United States District Court, S.D. New York
OPINION AND ORDER
G. SCHOFIELD UNITED STATES DISTRICT JUDGE.
New York Legal Assistance Group (“NYLAG”) brings
this action against Defendant United States Department of
Education (“DOE”), seeking access to DOE
documents pursuant to the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552. Both parties
cross-move for summary judgment. For the following reasons,
both motions are granted in part and denied in part.
NYLAG is a non-profit legal services organization that
investigates potentially harmful practices by proprietary
schools. On December 5, 2014, NYLAG submitted a FOIA request
to DOE, seeking “records relating to the
Secretary's implementation and interpretation of the
regulations concerning borrower defenses to the repayment of
student loans under the Direct Loan and FFEL Programs.”
NYLAG brought the present action on May 18, 2015, after DOE
failed to respond to its FOIA request. In the following
months, DOE worked with NYLAG to provide documents responsive
to NYLAG's request while clarifying and narrowing its
scope. Since June 2015, DOE has provided 2, 820 pages of
responsive records to NYLAG. DOE redacted information from a
number of these documents, and fully withheld (1) an
Administrative Wage Garnishment (“AWG”) manual,
(2) guidance concerning Total and Permanent Disability
(“TPD”) discharges and (3) drafts of manuals
prepared for attorneys prosecuting student loan collections
actions. In support of its decisions, DOE provided NYLAG with
a draft Vaughn index setting forth the bases for
withholding the information, which DOE contends is subject to
one or more exemptions from FOIA. See Vaughn v.
Rosen, 484 F.2d 820, 823 (D.C. Cir. 1973); see also
ACLU v. U.S. Dep't of Justice, 844 F.3d 126, 129 n.4
(2d Cir. 2016) (describing a Vaughn index).
26, 2016, NYLAG notified DOE that it objected to certain of
DOE's redactions. DOE reviewed the challenged redactions,
revised some of them and produced new versions of the
relevant documents to NYLAG. In a declaration, DOE represents
that the responses provided to NYLAG represent a full
document production with the exception of emails that DOE
will review and produce subject to a decision on the present
motions. DOE moves for summary judgment on its claimed FOIA
exemptions, and NYLAG cross-moves for summary judgment
seeking disclosure of certain of the challenged documents.
judgment is generally appropriate where the record before the
court establishes that “there is no genuine dispute as
to any material fact and the movant is entitled to judgment
as a matter of law.” Fed.R.Civ.P. 56(a). Where, as
here, a court is called upon to review agency action in
response to a FOIA request, the court reviews the
agency's determination to withhold requested information
de novo, see, e.g., Main St. Legal Servs., Inc. v.
Nat'l Sec. Council, 811 F.3d 542, 544 (2d Cir.
2016), and “proceeds primarily by affidavits in lieu of
other documentary or testimonial evidence.” Long v.
Office of Pers. Mgmt., 692 F.3d 185, 191 (2d Cir. 2012).
aims “to pierce the veil of administrative secrecy and
to open agency action to the light of public scrutiny.”
Cook v. Natl Archives & Records Admin., 758 F.3d
168, 173 (2d Cir. 2014) (quoting U.S. Dep 't of State
v. Ray, 502 U.S. 164, 173 (1991)). “Thus, FOIA
mandates the public disclosure of records of federal agencies
upon request, unless one of nine statutory exemptions
applies.” Id. (citing 5 U.S.C. § 552(a),
(b)(1)-(9)). Because FOIA manifests a “strong
presumption in favor of disclosure, ” Ray, 502
U.S. at 173, courts “construe FOIA exemptions narrowly,
resolving doubts in favor of disclosure and imposing on the
government the burden of showing that an asserted exemption
indeed applies.” Cook, 758 F.3d at 173;
accord Florez v. CIA, 829 F.3d 178, 182 (2d Cir.
