Brozzo v. U.S. Department of Education

Second MOTION for Summary Judgment

N.D.N.Y.December 9, 2016

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK Francis Brozzo, ) ) Civil Action No. 14-CV-01584 (LEK/TWD) Plaintiff ) v. ) ) U.S. Department of Education ) ) Defendant. ) NOTICE OF MOTION MOTION BY: United States Department of Education DATE, TIME AND PLACE: January 20, 2017, 9:30 A.M., U.S. Courthouse and Federal Building, 445 Broadway, Albany, New York 12207 SUPPORTING PAPERS: Defendant’s Renewed Motion for Summary Judgment, Memorandum of Law in Support of Renewed Motion for Summary Judgment, Statement of Material Facts Pursuant to Local Rule 7.1 (a)(3), Together with Exhibits, and Declaration of William F. Larkin RELIEF SOUGHT: Dismissal of Plaintiff’s Complaint Dated: December 9, 2016 RICHARD S. HARTUNIAN United States Attorney P.O. Box 7198, 100 S. Clinton Street Syracuse, New York 13261-7198 By: /s/ William F. Larkin William F. Larkin Assistant U.S. Attorney Bar Roll No. 102013 Case 7:14-cv-01584-LEK-TWD Document 54 Filed 12/09/16 Page 1 of 1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK Francis Brozzo, ) ) Civil Action No. 14-CV-01584 (LEK/TWD) Plaintiff ) v. ) ) U.S. Department of Education ) ) Defendant. ) RENEWED MOTION FOR SUMMARY JUDGMENT NOW COMES defendant, United States Department of Education, by counsel, Richard S. Hartunian, United States Attorney, William F. Larkin, Assistant United States Attorney of counsel, and pursuant to Federal Rule of Civil Procedure 56, submits the following. Plaintiff commenced this action pro se on December 29, 2014, pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (2006), amended by the OPEN Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524, seeking the following records from the United States Department of Education (“DOE”): (1) Copy of all loan reimbursement claims filed by lender (Key Bank) with the NYSHESC (Guarantor); (2) Documents showing the payment of all reimbursement claims paid by NYSHESC to Key Bank; (3) Documents showing NYSHESC reinsurance claim submitted to the DOE; (4) Documents showing DOE approval of NYSHESC reinsurance claim, to include all money amounts that transpired between the agencies; and (5) Documents showing NYSHESC assignment of plaintiffs defaulted loans to the DOE. The defendant recognized the plaintiff’s request to be a Privacy Act request pursuant to the Privacy Act of 1974, 5 U.S.C. §552a, as amended, and the Department’s regulation implementing Case 7:14-cv-01584-LEK-TWD Document 54-1 Filed 12/09/16 Page 1 of 3 2 the Privacy Act (34 C.F.R. Part 5b). Thus, the plaintiff’s request was logged in by the FSC as FOIA Request No. 14-00112-PA (attached as Exhibit C). After receiving the plaintiff’s July 29, 2014 request, the FSC forwarded the request to AnnMarie Pedersen, Director of the Correspondence Unit within the Communications Office of the Department’s Office for Student Aid (FSA). (Exhibit A, Pedersen Decl., ¶1 – 3). Ms. Pedersen initially identified which documents were maintained within the Department’s system of records and which records were maintained within a third party’s system of records. Id. at ¶ 3. Ms. Pedersen then forwarded the FOIA request to FSA’s Business Operations Group who compiled the plaintiff’s aggregate loan history from the National Student Loan Data System (NSLDS) records maintained by FSA, and those records were provided to the plaintiff in response to plaintiff’s requests number 4 and 5 (attached as Exhibit G). Since FSA does not maintain the records responsive to the plaintiff’s requests 1 – 3, it provided the plaintiff with updated contact information to contact the appropriate three (3) guarantors directly for any responsive records. (Exhibit A, Pedersen Decl., ¶ 4). FSA does not maintain records of the payment records of the guarantors to NYSHESC, reimbursement claims made to the guarantor (Key Bank), or reinsurance claims responsive to requests 1 through 3; the guarantor would maintain those records. Id. After analysis, it is clear that the records requested by plaintiff are not “agency records” of the DOE, as they were not created or obtained by DOE and were not controlled and/or maintained by DOE, at the time of plaintiff’s request. As a result, the DOE conducted a more than adequate search in response to plaintiff’s FOIA