DeVry Inquiry NYAG

Robert Teel filed this request with the Office of the Attorney General - New York of New York.
Tracking # 160328
Status
Rejected

Communications

From: Robert Teel

To Whom It May Concern:

Pursuant to the New York State Freedom of Information Law (1977 N.Y. Laws ch. 933), I hereby request the following records:

Please provide all documents, information, materials, data, emails, and other responses produced by DeVry Education Group Inc. (“DeVry Group”) to the Office of the Attorney General of the State of New York (“NYOAG”) in response to that certain July 15, 2014 letter from the NYOAG requesting cooperation and records and other material in connection with the NYOAG’s inquiry into whether recent television advertisements and website marketing regarding DeVry University may have violated federal and state laws prohibiting false advertising and deceptive practices. The letter requested relevant information from January 1, 2011, to the present to enable NYOAG to make a determination of what action, if any, is warranted.

The requested documents will be made available to the general public. If there are any fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 5 business days, as the statute requires.

Sincerely,

Robert Teel

From: FOIL

Dear Mr. Teel:

Please find attached a letter regarding your FOIL request.

Thank you.

Michael Jerry/sd
Assistant Attorney General
Records Access Office
NYS Office of the Attorney General
State Capitol
Albany, NY 12224
Tele: (518) 776-2447

IMPORTANT NOTICE: This e-mail, including any attachments, may be confidential, privileged or otherwise legally protected. It is intended only for the addressee. If you received this e-mail in error or from someone who was not authorized to send it to you, do not disseminate, copy or otherwise use this e-mail or its attachments. Please notify the sender immediately by reply e-mail and delete the e-mail from your system.

From: Robert Teel

Thank you Mr. Jerry.

Sincerely,
Robert Teel

From: FOIL

Dear Mr. Teel:

Please find attached a response to your FOIL request.

Thank you.

Michael Jerry/sd
Assistant Attorney General
Records Access Office
NYS Office of the Attorney General
State Capitol
Albany, NY 12224
Tele: (518) 776-2447

IMPORTANT NOTICE: This e-mail, including any attachments, may be confidential, privileged or otherwise legally protected. It is intended only for the addressee. If you received this e-mail in error or from someone who was not authorized to send it to you, do not disseminate, copy or otherwise use this e-mail or its attachments. Please notify the sender immediately by reply e-mail and delete the e-mail from your system.

From: Robert Teel

Dear Mr. Jerry,

Thank you for your response. I shall review your letter and follow up in next few days.

Sincerely,
Robert Teel

From: Robert Teel

Dear Mr. Jerry,

Thank you for your reply. Please consider this as the undersigned’s request for more information in connection with, and reconsideration of, your denial. A blanket denial in toto of a request, with nothing but a recitation of the statute, is insufficient. Your response does not specifically indicate which of the requested materials your office does, or does not, have, and which parts of the request are being denied as exempt.

New York's FOIL is meant to in general favor the people and government openness. If some part of a request is deemed to be exempt from disclosure, that information may be redacted. The remaining information is still public.

In of Schenectady County Society for the Prevention of Cruelty to Animals v. Mills (10/25/11), the Court held that an agency responding to a demand under FOIL may not withhold a record because some of the information in that record is exempt from disclosure.  The Court noted that “[w]here it can do so without unreasonable difficulty, the agency must redact the record to take out the exempt information.”

FOIL exemptions are interpreted narrowly. Matter of Markowitz v Serio, 11 NY3d 43, 51 (2008). FOIL imposes a broad duty of disclosure upon government agencies and government records are "presumptively open" to the public.

Statutory exemptions to disclosure are "narrowly construed," and the agency must articulate a "particularized and specific justification" for nondisclosure. Matter of New York Civil Liberties Union v City of Schenectady, 2 NY3d 657, 661 (2004) [citing Matter of Gould v New York City Police Dep't, 89 NY2d 267, 274-275 (1996)]. The burden on proving any exemption rests with the respondent agency. See Markowitz, at 50-51.

1. Privacy 

A Court’s determination of “unwarranted invasion of personal privacy“ is measured by what would be offensive and objectionable to a reasonable person of ordinary sensibilities.” Pennington v. Clark, 16 A.D.3d 1049, 1051 (4th Dep’t 2005); see also In re Hanig, 79 N.Y.2d at 112; Empire Realty Corp v. N.Y.S. Div. of Lottery, 230 A.D.2d 270, 273 (3d Dep’t 1997). This may be resolved by a redaction of the documents to prevent disclosure of confidential information. 

