Brozzo v. U.S. Department of Education

Filing 65

MEMORANDUM-DECISION AND ORDERED, that Defendants Motion for Summary Judgment (Dkt. No. 54-1) is GRANTED; and it is further ORDERED, that Plaintiffs Cross-Motion for Summary Judgment (Dkt. No. 55) is DENIED; and it is further ORDERED, that Plaintiffs Complaint (Dkt. No. 1) is DISMISSED. Signed by Senior Judge Lawrence E. Kahn on May 11, 2017. (Copy served via regular and certified mail)(sas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
FRANCIS BROZZO,
Plaintiff,
-against-

7:14-CV-1584 (LEK/TWD)

UNITED STATES DEPARTMENT OF
EDUCATION,
Defendant.

MEMORANDUM-DECISION AND ORDER
I.

INTRODUCTION
Pro se 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.

II.

BACKGROUND
A. FFEL and Guaranty Agency Overview
The 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.
It is 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.
B. Plaintiff’s FOIA Request
By 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
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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.
Plaintiff’s 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 ¶¶ 5–6.
On 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
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letter dated September 29, 2014, informing Plaintiff that an administrative review of his request
was underway. Def. SMF ¶ 8; Pl.’s Resp. SMF ¶ 8.
C. Procedural History
The 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.
Defendant 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 summary judgment is appropriate. Id. at 12. On December 30, 2016, Plaintiff
submitted a Cross-Motion in which he argues that the records are agency records because (1)

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Defendant is the holder of Plaintiff’s loans (2) the records were in Defendant’s control at the time
of the FOIA request and (3) the records were integrated into Defendant’s files. Pl.’s Mem. at 10.
Defendant filed a response in opposition to this Cross-Motion on January 19, 2017. Dkt.
Nos. 60 (“Defendant’s Opposition”); 60-1 (“Defendant’s Opposition Exhibits”); 60-2 (“Response
to Plaintiff’s Statement of Material Facts”). Attached to Defendant’s Opposition was a
supplemental declaration by Ms. Pedersen, which further explains her assertion that although
Defendant is a claim holder, it is not the loan holder. Def.’s Opp’n Exs., Ex. AA, ¶¶ 1–5.
Defendant further argues that the evidence submitted does not demonstrate that it had control
over the requested documents. Def.’s Opp’n at 1. In so doing, Defendant challenges Plaintiff’s
analysis and interpretation of the DOE regulations. Id. at 1, 3–4. The Court issued a Text Order
on January 30, 2017, giving Plaintiff the option to file a sur-reply, as Defendant’s Response
contained evidence and arguments raised for the first time. Dkt. No. 63. Plaintiff filed a sur-reply
on February 10, 2017. Dkt. No. 64 (“Sur-Reply”). In his Sur-Reply, Plaintiff contends that the
agreements between Defendant and ECMC show Defendant has control over the loans, in part,
because they contain tasks requested by Defendant to ECMC, which resulted in changes to
ECMC’s financial operations. Sur-Reply at 6–7. Plaintiff also claims that Defendant has an
“unfair advantage” because the agency is the only party with “access to all the facts.” Id. at 9.
III.

LEGAL STANDARD
Rule 56 of the Federal Rules of Civil Procedure instructs courts to grant summary

judgment if “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). Although “[f]actual disputes that are
irrelevant or unnecessary” will not preclude summary judgment, “summary judgment will not lie
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if . . . the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Taggart v. Time, Inc., 924
F.2d 43, 46 (2d Cir. 1991) (“Only when no reasonable trier of fact could find in favor of the
nonmoving party should summary judgment be granted.”).
The party seeking summary judgment bears the burden of informing the court of the basis
for the motion and of identifying those portions of the record that the moving party claims will
demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). Similarly, a party is entitled to summary judgment when the nonmoving party
carries the ultimate burden of proof and has failed “to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof at trial.” Id.
at 322.
In attempting to repel a motion for summary judgment after the moving party has met its
initial burden, the nonmoving party “must do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). At the same time, a court must resolve all ambiguities and draw all
reasonable inferences in favor of the nonmoving party. Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150 (2000); Nora Beverages, Inc. v. Perrier Grp. of Am., Inc., 164 F.3d 736,
742 (2d Cir. 1998). Thus, a court’s duty in reviewing a motion for summary judgment is
“carefully limited” to finding genuine disputes of fact, “not to deciding them.” Gallo v.
Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1224 (2d Cir. 1994).

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IV.

