United States District Court, N.D. New York
MEMORANDUM-DECISION AND ORDER
LAWRENCE E. KAHN U.S. DISTRICT JUDGE.
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.
FFEL and Guaranty Agency Overview
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.
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.
Plaintiff's FOIA Request
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.
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
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
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.
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 ...