request any why it was unable to produce any additional responsive documents. Thus, there are no genuine issues of material fact in dispute and the defendant is entitled to judgment as a matter of law. Case 7:14-cv-01584-LEK-TWD Document 54-1 Filed 12/09/16 Page 2 of 3 3 Date: December 9, 2016 RICHARD S. HARTUNIAN United States Attorney Attorney for Defendant United States of America By: /s/ William F. Larkin WILLIAM F. LARKIN Assistant United States Attorney Bar Roll No. 102013 Case 7:14-cv-01584-LEK-TWD Document 54-1 Filed 12/09/16 Page 3 of 3 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK Francis Brozzo, ) ) Civil Action No. 14-CV-01584 (LEK/TWD) Plaintiff ) v. ) ) U.S. Department of Education ) ) Defendant. ) MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S RENEWED MOTION FOR SUMMARY JUDGMENT Pursuant to this Court’s Memorandum-Decision and Order dated September 9, 2016 (Dkt. No. 53), the U.S. Department of Education (DOE) files this renewed motion for summary judgment. I. Preliminary Statement In its prior motion for summary judgment (Dkt. No. 28), the DOE submitted that it was entitled to summary judgment on the basis that it conducted an adequate search of its records and no information was improperly withheld from plaintiff’s FOIA request. However, although this Court found that the second Pedersen declaration was submitted in good faith (Decision at p. 11), it did not directly address the issue of whether records created by the New York State Higher Education Services Corporation (NYSHESC) were subject to the supervision and control of DOE (Decision at p. 13). As a result, this Court held that DOE did not meet its burden of showing that the requested records were not agency records, thus necessitating the denial of summary judgment (Decision at p.13). Case 7:14-cv-01584-LEK-TWD Document 54-2 Filed 12/09/16 Page 1 of 12 2 II. Factual and Procedural Background A. Plaintiff’s Request Plaintiff submitted his FOIA request via a letter dated July 29, 2014 (attached as Exhibit B) which was received in the Department’s FOIA Service Center (FSC) on August 8, 2014, and was forwarded to the Department’s Office of Federal Student Aid (FSA) for any responsive documents.1 Plaintiff sought: 1. A copy of any/all claims for reimbursement of defaulted loans made by Key Bank (lender) to the New York State Higher Education Services Corporation (NYSHESC) (guarantor); 2. A copy of all documents showing NYSHESC payment of all reimbursement claims made to Key Bank (lender), to include all money amounts transpired; 3. A copy of all documents showing NYSHESC reinsurance claim (concerning the student loans) submitted to the U.S. Department of Education; 4. A copy of all documents showing the U.S. Department of Education’s approval of NYSHESC reinsurance claim, documents to include a copy of money amounts that may have transpired in the transaction; and 5. A copy of documents showing NYSHESC’s assignment and transfer of title of the plaintiff’s loans to the U.S. Department of Education, to include any documents showing any reimbursement of any costs related to the assignment and transfer of title, paid by the U.S. Department of Education to NYSHESC or paid by NYSHESC to the U.S. Department of Education. 1 Exhibits A through G, were previously submitted with DOE’s initial motion for summary judgment, and Exhibits M and N were submitted with DOE’s reply to plaintiff’s opposition. Although referenced in this renewed motion, to avoid duplication they will not be attached. Case 7:14-cv-01584-LEK-TWD Document 54-2 Filed 12/09/16 Page 2 of 12 3 B. DOE’s Response. DOE recognized plaintiff’s request to be a Privacy Act request pursuant to the Privacy Act of 1974, 5 U.S.C. § 552a, as amended, and the Department’s regulation implementing the Privacy Act (34 C.F.R. Part 5b). Thus, plaintiff’s request was logged in by the FSC as FOIA Request No. 14-00112-PA (attached as Exhibit C). FSA’s Business Operations Group compiled all the documents responsive to plaintiff’s request and forwarded them to plaintiff under cover letter dated September 9, 2014 (attached as Exhibit D). Specifically, plaintiff was provided the following: a. A copy of the National Student Loan Data System (NSLDS) aggregate loan history; b. A copy of the Transitional Guaranty Agency’s organizational contact list; and