DISCUSSION
FOIA “requires federal agencies to release certain documents in response to requests from

the public.” Labella v. FBI, No. 11-CV-23, 2012 WL 948567, at *6 (E.D.N.Y. Mar. 19, 2012)
(quoting Sample v. Bureau of Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006)). The purpose of
FOIA is to “promote honest and open government,” Grand Cent. P’ship, Inc. v. Cuomo, 166 F.3d
473, 478 (2d Cir. 1999), and “to ensure public access to information created by the government
in order to hold the governors accountable to the governed,” Tigue v. U.S. Dep’t of Justice, 312
F.3d 70, 76 (2d Cir. 2002). FOIA provides that, following an appropriate request for records, an
agency “shall make the records promptly available to any person.” 5 U.S.C. § 552(a)(3)(A).
In its previous order, the Court ruled that (1) there is no reason to set aside the Pedersen
declarations’ presumption of good faith and (2) Defendant is entitled to rely solely on the
declarations to demonstrate that it performed an adequate search and that no documents were
improperly withheld from Plaintiff. Brozzo, 2016 WL 4734650, at *5; see also Grand Cent.
P’ship, 166 F.3d at 478 (noting that a court in a FOIA case can grant summary judgment on the
sole basis of agency affidavits as long as they are non-conclusory and are not called into question
by contradictory evidence or evidence of bad faith); Wilner v. Nat’l Sec. Agency, 592 F.3d 60,
69 (2d Cir. 2009) (same); Wood v. FBI, 432 F.3d 78, 85 (2d Cir. 2005) (upholding a district
court’s decision that found declarations submitted by the government to be sufficient since they
were detailed, nonconclusory, and submitted in good faith). Thus, the parties’ motions, as well as
this order, turn on whether the requested documents constitute “agency records” under FOIA.
FOIA empowers district courts “to order the production of any agency records improperly
withheld.” U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989) (quoting 5 U.S.C. §
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552(a)(4)(B)). Under FOIA, agencies are required “to review, manually or by automated means,
agency records for the purpose of locating those records, which are responsive to a request.” 5
U.S.C. § 552(a)(3)(D). Documents are considered “agency records” within the meaning of FOIA
when two criteria are met: (1) the agency created or obtained the records and (2) the agency was
in control of the records at the time of the FOIA request. Tax Analysts, 492 at 144–45; Fox News
Network, LLC v. Bd. of Governors of the Fed. Reserve Sys., 601 F.3d 158, 160 (2d Cir. 2010).
Agencies bear the burden of demonstrating that the records sought in a FOIA request are not
agency records. Tax Analysts, 492 U.S. at 142 n.3.
As to the “created or obtained” prong of the Tax Analysts test, “‘FOIA applies to records
which have in fact been obtained’ or created.” Ctr. for Medicare Advocacy, Inc. v. U.S. Dep’t of
Health & Human Servs., No. 10-CV-645, 2011 WL 2119226, at *3 (D. Conn. May 26, 2011)
(quoting Forsham v. Harris, 445 U.S. 169, 186 (1980)). Documents that an agency could have
acquired are not agency records “unless and until that right is exercised.” Forsham, 445 U.S.
at 181. Courts are split on whether this standard can be met if an agency constructively obtains
and controls the records. See Am. Small Bus. League v. U.S. Small Bus. Admin., 623 F.3d 1052,
1054 (9th Cir. 2010) (per curiam) (noting that only a handful of courts have applied the
constructive control and obtainment theory, while others have rejected it). Compare Ctr. for
Medicare Advocacy, Inc., 2011 WL 2119226, at *4 (questioning the validity of the constructive
control and obtainment theory), and Bloomberg v. Bd. of Governors of the Fed. Reserve Sys.,
649 F. Supp. 2d 262, 275 (S.D.N.Y. 2009) (holding that Supreme Court precedent bars
application of the theory), with Missouri ex rel. Garstang v. U.S. Dep’t of the Interior, 297 F.3d

