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American Civil Liberties Union Foundation, Inc. v. United States Department of Education

United States District Court, D. Massachusetts

April 2, 2018

AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC., AMERICAN CIVIL LIBERTIES UNION, and NATIONAL CONSUMER LAW CENTER, Plaintiffs,
v.
UNITED STATES DEPARTMENT OF EDUCATION, Defendant.

          MEMORANDUM AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

          ALLISON D. BURROUGHS, U.S. DISTRICT JUDGE

         Plaintiffs American Civil Liberties Union Foundation, Inc., American Civil Liberties Union, and National Consumer Law Center filed a request under the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”) in May 2015 seeking the disclosure from Defendant United States Department of Education of certain documents relating to the servicing of student loans. After Defendant disclosed some, but not all, of the documents requested by Plaintiffs, Plaintiffs filed this lawsuit in March 2016 seeking an order directing Defendant to make additional disclosures. [ECF No. 1]. Now before the Court are Defendant's Motion for Summary Judgment [ECF No. 44] and Plaintiffs' Cross-Motion for Summary Judgment [ECF No. 50]. For the reasons set forth below, the motions are denied in part and granted in part.

         I. FACTUAL AND PROCEDURAL BACKGROUND[1]

         The Office of Federal Student Aid (“FSA”) within the Department of Education (“ED”) is responsible for a range of functions pertaining to the disbursement, servicing, and collection of student loans. ED contracts with private loan servicers and private collection agencies (“PCAs”) to service loans and collect on defaulted loans. Borrowers are entitled to certain benefits, including deferments, forbearances, and options for repayment plans. Additionally, there are programs available after a borrower defaults, such as cancellation due to disability. Servicers and PCAs are responsible for communicating with borrowers about these benefits. ED has developed policies and procedures to enable FSA to conduct oversight of the contractors and PCAs servicing and collecting on loans, including a PCA Procedures Manual that sets forth instructions to the PCAs, such as detailing collection procedures. Plaintiffs seek information concerning ED's oversight of the PCAs.[2]

         Plaintiffs' FOIA request sought information about Defendant's relationship with PCAs, policies governing PCAs' debt collection activities, the manner in which PCAs are compensated, and information about Defendant's policies for monitoring the impact of student debt on communities of color, if such policies exist. The complete request is set forth in the Declaration of Ann Marie Pedersen. [ECF No. 49 at 2-6]. Defendant produced documents in December 2015, March 2016, and several times after this lawsuit was filed, beginning in July 2016.

         Plaintiffs challenge Defendant's withholding or redaction of several documents, including portions of the PCA Procedures Manual, a draft “Corrective Action Plan, ” emails sent between agency employees concerning the development of Frequently Asked Questions related to collection fees, emails among agency employees and between agency employees and loan servicers concerning how to respond to borrowers' requests for assistance, and portions of the PCA Procedures Manual.

         II. LEGAL STANDARD

         FOIA “was intended to expose the operations of federal agencies ‘to the light of public scrutiny.'” Carpenter v. U.S. Dep't of Justice, 470 F.3d 434, 437 (1st Cir. 2006) (quoting Dep't of the Air Force v. Rose, 425 U.S. 352, 372 (1976)). The policy underlying FOIA is “one of broad disclosure, and the government must supply any information requested by any individual unless it determines that a specific exemption, narrowly construed, applies.'” N.H. Right to Life v. U.S. Dep't of Health & Human Servs., 778 F.3d 43, 49 (1st Cir. 2015) (quoting Church of Scientology Int'l v. U.S. Dep't of Justice, 30 F.3d 224, 228 (1st Cir. 1994)). “FOIA provides that certain categories of materials are exempted from the general requirements of disclosure, ” but these nine exemptions “are to be construed narrowly, with any doubts resolved in favor of disclosure.” Carpenter, 470 F.3d at 438. “The government bears the burden of proving that withheld materials fall within one of the statutory exemptions, and district courts are required to make de novo determinations as to the validity of the asserted exemptions.” Id. (citing 5 U.S.C. § 552(a)(4)(B)) (additional citations omitted). To that end, the government is obligated to provide “a reasonably detailed explanation for its withholdings” in order to “‘afford the FOIA requester a meaningful opportunity to contest, and the district court an adequate foundation to review, the soundness of the withholding.'” Church of Scientology, 30 F.3d at 231, 233 (quoting Wiener v. F.B.I., 943 F.2d 972, 977 (9th Cir. 1991)).

         FOIA cases are typically decided on motions for summary judgment. Georgacarakos v. FBI, 908 F.Supp.2d 176, 180 (D.D.C. 2012). A movant is entitled to summary judgment when it shows that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Where the parties have presented cross-motions for summary judgment, the Court must “evaluate each motion independently and determine ‘whether either of the parties deserves judgment as a matter of law on facts that are not disputed.'” Matusevich v. Middlesex Mut. Assur. Co., 782 F.3d 56, 59 (1st Cir. 2015) (quoting Barnes v. Fleet Nat'l Bank, N.A., 370 F.3d 164, 170 (1st Cir. 2004)).

         III. DISCUSSION

         A. Exemption 7

         Defendant withheld certain material concerning its strategies for debt collection pursuant to FOIA Exemption 7, which allows the government to withhold “records or information compiled for law enforcement purposes” where, inter alia, the records “would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7). The information at issue here includes portions of the PCA Procedures Manual that provide guidelines for collecting on a defaulted debt, including information about consolidation, wage garnishment, and rehabilitation agreements, as well as an agreement between ED and the Department of the Treasury regarding Treasury Offset Procedures, which sets forth guidance on how the two agencies collect on student loan debt.

         FOIA does not provide a definition of “law enforcement purposes, ” and few cases have grappled with the meaning of that phrase in a context similar to the present case. Defendant argues that because it is required by statute to attempt to collect on student loan debt, it is engaged in law enforcement activity when it does so. See 31 U.S.C. § 3711(a)(1) (“The head of an executive . . . agency . . . shall try to collect a claim of the United States Government for money or property arising out of the activities of, or referred to, the agency . . . .”). Plaintiffs respond that because borrowers' repayment obligations arise from a contract, and not from a statute or administrative law, the violation of the terms of the contract is not a violation of the law, and the collection of the debt is not a law enforcement activity.

         This question arose in a New York federal district court case in which another advocacy organization requested from Defendant essentially the same documentation at issue here. That court determined that the PCA Procedures Manual did not qualify as a “law enforcement” document because “[t]he term ‘law enforcement' pertains to the prevention and punishment of violations of the law, ” and the agency was seeking “to prevent violations of the terms of student loan contracts, not violations of the law.” N.Y. Legal Assistance Grp., Inc. v. U.S. Dep't of Educ., No. 15 CIV. 3818 (LGS), 2017 WL 2973976, at *9 (S.D.N.Y. July 12, 2017). Furthermore, the court reasoned, ED could not “prove that disclosure ‘could reasonably be expected to risk circumvention of the law, ' because the borrowers would not be circumventing the law-they would be circumventing the terms of their contract.” Id. (quoting 5 U.S.C. § 552(b)(7)(E)). The Court concurs with this reasoning. “The term ‘law enforcement' in Exemption 7 refers to the act of enforcing the law, both civil and criminal.” Pub. Emps. for Envtl. Responsibility v. U.S. Section, Int'l Boundary & Water Comm'n, U.S.-Mexico, 740 F.3d 195, 203 (D.C. Cir. 2014) (citing Black's Law Dictionary 964 (9th ed. 2009) as “defining ‘law enforcement' as the ‘detection and punishment of violations of the ...


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