Government, it is an agency.

II. The United States Congress intended that a Department [agency] must first “create”

or “obtain” a record as a prerequisite for its becoming an agency record subject to FOIA

disclosure. Thus, FOIA applies to records which have been obtained. Id. at 171, 176-77,

182. Data not obtained by the Department, but created by a privately controlled

organization which has received federal grants are not “agency records” accessible under

FOIA. Id. at 171.

On August 23, 1999, Ms Jones requested the Council’s response to Mr. Hilbert’s

complaint “on or before September 30, 1999.” Thus, as stipulated by Ms. Jones, the

Council’s “thorough information and investigation provided in [their] response” (Jones’

letter of October 21, 1999) was “obtained” satisfying FOIA disclosure rules. Further, any
documents/records “created” by the Department concerning Mr. Hilbert’s complaint and

the Council’s response are subject to FOIA disclosure rules. “Information [records] that

the Department created on its own cannot normally be withheld under FOIA exemption

four.” H.R. REP. No. 106-50 (1999).

In Forsham, the Supreme Court adopted The Records Disposal Act’s definition of

Agency Records as the required standard under FOIA. 445 U.S. at 183, 185.

The Act defines the threshold test for Departmental records as “all books, papers, maps,

photographs, machine readable materials, or other documentary materials, [applications,

statements, reports, contracts, correspondence, notices] regardless of physical form or

characteristics, made or [filed] received by a [Department] of the United States

Government under Federal Law or in connection with the transaction of public business.”

Further, “the definition of records under the Records Disposal Act requires that records

made or received by the [Department] also be preserved or appropriate [sic] for

preservation by that agency . . . as evidence of the organization, functions, policies,

decisions, procedures, operations, or other activities of the Government or because of the

informational value of data in them.” Id.

It is axiomatic that the Council’s “thorough information and investigation provided in

[their] response” constitute Departmental records for the purposes of FOIA disclosure.

III. Limited only by certain “narrowly-construed” exemptions enacted to protect other

important interests, the United States Congress enacted FOIA to “ensure comprehensive
public access” to Departmental records. National Parks & Conservation Association v.

Kleppe, 547 F.2d 673, 687 (D.C. Cir. 1976).

On October 26, 1999, Ms. Randolph stipulated that FOIA exemption four, “Confidential

Information,” supported the Department’s position for denying disclosure of the

Council’s response. The “thorough information and investigation” submitted by the

Council in regard to not only Mr. Hilbert’s complaint, but also the Department’s inquiry

is not (1)“commercial or financial” in character; (2) may not have been secured from a

“person” and; (3) must not be classified as “confidential” under FOIA exemption four.

Concerning Mr. Hilbert’s disclosure request under FOIA, the following analysis

unequivocally shows that exemption four is not only inapplicable, but also irrelevant.

IV. Exemption four states that a Department is not obliged to disclose [records]

information consisting of “trade secrets and commercial or financial information obtained

from a person and . . . confidential.” 5 U.S.C. § 522 (b) (4). Exemption four requires

satisfying a three pronged threshold test for non-disclosure of Departmental records:

Section 552 (b) (4) provides: (1) “The information for which exemption is sought must be

a ‘trade secret’ or ‘commercial or financial’ in character; (2) it must be ‘obtained from a

person’ and; (3) it must be . . . confidential.” Jerrold Nadler; Tribeca Community

Association; 67 Vestry Street Tenants Association v. Federal Deposit Insurance

Corporation, 92 F.3d 93, 95 (2d Cir. 1996); McDonnell Douglas Corporation v. National

Aeronautics and Space Administration, 180 F.3d 303, 304-05 (D.C. Cir. 1999). Ms.
Randolph did not assert “privileged” information. Accordingly, Mr. Hilbert confines his

analysis to “confidential” information.

The FOIA mandate commands a broad disclosure of Governmental records. United

States Department of Justice v. Julian, 486 U.S. 1, 8 (1988). For this reason, courts have

consistently construed FOIA exemptions “narrowly.” Id. at 8. Specifically, exemption

four must be applied “narrowly” considering the “dominant motif expressed [by

Congress] in the statute.” Washington Post Company v. United States Department of

Health and Human Services, 865 F.2d 320, 324 (D.C. Cir. 1989). Adhering to Congress’

narrow interpretation of FOIA exemption four, Mr. Hilbert will address each element of

FOIA exemption four.

