N.Y. Legal Assistance Group, Inc. v. Dep't of Educ., No. 15-3818, 2017 WL 2973976 (S.D.N.Y. July 12, 2017) (Schofield, J.)

N.Y. Legal Assistance Group, Inc. v. Dep't of Educ., No. 15-3818, 2017 WL 2973976 (S.D.N.Y. July 12, 2017) (Schofield, J.)

Re:  Request for records concerning implementation and interpretation of regulations regarding borrower defenses to repayment of student loans

Disposition:  Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment

• Exemption 5, Attorney-Client Privilege:  The court holds that "[defendant's] declarations and Vaughn index establish that ["a manual providing guidance to DOE attorneys handling ['Administrative Wage Garnishment' (AWG)] actions, (2) emails between DOE employees concerning the [wage garnishment manual] and (3) emails between DOE employees and DOE attorneys concerning . . . interpretation of discharge regulations"] 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."  However, the court also finds that "[defendant's] 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."
   
• Exemption 5, Attorney Work-Product:  The court holds that "[s]ummary judgment is granted as to DOE's motion to apply the work product doctrine to [a] draft response letter . . ., [a] memorandum . . . 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[.]'"  "As each of these documents was prepared by an attorney in anticipation of litigation, the work product doctrine protects them from disclosure."  "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."  "Nothing in the Vaughn index or [defendant's] declarations indicates that the emails were prepared because of the prospect of litigation."  The court similarly finds that attorney work-product does not apply to "portions of [the] PCA Procedures Manual" because "neither the Vaughn index nor [defendant's] declarations . . . represent[]" "that any designated portion of the manual was created 'by or at the behest of counsel[.]'"
   
• Exemption 5, Deliberative Process Privilege:  The court holds that "DOE's motion for summary judgment is granted as to communications among DOE employees discussing (1) how to handle borrower defense claims and (2) how specific borrowers' issues should be resolved."  "Based on the Vaughn index and [defendant's] declarations, these documents were internal communications among agency employees identifying issues raised by borrower defense claims, discussing what regulations might apply to such claims and discussing how those cases should be handled."  The court finds similarly with regard to the withholding of "emails and attachments concerning Corinthian Colleges loans[,]" "draft guidance on school-based loan discharges and an email chain discussing the draft guidance[,]" and "'predecisional deliberation regarding regulatory interpretation.'"  On the last category, the court specifically responds to plaintiff's "argu[ment] that these documents could constitute DOE's working law 'to the extent that [they] describe [DOE's] working, practical understanding of its authority or policies,' and that DOE has not provided sufficient information to make that determination[;] and finds that "nothing in the description of the documents leads to the inference that the 'deliberation regarding regulatory interpretation' was actually a statement of the agency's working law."  The court denies summary judgment as to "'[g]uidelines establishing the methodology and analysis tools by which [DOE] develops micro and macro policy changes."  The court also denies summary judgment as to certain email chains because defendant's "description[s] of the document [are] too vague to determine whether the information contained within [them] is actually predecisional and deliberative."
   
• Exemption 7(E) & Exemption 7, Threshold:  The court holds that "[t]hough DOE has provided sufficient evidence to demonstrate that the contested documents are enforcement guidelines, the disclosure of which could reasonably be expected to risk circumvention of private loan obligations, DOE fails to meet its burden of demonstrating the threshold issue necessary to prove the applicability of Exemption 7(E) – that the challenged documents were compiled for 'law enforcement purposes.'"  Because "DOE seeks to prevent violations of the terms of student loan contracts, not violations of the law[,]" the court finds that "[t]he PCA manual and ['Total and Permanent Disability'] guidelines . . . do not qualify as 'law enforcement' documents."  The court explains that "the fact that DOE has a legal mandate to collect debt does not mean that the collection of the debt serves a 'law enforcement purpose,' which means preventing, prosecuting or punishing violations of the law[]" and, "although DOE credibly argues that disclosure of its enforcement mechanisms could lead to borrowers' circumventing their contractual obligations, DOE cannot 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."