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Brozzo v. United States Department of Education

United States District Court, N.D. New York

May 11, 2017

FRANCIS BROZZO, Plaintiff,
v.
UNITED STATES DEPARTMENT OF EDUCATION, Defendant.

          MEMORANDUM-DECISION AND ORDER

          LAWRENCE E. KAHN U.S. DISTRICT JUDGE.

         I. INTRODUCTION

         Pro se Plaintiff Francis Brozzo commenced the present action against the United States Department of Education (“DOE”) pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. Dkt. No. 1 (“Complaint”). On November 17, 2015, Defendant filed a motion for summary judgment. Dkt No. 28. The Court denied the motion on September 9, 2016, but permitted Defendant to renew its motion within ninety days of the Court's decision. Brozzo v. U.S. Dep't of Educ., No. 14-CV-1584, 2016 WL 4734650, at *6-7 (N.D.N.Y. Sept. 9, 2016) (Kahn, J.). Presently before the Court is Defendant's Renewed Motion for Summary Judgment, Dkt. Nos. 54-1 (“Motion”), 54-2 (“Defendant's Memorandum”), 54-3 (“Defendant's Exhibits”), 54-4 (“Defendant's Statement of Material Facts”), as well as Plaintiff's Cross-Motion for Summary Judgment, Dkt. Nos. 55 (“Cross-Motion”), 55-1 (“Plaintiff's Exhibits”), 55-2 (“Plaintiff's Memorandum”), 55-3 (“Plaintiff's Statement of Material Facts”). For the following reasons, Defendant's Motion is granted and Plaintiff's Cross-Motion is denied.

         II.BACKGROUND

         A. FFEL and Guaranty Agency Overview

         The Federal Family Education Loan (“FFEL”) programs are student-loan programs through which lenders loan money for the cost of attending a post-secondary school. Def.'s Exs., Ex. T, ¶ 2. These loans are “held by the lender, and guaranteed by an agency under agreement with the Secretary of [the Department of] Education . . . to administer a loan guarantee program.” Id. ¶ 5. If a borrower defaults on one of the loans, the lender assigns it to a guaranty agency (“GA”), and the GA becomes the holder of the loan. Id. ¶ 6. Then, the GA is “reimbursed by the Secretary for all or part of the amount of default claims it pays to the lenders.” Id. Unless the loan is assigned to Defendant, however, Defendant is not the holder of the loan. Id. ¶ 8.

         It is undisputed that in April 1993, Plaintiff defaulted on ten of his outstanding FFEL loans. Def.'s Mem. at 4. These loans were assigned to the New York State Higher Education Services Corporation (“NYSHESC”) in 1994 for collection. Id. In 2008, after NYSHESC obtained a judgment in state court against Plaintiff, his loans were transferred to the Education Credit Management Corporation (“ECMC”). Id. ECMC thereby became the holder of the loans. Id. The loans, and their documents, were never assigned or transferred to Defendant. Id. Further, the agreements between the entities do not “grant [Defendant] regular access to GA records until such time as the loan has been assigned to [Defendant].” Def.'s Exs., Ex. T, ¶ 9.

         B. Plaintiff's FOIA Request

         By letter dated July 29, 2014, Plaintiff requested documents pertaining to his student loans from Defendant. Def.'s SMF ¶ 2; Plaintiff's Response Statement of Material Facts (“Pl.'s Resp. SMF”) ¶ 2. Specifically, Plaintiff requested: (1) “[a] copy of any/all claims for reimbursement of defaulted loans made by Key Bank, ” the lender, to the NYSHESC, the guarantor; (2) “[a] copy of all documents showing NYSHESC['s] payment of . . . reimbursement claims” from Plaintiff's student loan debts made to Key Bank; (3) “[a] copy of all documents showing NYSHESC['s] reinsurance claim []concerning” Plaintiff's defaulted student loans that were submitted to Defendant; (4) “[a] copy of all documents showing [Defendant's] approval of NYSHESC['s] reinsurance claim[s]; and (5) “[a] copy of documents showing NYSHESC's assignment and transfer of title of [P]laintiff's loans to [Defendant], including . . . documents showing any reimbursement of costs related to assignment and transfer of title . . . paid by [Defendant] to NYSHESC or paid by NYSHESC to [Defendant].” Def.'s SMF ¶ 2.

         Plaintiff's request was received in Defendant's FOIA Service Center and forwarded to Ann Marie Pedersen, Director of the Correspondence Unit within the Communications Office of Defendant's Office of Federal Student Aid (“FSA”). Def.'s SMF ¶¶ 2, 9; Pl.'s Resp. SMF ¶¶ 2, 9. FSA's Business Operations Group compiled documents related to Plaintiff's request and sent them to him. Def.'s SMF ¶ 4; Pl.'s Resp. SMF ¶ 4-5. The documents, which Plaintiff received on September 13, 2014, included: (1) “[a] copy of [Plaintiff's] National Student Loan Data System ([“]NSLDS[”]) aggregate loan history; (2) “[a] copy of the Transitional Guaranty Agency's organizational contact list; (3) “[a] copy of the contact information for Key Bank”; and (4) contact information for Borrower Services, Customer Care Group, Key Bank of New York, and Transitional Guarantee Agency. Def.'s SMF ¶¶ 5-6; Pl.'s Resp. SMF ¶¶ 5-6.

         On September 13, 2014, Plaintiff appealed Defendant's action, alleging that Defendant failed to provide him with the documents he requested or “the legal basis for the denial of his request.” Def.'s SMF 7; Pl.'s Resp. SMF ¶ 7. Defendant responded to Plaintiff's appeal by letter dated September 29, 2014, informing Plaintiff that an administrative review of his request was underway. Def. SMF ¶ 8; Pl.'s Resp. SMF ¶ 8.

         C. Procedural History

         The procedural history of this case is set out in detail in the Court's previous order. Brozzo, 2016 WL 4734650, at *2. There, the Court held that Defendant was entitled to rely solely on Ms. Pedersen's declaration to demonstrate that (1) it performed an adequate search and (2) no documents were improperly withheld from Plaintiff. Id. at *5. Reliance on the declaration was permitted because the Court found it to (1) provide sufficient detail regarding Defendant's search, (2) be non-conclusory, and (3) meet the standard for the presumption of good faith. Id. Defendant's first Motion for Summary Judgment was denied, however, because Defendant had not met its burden of showing that the requested records were not “agency records” in the context of FOIA. Id. at *5-6. The Court gave Defendant permission to renew its motion in order to meet this burden. Id. at *7.

         Defendant submitted the instant Motion on December 9, 2016. Mot. With its Motion, Defendant submitted a new declaration from Pedersen, which outlines Defendant's actions in response to Plaintiff's request and states that the requested documents were not DOE records. Def.'s Exs., Ex. T, ¶¶ 8-14. Defendant argues that the records were not agency records because “they were not created or obtained by D[efendants] and were not controlled and/or maintained by D[efendants], at the time of [P]laintiff's FOIA request.” Def.'s Mem. at 6. Thus, Defendant contends that ...


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