(A) The “thorough information and investigation” submitted in the Council’s response to

Mr. Hilbert’s complaint is not a trade secret under exemption four.

“A trade secret is a commercially valuable plan, formula, process, or device. This is a

narrow category of information. An example of a trade secret is the recipe for a

commercial food product.” H.R. REP. No. 106-50 (1999). Further, the term trade secret

should be construed in a “narrow” common law sense thereby incorporating a direct

relationship between the information requested and the productive process. Public

Citizen Health Research Group v. Food and Drug Administration, 704 F.2d 1280, 1288

(D.C. Cir. 1983). Thus for FOIA purposes, trade secret is defined as a “secret,

‘commercially’ valuable plan, formula, process, or device that is used for the making,
preparing, compounding, or processing of trade commodities and that can be said to be

the end product of either innovation or substantial effort.” Id. at 1288.

For example, in Public Citizen Health Research Group, “two undated summary reports of

complications and adverse reactions in IOL [Intraocular lenses] studies, an adverse

reaction summary log, several thousand adverse reaction reports, data on study sponsors’

prior experiences with IOLs, a note pertaining to an inspection report, a letter written by

an official of the FDA regarding problems with one manufacturer’s IOLs, memorandums

of a telephone conference and a meeting in which the participants discussed adverse

reactions, two memorandums concerning recalls of one manufacturer’s lenses, and letters

approving the export of IOLs were requested.” Id. at 1283. The court held that the

relationship of the requested information to the productive process was “tangential at

best,” and, thus, under “no” plausible reading of the phrase “plan, formula, process, or

device” could the reports, letters, and memorandums fall under the Trade Secrets prong

of FOIA exemption four. Id. at 1290.

“The Trade Secrets prong represents a uniform, comprehensive, and reasonable, yet

stringent approach to discouraging unauthorized disclosures of ‘private commercial and

financial data entrusted to the Government.’” CNA Financial Corporation v. Donovan,

830 F.2d 1132, 1151 (D.C. Cir. 1987). The Council’s response to Mr. Hilbert’s

complaint must be limited to the content of Mr. Hilbert’s complaint. The “thorough

information and investigation” submitted by the Council concerning not only his

complaint, but also the Department’s inquiry could not contain “private commercial and
financial data entrusted to the [Department].” Further, the terms “commercial” and

“financial” should be construed within their “ordinary meanings.” Public Citizen Health

Research Group, 704 F.2d at 1290. Black’s Law Dictionary defines commercial as:

“Relates to or is connected with trade and traffic or commerce in general; is occupied

with business and commerce.” Black’s Law Dictionary 245 (5th ed. 1979). Black’s

defines financial as “relating to finances” and appropriately refers one to the term fiscal.

Black’s also defines fiscal as: “having to do with financial matters; i.e., money, taxes,

public or private revenues.” Black’s Law Dictionary 572 (5th ed. 1979). Thus,

considering the scope of the Trade Secrets prong and the intent of Congress, no plausible

reading of the phrase “plan, formula, process, or device” could apply to the Council’s

response. Thus, although the “Trade Secrets prong (Act) is at least co-extensive with that

of FOIA,” it is irrelevant for our inquiry under FOIA exemption four. CNA Fin. Corp.,

830 F.2d at 1151. Mr. Hilbert’s complaint addressed issues of institutionalized

prevarication, professional inadequacy and institutionalized cheating—among others, all

of which concerned factual and, thus, truthful ethical and academic matters.

(B) Exemption four requires satisfying a three pronged [conjunctive] threshold test for

non-disclosure of Departmental records: Section 552 (b) (4) provides: (1) “The

information for which exemption is sought must be a trade secret or commercial or

financial in character; (2) it must be ‘obtained’ from a ‘person’ and (3) it must be . . .