2. Trade Secrets

My understanding is that your office and DeVry have entered into one or more confidentiality agreement whereby DeVry has designated certain materials produced in response to your request as “confidential” or “trade secrets.” Without in any way waiving any of the undersigned’s rights or remedies in connection with this request (including the right to seek and obtain such designated records), I request all records not designated by DeVry as “Confidential Information” be produced. I request the remaining materials claimed to be exempted as “Trade Secrets” be identified, categorized, indexed, and briefly described. If necessary, those materials may then be submitted to the court for an in camera review of the bona fides of any such claim of “trade secrets.”

3. Investigative Purposes

The blanket denial of my request under Section 87(2)(e) (or indeed, under any claim of exemption) builds a wall against disclosure of any information and provides no useful in put to determine the bona fides of your denial. Such a response stifles the purpose of the law.

Instead, the records should be identified in a functional categorical fashion after a review, and an explanation provided how the released documents in each category would interfere with enforcement proceedings, in order to effectuate the goal of providing information necessary to make a determination of the basis for the claim of exemption. The categories need to be distinct enough to allow review. To meet this standard, the agency needs to take the time to carefully go through the materials, document-by-document, and subdivide them into functional categories of records.

If you believe public disclosure of the DeVry documents would harm your investigation, these steps need to be taken. However, if you do not take these necessary steps to justify your exemption, then the records should be released. Otherwise, the state has not provided any information to justify withholding any DeVry files.

I understand the need to protect the integrity of an investigation, but if you cannot demonstrate that the investigation will be comprised by the release of the requested information, then have a right to review these documents. The onus is on the agency to at least, ab initio, explain how the release of the records would compromise its investigation. If you cannot provide adequate information to support this contention, then the materials must be provided.

I respectfully disagree with that the NYAG’s flat denial to produce any materials by recitation, and under color of, the three statutes you recited. I do, however, construe your response as an acknowledgement that you are in possession of the requested materials. If not, please say so.

In order to avoid needlessly resorting to legal process, please produce all the items set forth my request, excluding, redacting, or deleting the portions of the materials which you believe are exempt. If you are withholding any magterials based on the foregoing exemptions, please index, identify, categorize, and briefly describe any such materials withheld from production on those grounds.

The public information requested here involves the public’s interest in: (1) DeVry University’s potential violations of applicable state and federal law; and (2) the defense of tens of thousands of borrowers of billions of dollars in student loans under Title IV, and specifically their right to a defense for repayment under 20 U.S.C 1087e(h)1 and 34 CFR 685.206. If borrowers have a defense to repayment, and DeVry is unable to reimburse the government for such loans, the taxpayer will be on the hook for DeVry’s violations of applicable state law(s).

In short, the public interest in the information about not only the possible defenses available to DeVry’s student loan borrowers, but also the public taxpayer’s possible bail out for DeVry’s potential illegal conduct, is of significant public interest.

Thank you for your consideration. Nothing set forth herein or in connection with the modification of the request shall be considered a waiver of any of the undersigned rights or remedies in connection with the request. All such rights and remedies are hereby expressly reserved.

Sincerely,
Robert Teel

From: Michael Jerry

Dear Mr. Teel,

Instructions regarding the administrative appeal process are provided in the response letter sent on June 16, 2016. Please direct your request in accordance with that process.

Thank you,
Michael Jerry

From: MuckRock

Dear Mr. Jerry,

Thank you for your reply. Please consider this as the undersigned’s request for more information in connection with, and reconsideration of, your denial. A blanket denial in toto of a request, with nothing but a recitation of the statute, is insufficient. Your response does not specifically indicate which of the requested materials your office does, or does not, have, and which parts of the request are being denied as exempt.

New York's FOIL is meant to in general favor the people and government openness. If some part of a request is deemed to be exempt from disclosure, that information may be redacted. The remaining information is still public.

In of Schenectady County Society for the Prevention of Cruelty to Animals v. Mills (10/25/11), the Court held that an agency responding to a demand under FOIL may not withhold a record because some of the information in that record is exempt from disclosure. The Court noted that “[w]here it can do so without unreasonable difficulty, the agency must redact the record to take out the exempt information.”

FOIL exemptions are interpreted narrowly. Matter of Markowitz v Serio, 11 NY3d 43, 51 (2008). FOIL imposes a broad duty of disclosure upon government agencies and government records are "presumptively open" to the public.

Statutory exemptions to disclosure are "narrowly construed," and the agency must articulate a "particularized and specific justification" for nondisclosure. Matter of New York Civil Liberties Union v City of Schenectady, 2 NY3d 657, 661 (2004) [citing Matter of Gould v New York City Police Dep't, 89 NY2d 267, 274-275 (1996)]. The burden on proving any exemption rests with the respondent agency. See Markowitz, at 50-51.

