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Bernard Ferguson v. U.S. Department of Education

September 13, 2011

BERNARD FERGUSON,
PLAINTIFF,
v.
U.S. DEPARTMENT OF EDUCATION, DEFENDANT.



The opinion of the court was delivered by: Frank Maas, United States Magistrate Judge.

USDC SDNY

DOCUMENT

ELECTRONICALLY FILED

DOC #: _________________

This pro se action is brought pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, by plaintiff Bernard Ferguson ("Ferguson"). Ferguson is an attorney who also serves as President of the International Association of Medical Colleges, a not-for-profit organization. In the latter capacity, Ferguson seeks documentation from the United States Department of Education ("Department") concerning foreign medical schools. The Department has moved for summary judgment on the ground that its search for such documents constituted a thorough, reasonable, and adequate response to Ferguson's request. For the reasons set forth below, the Department's motion for summary judgment is granted in part and denied in part.

DECISION AND ORDER

I. Background

A. National Committee on Foreign Medical Education and Accreditation

The Department is the entity responsible for keeping the records of the National Committee on Foreign Medical Education and Accreditation ("Committee"), which is charged with "determining whether the standards of accreditation used by a foreign country to accredit medical schools are comparable to the standards of accreditation applied to M.D. programs in the United States." (See Decl. of Charles J. Mula, dated Feb. 28, 2011 ("Mula Decl."), ¶ 6). Accordingly, a foreign country seeking a determination that its standards are comparable to those of medical school programs in the United States must comply with the Committee's "standardized submission process." (Id. ¶ 7). As part of that process, foreign country applicants must submit "a narrative about the governance and structure of the country's post-secondary education system; a description of the specific standards the country uses to evaluate its medical education programs and evidence documenting the application of such standards; and information concerning, and evidence documenting, matters such as evaluator qualifications, controls against conflict of interest, and monitoring." (Id.). The Committee, however, "does not mandate the submission of specific documents." (Id. ¶ 9). Thus, "[i]t is not unexpected or unusual for one country's submission to look different from that of another country." (Id.).

The Committee convenes twice each year to review applications from foreign countries. (Id. ¶ 11). The Committee "consider[s] the materials submitted and the testimony presented [from the country's representative in attendance]" and may determine at the meeting that "a country's medical school accreditation standards are comparable to U.S. standards." (Id.). The Committee's "determinations of comparability have a maximum duration of six years from the date of issuance, except where the Committee earlier withdraws, extends, or renews its determination." (Id.).

In 2007, when Ferguson submitted his FOIA request to the Department, "any accredited medical school in a country the Committee determined to be comparable could apply to the Department to participate in the Federal Family Education Loan ('FFEL') program." (Id. ¶ 12). If a medical school's application was approved, any enrolled student who was a citizen or permanent resident of the United States could receive an FFEL loan for his schooling, provided that the program's other eligibility requirements were met. (Id.). Within the Department, the Foreign Schools Team is responsible for overseeing foreign post-secondary schools that participate in the FFEL program. (Decl. of Barbara E. Hemelt, dated Feb. 28, 2011 ("Hemelt Decl."), ¶ 8). The Foreign Schools Team is part of the Department's Office of Federal Student Aid ("FSA"). (Id. ¶ 1).

B. FOIA Request

On August 3, 2007, Ferguson submitted a FOIA request ("Request") to the Department seeking the following information:

1. The last submission and/or documentation by all countries for recognition by the Department that the medical schools charte[re]d within that country are governed by accreditation standards that are comparable to those used in the United States.

2. The staff's recommendations to the Committee[.]

3. The Countries['] responses.

4. The . . . Secretary of Education's official notification of the Department's findings.

5. Any application/documents to the Department's Foreign Schools Team that the [foreign medical school] applicant meets the regulatory requirements to participate in the [FFEL] Program.

6. The final response to that application. (Decl. of Angela Arrington, dated Feb. 28, 2011 ("Arrington Decl."), Ex. A).

The Department's FOIA Service Center determined that the Office of Post-secondary Education ("OPE") held records responsive to the first four items of the Request and that the FSA maintained records responsive to items five and six. (Id. ¶¶ 9-10). Accordingly, on or about November 19, 2007, the Request was transmitted to OPE and FSA. (Id. ¶ 11).