2016) (exceptions to “FOIA's general principle of
broad disclosure of [g]overnment records have consistently
been given a narrow compass”) (citation omitted).
agency may carry its burden of demonstrating that an
exemption applies by “submitting declarations giving
reasonably detailed explanations why any withheld documents
fall within an exemption.” Florez, 829 F.3d at
182. Such declarations are accorded a presumption of good
faith when they are “accompanied by reasonably detailed
explanations of why material was withheld. Absent a
sufficiently specific explanation from an agency, a
court's de novo review is not possible and the
adversary process envisioned in FOIA litigation cannot
function.” Id. (quoting Halpern v.
FBI, 181 F.3d 279, 295 (2d Cir. 1999)). Where an
agency's declarations are “not controverted by
either contrary evidence in the record nor by evidence of
agency bad faith, summary judgment for the government is
warranted.” Ctr. for Constitutional Rights v.
CIA, 765 F.3d 161, 166 (2d Cir. 2014) (citation
invokes Exemptions 4, 5, 6, 7(C) and 7(E) in this litigation.
NYLAG challenges DOE's withholding or redaction of
certain documents only under Exemptions 5 and 7(E). Summary
judgment is granted to DOE without further discussion on the
portions of documents that NYLAG does not challenge. See,
e.g., Nat'l Day Laborer Org. Network v. U.S.
Immigration & Customs Enforcement Agency, 811
F.Supp.2d 713, 738 (S.D.N.Y. 2011) (plaintiffs waived
argument that defendants improperly asserted FOIA exemptions
where they opted not to challenge defendants'
Exemption 5 protects from disclosure “inter-agency or
intra-agency memorandums or letters that would not be
available by law to a party other than an agency in
litigation with the agency.” 5 U.S.C. § 552(b)(5).
The exemption “encompass[es] traditional common law
privileges against disclosure, including the attorney-client
and deliberative-process privileges, and the work-product
doctrine.” Brennan Ctr. for Justice at N.Y. Univ.
Sch. of Law v. U.S. Dep't of Justice, 697 F.3d 184,
189 (2d Cir. 2012) (citing Nat'l Council of La Raza
v. Dep't of Justice, 411 F.3d 350, 356 (2d Cir.
attorney-client privilege protects communications (1) between
a client and his or her attorney (2) that are intended to be,
and in fact were, kept confidential (3) for the purpose of
obtaining or providing legal assistance.” Id.
at 207 (internal citation omitted). In the government
context, the privilege “protects most confidential
communications between government counsel and their clients
that are made for the purpose of obtaining or providing legal
assistance.” In re Cty. of Erie, 473 F.3d 413,
418 (2d Cir. 2007). A government lawyer's analysis and
recommendations regarding whether agency policies and
positions comply with its legal obligations constitutes legal
advice for purposes of the privilege. See Id. at
422. The attorney-client privilege “may not be invoked
to protect a document adopted as, or incorporated by
reference into, an agency's policy.” La
Raza, 411 F.3d at 360.
seeks to apply the attorney-client privilege to (1) a manual
providing guidance to DOE attorneys handling AWG actions, (2)
emails between DOE employees concerning the AWG manual and
(3) emails between DOE employees and DOE attorneys concerning
(a) DOE procedures for processing borrower claims, (b)
interpretation of discharge regulations and (c) the
resolution of specific borrower issues. In support of its
redactions and withholdings, DOE offers two declarations by
DOE employee Ann Marie Pedersen and a revised Vaughn
index. In her second declaration, Pedersen avers that the AWG
emails and manual “contain confidential legal advice
concerning how to handle challenges to wage garnishment,
” and that the “confidentiality of these
documents has been maintained.” Pedersen further
declares that the remaining emails contain
“confidential communications” that “have
been maintained as confidential.”