1. Privacy

A Court’s determination of “unwarranted invasion of personal privacy“ is measured by what would be offensive and objectionable to a reasonable person of ordinary sensibilities.” Pennington v. Clark, 16 A.D.3d 1049, 1051 (4th Dep’t 2005); see also In re Hanig, 79 N.Y.2d at 112; Empire Realty Corp v. N.Y.S. Div. of Lottery, 230 A.D.2d 270, 273 (3d Dep’t 1997). This may be resolved by a redaction of the documents to prevent disclosure of confidential information.

2. Trade Secrets

My understanding is that your office and DeVry have entered into one or more confidentiality agreement whereby DeVry has designated certain materials produced in response to your request as “confidential” or “trade secrets.” Without in any way waiving any of the undersigned’s rights or remedies in connection with this request (including the right to seek and obtain such designated records), I request all records not designated by DeVry as “Confidential Information” be produced. I request the remaining materials claimed to be exempted as “Trade Secrets” be identified, categorized, indexed, and briefly described. If necessary, those materials may then be submitted to the court for an in camera review of the bona fides of any such claim of “trade secrets.”

3. Investigative Purposes

The blanket denial of my request under Section 87(2)(e) (or indeed, under any claim of exemption) builds a wall against disclosure of any information and provides no useful in put to determine the bona fides of your denial. Such a response stifles the purpose of the law.

Instead, the records should be identified in a functional categorical fashion after a review, and an explanation provided how the released documents in each category would interfere with enforcement proceedings, in order to effectuate the goal of providing information necessary to make a determination of the basis for the claim of exemption. The categories need to be distinct enough to allow review. To meet this standard, the agency needs to take the time to carefully go through the materials, document-by-document, and subdivide them into functional categories of records.

If you believe public disclosure of the DeVry documents would harm your investigation, these steps need to be taken. However, if you do not take these necessary steps to justify your exemption, then the records should be released. Otherwise, the state has not provided any information to justify withholding any DeVry files.

I understand the need to protect the integrity of an investigation, but if you cannot demonstrate that the investigation will be comprised by the release of the requested information, then have a right to review these documents. The onus is on the agency to at least, ab initio, explain how the release of the records would compromise its investigation. If you cannot provide adequate information to support this contention, then the materials must be provided.

I respectfully disagree with that the NYAG’s flat denial to produce any materials by recitation, and under color of, the three statutes you recited. I do, however, construe your response as an acknowledgement that you are in possession of the requested materials. If not, please say so.

In order to avoid needlessly resorting to legal process, please produce all the items set forth my request, excluding, redacting, or deleting the portions of the materials which you believe are exempt. If you are withholding any magterials based on the foregoing exemptions, please index, identify, categorize, and briefly describe any such materials withheld from production on those grounds.

The public information requested here involves the public’s interest in: (1) DeVry University’s potential violations of applicable state and federal law; and (2) the defense of tens of thousands of borrowers of billions of dollars in student loans under Title IV, and specifically their right to a defense for repayment under 20 U.S.C 1087e(h)1 and 34 CFR 685.206. If borrowers have a defense to repayment, and DeVry is unable to reimburse the government for such loans, the taxpayer will be on the hook for DeVry’s violations of applicable state law(s).

In short, the public interest in the information about not only the possible defenses available to DeVry’s student loan borrowers, but also the public taxpayer’s possible bail out for DeVry’s potential illegal conduct, is of significant public interest.

Thank you for your consideration. Nothing set forth herein or in connection with the modification of the request shall be considered a waiver of any of the undersigned rights or remedies in connection with the request. All such rights and remedies are hereby expressly reserved.

Sincerely,
Robert Teel

From: Robert Teel

Dear Mr. Jerry,

Please consider the foregoing June 8, 2016 correspondence as the undersigned request for appeal. Another copy has been sent to Ms. Kathryn Sheingold.

Sincerely,
Robert Teel

From: MuckRock

Kathryn Sheingold, Records Appeals Officer
State of New York, Office of the Attorney General
Division of Appeals and Opinions
The Capitol
Albany, New York 12224

To Whom It May Concern:

Thank you for your reply. Please consider this as the undersigned’s request for more information in connection with, and reconsideration of, your denial. A blanket denial in toto of a request, with nothing but a recitation of the statute, is insufficient. Your response does not specifically indicate which of the requested materials your office does, or does not, have, and which parts of the request are being denied as exempt.

New York's FOIL is meant to in general favor the people and government openness. If some part of a request is deemed to be exempt from disclosure, that information may be redacted. The remaining information is still public.

In of Schenectady County Society for the Prevention of Cruelty to Animals v. Mills (10/25/11), the Court held that an agency responding to a demand under FOIL may not withhold a record because some of the information in that record is exempt from disclosure. The Court noted that “[w]here it can do so without unreasonable difficulty, the agency must redact the record to take out the exempt information.”

FOIL exemptions are interpreted narrowly. Matter of Markowitz v Serio, 11 NY3d 43, 51 (2008). FOIL imposes a broad duty of disclosure upon government agencies and government records are "presumptively open" to the public.