C. Department's Initial Search and Production 1. OPE

OPE processed Ferguson's Request using its standard procedures. (See Mula Decl. ¶ 15). First, the OPE FOIA coordinator distributed the Request to OPE's Accreditation Division, which maintained responsive records. (Id. ¶ 16; see id. ¶ 13). The electronic records manager of the Accreditation Division determined that responsive records were stored in an electronic system known as "Panagon" and in a "shared file on the K:/ drive folder named ACE_DOCS." (Id. ¶¶ 13(c), 16). The Panagon system contains two folders: one organized by Committee meeting dates and the other organized by country. (Id. ¶ 13(c)). The meetings folder is organized chronologically and "indicates which countries are discussed at a given meeting." (Id.). The country folder "contains each country's application and supporting documentation." (Id.). The Panagon folder organized by meeting date contains the same data as the ACE_DOCS folder on the K drive. According to the Department, there are no other repositories within the Department of "records concerning the work of the Committee." (Id.).

In response to the Request, the electronic records manager of the OPE Accreditation Division searched both the Panagon system and the ACE_DOCS folder for "documentation and decisions pertaining to foreign countries' applications for Committee review from 2000 to 2007." (Id. ¶ 17). As the first part of that search, the manager "reviewed each meeting file in the Panagon system's Committee meeting folder for the relevant time period and identified which countries made applications for review. The manager then located the application and/or supporting documentation, if any, for each country by opening the file for that country in the Panagon system's country folder and the staff report and decision letter in the ACE_DOCS folder." (Id.).

The responsive records were electronically collected and stored on a shared drive. (Id. ¶ 18; see id. ¶ 13(e)). Thereafter, the responsive records, totaling 6,740 pages, were uploaded into the Department's electronic FOIA system, "FOIAXpress," and reviewed for material exempted from disclosure. (Id. ¶ 18; see id. ¶ 13(e), (f)). OPE determined that portions of 111 pages contained material subject to Exemptions 4 and 6 of FOIA, 5 U.S.C. § 552(b)(4), (b)(6), and redacted the records accordingly.*fn1 (Id. ¶ 19). On June 5, 2008, OPE sent Ferguson a CD containing the records responsive to items one through four of the Request and explained the basis for its withholding of certain information. (See Arrington Decl. Ex. B). Ferguson paid the fees associated with OPE's search and production of responsive records. (Id. ¶ 17).

2. FSA

FSA is the "sole custodian" of "documents concerning the work of the Foreign Schools Team with respect to eligibility certifications and recertifications of foreign medical schools that participate in" FFEL programs. (Hemelt Decl. ¶ 4). For that reason, the FOIA Service Center sent FSA items five and six of the Request, which sought information concerning applications submitted to the Foreign Schools Team. (Arrington Decl. ¶¶ 10-11). Barbara Hemelt, a team leader within the Foreign Schools Team, was responsible for conducting FSA's search for responsive records. (Hemelt Decl. ¶¶ 1, 3).

In December 2007, Hemelt contacted Ferguson to clarify the scope of items five and six of the Request because she considered them "ambiguous." (Id. ¶¶ 3, 10). The Department contends that Hemelt and Ferguson "agreed[] that he wished to receive records related to the Department's eligibility decisions made with respect to initial applications from foreign medical schools dating to 2000." (Id. ¶ 11). As Hemelt explains, the year 2000 was selected as the cut-off date because that was when the Department began to track eligibility decisions electronically through FSA's "management information repository" known as the Post-secondary Education Participants System ("PEPS").*fn2 (See id. ¶¶ 11-12). Hemelt informed Ferguson that between 2000 and 2007, "the Department had issued decisions on six initial applications from foreign medical schools." (Id. ¶ 13).

According to the Department, Ferguson further agreed to "modify the scope of the Request to include decisions on completed recertification applications as well as initial certifications, but to exclude pre-2000 certification decisions and records concerning pending applications (i.e., applications as to which the Department had made no final decision)." (Id.). The Department maintains that ...


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