‘confidential.’” Jerrold Nadler; Tribeca Community Ass’n; 67 Vestry St. Tenants Ass’n,

92 F.3d at 95; McDonnell Douglas Corp., 180 F.3d at 304-05.

The Nadler court defined the term “person” under 5 U.S.C. § 551(2) as including “an

individual . . . association . . . or private organization other than an agency.” Jerrold

Nadler; Tribeca Community Ass’n; 67 Vestry St. Tenants Ass’n, 92 F.3d at 95. For

interpretive purposes, “agency” would be a governmental agency. However, if this

interpretation is accepted, then the Nadler court might possibly have defeated prong two

of FOIA exemption four. The Department does not recognize the American Bar

Association. The Department recognizes the Council of the Section of Legal Education

and Admissions to the Bar, i.e., a non-governmental accrediting “agency” which is an

arm of the American Bar Association. If one adheres to the enumerated examples in

Nadler, then the Council of the Section of Legal Education and Admissions to the Bar is

not a “person” under FOIA exemption four. Thus, the response was not obtained from a

person. In the August 23, 1999, correspondence, Ms. Jones not only refers to the

Council, but also cites Section 602.27(f) referencing the Council as an Accrediting

“Agency.” If the Nadler Courts’ interpretation is dispositive, then prong two of the

conjunctive FOIA exemption four is not satisfied, and the Council’s response must be

disclosed.

(C) Under Section 602.27 (a) (f) (Part 602, Subpart C - Criteria for Secretarial

Recognition, June, 1999), to be listed by the Secretary as a nationally recognized

accrediting agency, “an accrediting agency ‘must’ demonstrate to the Secretary that it

satisfies the . . . additional requirements contained in paragraphs (b) through (h) of this

section.” Thus, the “accrediting agency ‘must’ (f) (1) review(s) any complaint it receives

against . . . the agency itself, that is related to the agency’s standards, criteria, or
procedures; and (2) resolve(s) the complaint in a timely, fair and equitable manner.” On

August 23, 1999, Ms. Jones formally requested a response to “Mr. Hilbert’s complaint . .

. preferably on or before September 30, 1999.” Black’s Law Dictionary defines must as a

word . . . “primarily of mandatory effect.” Black’s Law Dictionary 919 (5th ed. 1979).

The Department “required” a response to “Mr. Hilbert’s complaint on or before

September 30, 1999.”

When the response is “required,” it will be considered confidential only if disclosure

would be likely either (1) “to impair the [Department’s] ability to obtain necessary

information in the future; or (2) to cause substantial harm to the competitive position of

the person from whom the information was obtained.” National Parks & Conservation

Association v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974); McDonnell Douglas Corp.,

180 F.3d at 305; Public Citizen Health Research Group v. Food & Drug Administration;

Schering Corporation, 185 F.3d 898, 903 (D.C. Cir. 1999).

However, the National Parks I court considered the Government’s future impairment a

“non-issue” because submission was required by statute. Nat’l Parks & Conservation

Ass’n, 547 F.2d at 678 (citation omitted). “If submission of equal employment and

affirmative action material is generally compulsory [governed by statute] for those who

contract with the Federal Government, then this prong of the [National Parks I test] is not

at issue here.” CNA Fin. Corp., 830 F.2d at 1153; Nat’l Parks & Conservation Ass’n,

547 F.2d at 678 (citation omitted).

In addition, the National Parks I court submitted a “narrow” rationale concerning the two-

pronged exemption four test for information which is “required.” Jerrold Nadler; Tribeca

Community Ass’n; 67 Vestry St. Tenants Ass’n, 92 F.3d at 96 (citation omitted). Its

rationale was to “(1) encourage cooperation by those who are not obliged to provide

information to the government and (2) [to] protect the rights of those who ‘must.’” Id. at

96; Niagara Mohawk Power Corporation v. United States Department of Energy, 169

F.3d 16, 17 (D.C. Cir. 1999). Only the second prong is required for this analysis.

In addition, concerning “compelled” disclosure of information, the Congressional intent

underlying exemption four “centered upon unfair disclosure of ‘financially sensitive’

information that was confidentially disclosed to the government.” Jerrold Nadler;

Tribeca Community Ass’n; 67 Vestry St. Tenants Ass’n, 92 F.3d at 96-7.

For example, sensitive “financial information” about a FDIC receivership represented the

class of materials that Congress exempted as “confidential” under 5 U.S.C. § 552 (b) (4).

Id.