Statutory exemptions to disclosure are "narrowly construed," and the agency must articulate a "particularized and specific justification" for nondisclosure. Matter of New York Civil Liberties Union v City of Schenectady, 2 NY3d 657, 661 (2004) [citing Matter of Gould v New York City Police Dep't, 89 NY2d 267, 274-275 (1996)]. The burden on proving any exemption rests with the respondent agency. See Markowitz, at 50-51.

1. Privacy

A Court’s determination of “unwarranted invasion of personal privacy“ is measured by what would be offensive and objectionable to a reasonable person of ordinary sensibilities.” Pennington v. Clark, 16 A.D.3d 1049, 1051 (4th Dep’t 2005); see also In re Hanig, 79 N.Y.2d at 112; Empire Realty Corp v. N.Y.S. Div. of Lottery, 230 A.D.2d 270, 273 (3d Dep’t 1997). This may be resolved by a redaction of the documents to prevent disclosure of confidential information.

2. Trade Secrets

My understanding is that your office and DeVry have entered into one or more confidentiality agreement whereby DeVry has designated certain materials produced in response to your request as “confidential” or “trade secrets.” Without in any way waiving any of the undersigned’s rights or remedies in connection with this request (including the right to seek and obtain such designated records), I request all records not designated by DeVry as “Confidential Information” be produced. I request the remaining materials claimed to be exempted as “Trade Secrets” be identified, categorized, indexed, and briefly described. If necessary, those materials may then be submitted to the court for an in camera review of the bona fides of any such claim of “trade secrets.”

3. Investigative Purposes

The blanket denial of my request under Section 87(2)(e) (or indeed, under any claim of exemption) builds a wall against disclosure of any information and provides no useful in put to determine the bona fides of your denial. Such a response stifles the purpose of the law.

Instead, the records should be identified in a functional categorical fashion after a review, and an explanation provided how the released documents in each category would interfere with enforcement proceedings, in order to effectuate the goal of providing information necessary to make a determination of the basis for the claim of exemption. The categories need to be distinct enough to allow review. To meet this standard, the agency needs to take the time to carefully go through the materials, document-by-document, and subdivide them into functional categories of records.

If you believe public disclosure of the DeVry documents would harm your investigation, these steps need to be taken. However, if you do not take these necessary steps to justify your exemption, then the records should be released. Otherwise, the state has not provided any information to justify withholding any DeVry files.

I understand the need to protect the integrity of an investigation, but if you cannot demonstrate that the investigation will be comprised by the release of the requested information, then have a right to review these documents. The onus is on the agency to at least, ab initio, explain how the release of the records would compromise its investigation. If you cannot provide adequate information to support this contention, then the materials must be provided.

I respectfully disagree with that the NYAG’s flat denial to produce any materials by recitation, and under color of, the three statutes you recited. I do, however, construe your response as an acknowledgement that you are in possession of the requested materials. If not, please say so.

In order to avoid needlessly resorting to legal process, please produce all the items set forth my request, excluding, redacting, or deleting the portions of the materials which you believe are exempt. If you are withholding any magterials based on the foregoing exemptions, please index, identify, categorize, and briefly describe any such materials withheld from production on those grounds.

The public information requested here involves the public’s interest in: (1) DeVry University’s potential violations of applicable state and federal law; and (2) the defense of tens of thousands of borrowers of billions of dollars in student loans under Title IV, and specifically their right to a defense for repayment under 20 U.S.C 1087e(h)1 and 34 CFR 685.206. If borrowers have a defense to repayment, and DeVry is unable to reimburse the government for such loans, the taxpayer will be on the hook for DeVry’s violations of applicable state law(s).

In short, the public interest in the information about not only the possible defenses available to DeVry’s student loan borrowers, but also the public taxpayer’s possible bail out for DeVry’s potential illegal conduct, is of significant public interest.

Thank you for your consideration. Nothing set forth herein or in connection with the modification of the request shall be considered a waiver of any of the undersigned rights or remedies in connection with the request. All such rights and remedies are hereby expressly reserved.

Sincerely,
Robert Teel

From: Robert Teel

Please consider the foregoing June 8, 2016 correspondence as the undersigned request for appeal.

Sincerely,
Robert Teel

From: Kathryn Sheingold

Dear Mr. Teel:

Please find my determination of your administrative appeal attached.

Sincerely,

Kathryn Sheingold
Records Appeals Officer

IMPORTANT NOTICE: This e-mail, including any attachments, may be confidential, privileged or otherwise legally protected. It is intended only for the addressee. If you received this e-mail in error or from someone who was not authorized to send it to you, do not disseminate, copy or otherwise use this e-mail or its attachments. Please notify the sender immediately by reply e-mail and delete the e-mail from your system.

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