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New York Legal Assistance Group, Inc. v. United States Department of Education

United States District Court, S.D. New York

July 12, 2017




         Plaintiff 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.

         I. BACKGROUND

         Plaintiff 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).

         On May 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.

         II. STANDARD

         Summary 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).

         FOIA 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).

         An 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 omitted).


         DOE 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' assertions).

         A. Exemption 5

         FOIA 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. 2005)).

         1. Attorney-Client Privilege

         “The 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.

         DOE 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.”

         DOE has 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.

         In contrast, DOE has not provided sufficient information to support the application of the attorney-client privilege to the remaining emails.[1] 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.

         The 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.

         2. Work-Product Doctrine

         The 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).

         DOE 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.

         Summary 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 at 43.

         DOE's 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 ...

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