Per the Department’s August 23, 1999, correspondence, the Council’s response was

“required” as stipulated by Section 602.27 (f) of the Secretary’s Procedures and Criteria

for Recognition. Thus, considering the first prong of the test, the Council’s response will

be considered confidential if disclosure would be likely (1) to impair the Department’s

ability to obtain necessary information in the future. The Secretary’s Procedures and

Criteria for the Recognition of Accrediting Agencies, including Part 602 subsection

602.27 (f), were published in the Federal Register on April 29, 1994. As the Council’s
response was required by statute, Section 602.27 (f), the Department’s ability to obtain

similar information in the future is unimpaired. The Council was required to submit a

response to Mr. Hilbert’s complaint. The complaint addressed issues of institutionalized

prevarication, professional inadequacy and institutionalized cheating. As such, the

Council’s response addressed issues wholly distinct from “financially sensitive”

information and, therefore, disclosure of the Council’s response would not undermine the

rights of those who must submit “financially sensitive” information to the Department.

Thus, the first prong of the National Parks I test is irrelevant and, therefore, a balancing

test addressing the risk of the Department’s impairment regarding future comparable

information gathering, as opposed to the public’s interest in disclosure, is unnecessary

and irrelevant.

(D) The two pronged National Parks I test is disjunctive. Thus, both prongs must be

analyzed. Considering the second prong of the National Parks I test, “the required

information will be considered confidential if disclosure would be likely to cause

substantial harm to the competitive position of the person from whom the information

was obtained.” Nat’l Parks & Conservation Ass’n, 498 F.2d at 770.

Under the second prong, the Department must satisfy two tests to deny disclosure based

on a “financial competitive” injury claim. Failure on either prong compels disclosure of

the Council’s response. The Department must prove that the Council: (1) “actually

face[s] competition, and (2) that substantial competitive injury would likely result from

disclosure of the [response].” Niagara Mohawk Power Corp., 169 F.3d at 18. The first
test requires explicit proof that the Council faces “actual competition, not future or

potential competition.” Id. at 19.

In National Parks I, the concessionaires had monopoly contracts with the Government.

By statute, if the concessionaires performed satisfactorily, these contracts would be

renewed. 498 F.2d at 770. Thus, renewal tended to be guaranteed. If the Park Service

deemed a concessionaires’ past performance satisfactory, the concessionaire enjoyed a

statutory renewal preference, and, invariably, the agency renewed the contract. Nat’l

Parks & Conservation Ass’n, 547 F.2d at 681. Further, considering the practical barriers

to competition by potential contract bidders, the court concluded that disclosing the

“financial” information would not “materially increase the opportunity for potentially

damaging competition for renewal of concessions.” Id. at 681-82.

The Council of the Section of Legal Education and Admissions to the Bar “has been

approved by the Department as the recognized national agency for the accreditation of

professional schools of law.” American Bar Association Standards for Approval of Law

Schools, (1998 A.B.A. 22). The Council has no competitors. Further, the Department’s

current list of Nationally Recognized Accrediting Agencies singularly cites the American

Bar Association, Council of the Section of Legal Education and Admissions to the Bar as

the accrediting agency for American Law Schools. Current list of Nationally Recognized

Accrediting Agencies, (1999 U.S. Department of Education 15). The Council is the only

law school accrediting agency recognized by the Department. Further, if the Council

performs satisfactorily, then, more likely than not, the Department will renew the
Council’s accreditation status. Thus, the Department cannot premise a substantial injury

claim, and, thereby, deny disclosure of the Council’s response on the basis that the

Council presently faces actual competition.

The second test of the second prong National Parks I test precludes Department

disclosure based on a competitive injury claim if “substantial competitive injury would

likely result” to the Council from disclosure of the response. Nat’l Parks & Conservation

Ass’n, 547 F.2d at 679 (citation omitted).

Again, the substance of FOIA exemption four concerns denying “sensitive financial”

disclosure. In addition, the “parties opposing disclosure need only show evidence

revealing actual competition and the likelihood of substantial competitive injury. This

will bring ‘commercial information’ within the realm of confidentiality. Further, the

competitive harm must be limited to harm flowing from the affirmative use of proprietary

[financial] information by competitors.” Pub. Citizen Health Research Group, 704 F.2d

at 1291.