provided sufficient information to exempt the AWG emails and
manual under the attorney-client privilege. (ED2432,
ED2433-69). The Pedersen declarations and Vaughn
index establish that they are (1) attorney-client
communications that (2) were intended to be, and were kept,
confidential and that (3) were made to obtain or give legal
advice. See, e.g., Brennan Ctr. for
Justice, 697 F.3d at 207. Likewise, DOE has provided
sufficient information to support the application of the
attorney-client privilege to email chains from November 10,
2014, and November 11, 2014, that “concern [the]
scope of [the] Secretary's authority and how that
authority may be used in connection with discharge of student
loans [along with] interpretation of regulations related
to” the discharge of such loans where “it is
probable that [DOE] would pursue legal claims against the
subject institution.” (ED2383, ED 2412-17). The
Vaughn index description of these documents
establishes that they are attorney-client communications made
for the purpose of requesting and giving legal advice, while
the second Pedersen declaration establishes that the
documents were intended to be confidential and were
maintained as such. See Id. Summary judgment is
granted to DOE as to these documents.
contrast, DOE has not provided sufficient information to
support the application of the attorney-client privilege to
the remaining emails. Unlike the AWG emails, the second Pedersen
declaration does not characterize any of the remaining emails
as requesting or giving legal advice, and nothing in the
Vaughn index supports the inference that the
“attorney-client communications” referenced in
the index were anything other than emails that happened to
include counsel on them. Absent any evidence that these
emails were intended “for the purpose of obtaining or
providing legal assistance, ” DOE has not met its
burden of demonstrating that the attorney-client privilege
applies. Id. DOE's motion for summary judgment
is denied as to these documents.
January 28, 2003, memorandum by attorney Vanessa Burton
prepared at the request of DOE and discussing “the
strength of the Department's legal position in response
to a borrower's stated defense to loan repayment”
(ED2853) would fall within the scope of the attorney-client
privilege, except that neither the Vaughn index nor
the Pedersen declarations attest that it was intended to be,
or was maintained as, confidential. Thus, summary judgment is
denied to DOE on this document as well.
work-product doctrine “provides qualified protection
for materials prepared by or at the behest of counsel in
anticipation of litigation or for trial.” In re
Grand Jury Subpoena Dated July 6, 2005, 510
F.3d 180, 183 (2d Cir. 2007). A document is protected if,
“in light of the nature of the document and the factual
situation in the particular case, the document can fairly be
said to have been prepared or obtained because of
the prospect of litigation, ” Schaeffler v. United
States, 806 F.3d 34, 43 (2d Cir. 2015) (citation
omitted), even if the document's purpose was not to
“assist in” litigation. United States v.
Adlman, 134 F.3d 1194, 1198 (2d Cir. 1998).
“Conversely, protection will be withheld from documents
that are prepared in the ordinary course of business or that
would have been created in essentially similar form
irrespective of the litigation.” Schaeffler,
806 F.3d at 43 (citation omitted).
seeks to apply the work product doctrine to (1) certain email
chains, (2) a draft response letter “prepared by an
attorney in contemplation of potential future litigation,
” (3) the January 28, 2003 memorandum from Vanessa
Burton and (4) portions of the 2016 PCA manual, along with
several documents that are exempt from disclosure under the
attorney-client privilege as discussed above.
judgment is granted as to DOE's motion to apply the work
product doctrine to the draft response letter (ED2851), the
Burton memorandum (ED2853) and an email chain among multiple
attorneys containing “discussion and analysis . . . of
the strength of [DOE's] positions on various claims or
defenses to repayment, in contemplation of potential further
litigation against the borrowers” (ED2860-65). As each
of these documents was prepared by an attorney in
anticipation of litigation, the work product doctrine
protects them from disclosure. See In re Grand Jury
Subpoena, 510 F.3d at 183; Schaeffler, 806 F.3d
motion for summary judgment and work product protection is
denied as to certain emails that contain allegedly
predecisional or deliberative discussion of (1) regulatory
interpretation and/or (2) resolution of a specific
borrower's issues. (ED2478-81, ED2482-84, ED2522-25).
Nothing in the Vaughn index or the Pedersen
declarations indicates ...