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745, 751 (8th Cir. 2002) (applying the theory), and Burka v. U.S. Dep’t of Health & Human
Servs., 87 F.3d 508, 515 (D.C. Cir. 1996) (same).
As to the second prong of the Tax Analysts test, the D.C. Circuit has held that a court
should assess whether an agency controls the records at the time of a FOIA request using the
following factors:
(1) the intent of the document’s creator to retain or relinquish control
over the record, (2) the ability of the agency to use and dispose of the
record as it sees fit, (3) the extent to which agency personnel have
read or relied upon the document, and (4) the degree to which the
document was integrated into the agency’s record systems or files.
Burka, 87 F.3d at 515.
Notably, neither the Second Circuit nor any district courts within the circuit have applied
the Burka standards. Ctr. for Medicare Advocacy, Inc., 2011 WL 2119226, at *4. In fact, at least
one court within this circuit rejected the theory and applied a narrower interpretation of Forsham
and its progeny. See Bloomberg, 649 F. Supp. 2d at 275 (“The Supreme Court’s teachings in Tax
Analysts, Forsham, and Kissinger certainly do not compel adoption of the constructive
obtainment and control theory, and thus this Court declines to do so under the facts presented
here.”). It is not necessary for the Court to reach the question of whether Burka’s constructive
obtainment and control theory applies, however, because Defendant has met its burden of
proving that the requested documents are not agency records regardless of whether the theory
applies.
The supervision and control that existed in Burka were much more extensive than the
alleged supervision and control here. In Burka, the agency was deemed to have constructively
obtained the documents because the agency (1) ordered their creation, (2) planned to take
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possession of them at a definitive point, (3) prohibited the entities involved with the documents
from making any independent disclosures, and (4) “read and relied significantly on the
information in writing articles and developing agency policies.” 87 F.3d at 515.
Although the D.C. Circuit will consider records to be agency records if the agencies have
access to them, the access and supervision must be much more significant than that which
Defendant had over the documents requested by Plaintiff. In fact, the agency must have either
used them or integrated them into its files. Judicial Watch, Inc. v. Fed. Hous. Fin. Agency, 646
F.3d 924, 927 (D.C. Cir. 2011); see also Beveridge & Diamond, P.C. v. U.S. Dep’t of Health &
Human Servs., 85 F. Supp. 3d 230, 237, 239–40 (D.D.C. 2015) (ruling that extensive supervision
and control over documents did not exist because the agency (1) did not have the ability to use
and dispose of them, (2) never had possession of them, (3) had no involvement in their creation,
and (4) had no plans to obtain them).
Further, in the widely cited In Defense of Animals v. NIH, the District Court for the
District of Columbia applied the constructive obtainment and control theory and found that the
requested records were agency records, but the supervision and access were much more extensive
than in the instant case. 543 F. Supp. 2d 83, 100–01 (D.D.C. 2008). There, the court decided that
the requested records were “agency records” after finding that the agency (1) owned the facility
where the documents were kept, (2) owned some of the documents and had full access to others,
and (3) actually received at least one report that some of the files were being created on-site. Id.
Defendant does not possess the level of supervision and control necessary for documents
to be considered agency records under the constructive obtainment and control theory. Just as in
Judicial Watch, Inc., the requested documents were never used or integrated into Defendant’s
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records or files. Def.’s SMF ¶ 25; Pl.’s Resp. SMF ¶ 25. Next, it is undisputed that the records
were not actually created by Defendant; and the records were not created on Defendant’s behalf
or even created with the expectation that the loans (and thus access to the records) would ever be
assigned to Defendant, “as the vast majority of FFEL borrowers repay their loans.” Def.’s SMF
¶ 17; Pl.’s Resp. SMF ¶ 17.
Plaintiff’s reliance on 34 C.F.R. § 682.414(a)(6)(i) to show that Defendant has control of
the records is misplaced. First, that provision only concerns affidavits or testimony required by
Defendant to establish the admissibility of loan records at a legal proceeding. 34 C.F.R.
§ 682.414(a)(6)(i)(A)–(B). Second, a plain reading of the regulation reveals that Defendant’s
right to request materials is limited to loans that have been assigned to it. See id.
§ 682.414(a)(6)(i) (“Upon the Secretary’s request with respect to a particular loan or loans
assigned to the Secretary . . . the guaranty agency . . . must cooperate with the Secretary.”).
Plaintiff’s reading of the regulation, that the Secretary can request materials concerning either (1)
any loan, regardless of its assignment, or (2) loans assigned to the Secretary, is erroneous because
it would render the “assigned to the Secretary” language superfluous. See United States v.
Jicarilla Apache Nation, 564 U.S. 162, 185 (2011) (noting that courts should refrain from
interpreting a legislative act in a way that renders another portion of the act superfluous). But
even if Defendant could request and obtain Plaintiff’s requested records under the regulation,
they would still not constitute agency records because Defendant did not use or integrate them
into its file system. Judicial Watch, 646 F.3d at 927.
Additionally, the agreements between NYSHESC and Defendant establish that the GA is
the holder of the loan, and not Defendant. Def.’s Exs., Ex. U. The form letter sent by ECMC,
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which states that Defendant holds a claim against Plaintiff, does not show that Defendant is the
holder of the loan either. Def.’s Opp’n. Exs., Ex. AA, ¶¶ 13–15. Defendant is the holder of a
claim on the defaulted loans since it “will receive 84% of the funds collected by the GA,” but it
is not the holder of the loan. Id. Holding a claim on a loan is not the same as actually possessing
the requested documents.
Defendant has met its burden of demonstrating that the records in question are not
“agency records” in the context of FOIA, as they were not created or obtained by Defendant and
are not under its control. Thus, Defendant’s Motion for Summary Judgment is granted, and
Plaintiff’s Cross-Motion for Summary Judgment is denied.
V.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that Defendant’s Motion for Summary Judgment (Dkt. No. 54-1) is

GRANTED; and it is further
ORDERED, that Plaintiff’s Cross-Motion for Summary Judgment (Dkt. No. 55) is
DENIED; and it is further
ORDERED, that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Memorandum-Decision and
Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.

DATED:

May 11, 2017
Albany, New York

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