For example, In Public Citizen Health Research Group v. FDA; Schering Corp., “The

development and marketing of new antifungal products is . . . being actively engaged in

by a number of other drug companies [could have eliminated] much of the time and effort

. . . to bring a [competitive product to market which would have been competitive with

the product currently being developed by the Corporation which sought non-disclosure

under FOIA exemption four]. Disclosure would [have provided] competitors with
valuable insights into the operational strengths and weaknesses of [the] company, while

its competitors could [have continued] in the customary manner of playing their cards

close to their chest. If a manufacturer’s competitor could obtain [all of the

manufacturer’s data, then the competitor could utilize that data] without incurring the

time, labor, risk, and expense involved in developing them independently.” 185 F.3d at

905. The court held that this type of competitive harm exemplified the harm envisioned

under exemption four. Id. at 905. Further, the Public Citizen court held that

documentation of the health and safety experience of products would be instrumental in

gaining marketing approval for competitors’ products, thus, the manufacturers of IOLs

had a commercial interest in the requested information. 704 F.2d at 1290.

In addition, “minor” disadvantages resulting from disclosure of the Council’s response

“cannot overcome the disclosure mandate of FOIA.” Washington Post Co., 865 F.2d at

327. The “thrust of the FOIA contemplates a straightforward balance of the pros and

cons of disclosure in any particular case.” Id. at 328. Thus, “the claims as to anticipated

displeasure of employees or to adverse public reaction, i.e., unfavorable publicity (long-

range harmful consequences) and employee demoralization following disclosure were

unrelated to the policy intent behind exemption four--[external ‘financial’ injury].” The

claims did not meet the threshold which mandates “harm flowing from the affirmative

use of proprietary [financial] information by competitors.” CNA Fin. Corp., 830 F.2d at

1154.
The Council’s response to Mr. Hilbert’s complaint could not concern “sensitive financial

matters.” In addition, “minor” disadvantages, as delineated from negative “financial”

effects, cannot overcome the broad disclosure mandate of FOIA. Thus, the second test is

irrelevant. It is axiomatic that Departmental release of the response will not result in

“substantial [or even a likelihood of substantial] competitive [financial] injury” to the

Council. Further, “conclusory [sic] or generalized Departmental allegations of

substantial harm . . . cannot support [the Department’s] decision to withhold the response.

The allegations must be of specific ‘financial’ harm.” Pub. Citizen Health Research

Group, 185 F.3d at 906. Again, the lack of competitive financial injury to the Council is

axiomatic. Nevertheless, despite the lack of substantial competitive “financial” injury,

the appropriate balancing test will be analyzed.

Congress has demanded that the balancing test delineate the pertinent public interest. If,

by disclosure, “the public would learn something directly about the workings of the

‘Department,’ then the information should be disclosed unless it comes within one of the

nine enumerated exemptions.” A citizen’s interest in Departmental information which

reveals the manner in which the Department performed its statutory duties “falls squarely

within the statutory purpose.” Id. at 909. Mr. Hilbert seeks the Council’s response in

order to find out “what the Department is up to.” Id. at 904. Moreover, the basic purpose

of FOIA concerns “opening Departmental action to public scrutiny.” Id. Thus, one must

balance the public’s benefit of revealing what the Department is up to against the non-

existent competitive [financial] injury that could not result from disclosure of the

Council’s response.
Further, on August 13, 1999, 12:26 P.M., Ms. Randolph remitted an e-mail to Mr.

Hilbert. The e-mail read as follows: “Naomi and Joyce, The dogged and loquacious Mr.

Hilbert is still trying to learn whether you folks are still working on his case. Please see

the latest salvo, and let me know whether you expect to do anything more for him . . . I

would like very much to get closure on Mr. Hilbert, but I doubt that it may be possible!”

A “factual presumption is reasonable when the circumstances [content of the August 13,

1999 e-mail] giving rise to the presumption [Did the Department apply its Criteria

appropriately?] . . . make it more likely than not the presumed fact exists [The

Department did not apply its Criteria appropriately.].” Id. at 907. Considering the

content of Ms. Randolph’s e-mail, Mr. Hilbert seeks disclosure of the Council’s response

in order to ascertain whether the Department appropriately applied its Criteria. In other

words, Mr. Hilbert seeks the Council’s response in order to find out “what the

Department is up to.” Moreover, the Council’s response bears a close relationship to Mr.

Hilbert’s ability to assess whether the Council performed its function properly, i.e.,

applied the Standards for Approval objectively. Niagara Mohawk Power Corp., 169

F.3d at 19. In full, the Council’s response Mr. Hilbert seeks does not fall within FOIA

exemption four.

V. Mr. Hilbert has established that the Department improperly withheld and denied

disclosure of Departmental records, i.e., the Council’s response. Forsham, 445 U.S. at

177. Nevertheless, this FOIA appeal will be analyzed under two additional tests: (1)
arbitrary and capricious action and (2) abuse of discretion. CNA Fin. Corp., 830 F.2d at

1154.

Under the arbitrary and capricious test, Mr. Hilbert analyzes whether the Department’s

action reflected a “clear error in judgment.” Bartholdi Cable Co. Inc., 114 F.3d at 279.

The dispositive case law prohibits non-disclosure of the Council’s response. As such, the

Department’s denial of disclosure reflects a “clear error in judgment.” Id.

Mr. Hilbert also asserts that the Department has abused its discretion. Mr. Hilbert

ascribes a plain language meaning to the phrase “abuse of discretion.” Considering the

aforementioned dispositive legal analysis which supports Mr. Hilbert’s FOIA disclosure

request, the Department should have released the Council’s response upon Mr. Hilbert’s

first request on October 19, 1999. In addition, the e-mail of August 13, 1999 from Ms.

Randolph to Mr. Hilbert [“Naomi and Joyce, The dogged and loquacious Mr. Hilbert is

still trying to learn whether you folks are still working on his case. Please see the latest

salvo, and let me know whether you expect to do anything more for him . . . I would like

very much to get closure on Mr. Hilbert, but I doubt that it may be possible!”] compels

Mr. Hilbert to affix an “abuse of discretion” charge to the Department’s non-disclosure

under FOIA.

VI. Finally, FOIA exemption four must be construed narrowly considering the dominant,

Congressional, disclosure motif expressed in the statute. Washington Post Co., 865 F.2d

at 324. The FOIA mandate demands broad disclosure of Departmental records, and, for
this reason, FOIA exemptions must be narrowly construed. United States Dep’t of

Justice, 486 U.S. at 8. Plainly, Congressional intent mandates a “narrow reading,”

thereby specifically delineating exemption four to “trade secrets” and the disclosure of

“sensitive financial information.” In full, if the Department’s records are neither trade

secrets nor sensitive commercial/financial information, FOIA exemption four is “wholly

inapplicable.” Pub. Citizen Health Research Group, 704 F.2d at 1286. As the Council’s

response fails to reach the non-disclosure threshold under FOIA exemption four, FOIA

mandates disclosure of the Council’s response to Mr. Hilbert. Nat’l Parks &

Conservation Ass’n, 547 F.2d at 686.

Mr. Hilbert reserves the right to request a waiver of fees.

Ms. Randolph rendered her determination on October 21, 1999. The review costs should

be inconsequential. However, Mr. Hilbert reserves the right to appeal any review

expenses.

Mr. Hilbert requests that the Council’s response be remitted in paper or hard copy format.

Thank you for your consideration of this appeal.

Respectfully submitted,

Mark Richard Hilbert

Please remit a copy of this FOIA appeal to:

Secretary Richard W. Riley

Secretary of Education
U.S. Department of Education
Office of the Secretary
400 Maryland Avenue, SW, Room 7W301
Washington, DC 20202

Ms. Maria-Teresa Cueva

Office of the Chief Financial and Chief Information Officer
U.S. Department of Education
Regional Office Building
7th and D Streets, SW, Room 5624
Washington, DC 20202

Ms. Carolyn Adams

Office of the General Counsel
U.S. Department of Education
FOB-6
400 Maryland Avenue, SW, Room 6E343
Washington, DC 20202

Mr. John D. Tressler

Office of the Chief Financial and Chief Information Officer
U.S. Department of Education
Regional Office Building
7th and D Streets, SW, Room 5640
Washington, DC 20202

Ms. Kristina A. Letourneau

Office of Post Secondary Education
U.S. Department of Education
Regional Office Building
7th and D Streets, SW, Room 4921
Washington, DC 20202

Ms. Naomi Randolph, Chief

Accrediting Agency Evaluation Branch
U.S. Department of Education
7th and D Streets, SW, Room 3915
Washington, DC 20202-5244