c. A copy of the contact information for Key Bank. Additionally, in its close out correspondence dated September 9, 2014, the FSC provided plaintiff with the contact information for: • Borrower Services, Customer Care Group • Key Bank of New York • Transitional Guaranty Agency Plaintiff received the September 9, 2014 letter on September 13, 2014. On September 13, 2014, plaintiff appealed DOE’s action claiming that the DOE failed to provide the specific documents that he requested in his July 29, 2014 correspondence and the legal basis for the denial of his requests (attached as Exhibit E). The FSC acknowledged receipt of plaintiff’s appeal via a letter dated September 29, 2014 (attached as Exhibit F). However, while his appeal was pending, plaintiff filed the instant complaint on December 29, 2014 with the United Case 7:14-cv-01584-LEK-TWD Document 54-2 Filed 12/09/16 Page 3 of 12 4 States District Court, Northern District of New York. Because plaintiff filed a complaint in District Court, his appeal at the administrative level was closed (Exhibit S). C. Overview. On or about April 1993, plaintiff defaulted on ten (10) of his outstanding FFEL Stafford Subsidized loans (FFEL) which totaled $18,805.00, and these ten (10) loans were assigned to NYSHESC in 1994 for collection (Exhibit M, p. 3).2 In 2008 plaintiff’s loans were transferred from NYSHESC to the Transitional Guarantee Agency (ECMC), not DOE (Exhibit M, ¶ 4). This transfer occurred when NYSHESC obtained a judgment in state court against plaintiff, and subsequently transferred the loans for continued collection. Id. Neither the loans nor the documents were transferred to the DOE’s defaulted loan system. Id. After ECMC was established, it began to serve as a traditional guarantee agency with the added expectation that it could serve as a replacement for a closing guarantee agency, if necessary. Id. at ¶ 6. In these situations, ECMC becomes the new holder of the loan and at no point during this process are the loans transferred to ECMC held by DOE. Id. When a borrower defaults on a FFEL loan, the lender assigns the loan to a Guarantee Agency (GA), The GA will then be the loan holder (Exhibit T, at ¶ 6).3 Until such time as a loan is assigned from the GA to DOE, DOE is not the loan holder (Exhibit T, at ¶ 8). Although plaintiff argues that the records in question, created by ECMC were done on the DOE’s behalf, the records were not created in anticipation of the loan being assigned to DOE, as the vast majority of FFEL borrowers repay their loans and are not subject to the circumstances which lead to an assignment by a GA to DOE (Exhibit T, at ¶ 8). 2 Exhibit M is the second declaration of Ms. Pedersen which was attached to the DOE’s reply to plaintiff’s opposition. 3 Exhibit T is the Declaration of Anne Mari Pedersen dated December 8, 2016. Case 7:14-cv-01584-LEK-TWD Document 54-2 Filed 12/09/16 Page 4 of 12 5 Neither the agreements nor the regulations grant DOE regular access to GA records until such time as the loan has been assigned to DOE (Exhibit T, at ¶ 9). GA’s create and maintain student loan records based on the obligations detailed in DOE’s regulations as a requirement for participation in the FFEL program (Exhibit T, at ¶ 10). The intention behind creating these documents is for use by the GA’s in administration of their responsibility as a guarantor of that loan and with the anticipation that those records will remain in the control of the GA as holder of the loan, until such time as the loan is fully paid (Exhibit T, at ¶ 10). The agreements between NYSHESC and DOE do not establish DOE’s intent to retain control over the records possessed by NYSHESC and use as DOE sees fit (Exhibit T, at ¶ 11). The agreements between NYSHESC and DOE identify the GA as the holder of the loan (Exhibit T, at ¶ 11 and Exhibits U and V).4 Pursuant to 34 C.F.R. § 682.414(6), DOE only has the right to request the documents with respect to loans that have been assigned to the Secretary, while the loan is still held by the GA, DOE does not have a right to access them (Exhibit T, at ¶ 12). GA records are not maintained by DOE but, rather, they are maintained and collected by the GA’s (Exhibit T, at ¶ 13). At no time have the records of plaintiff’s FFEL loans been integrated into the DOE’s records or files, as the loans are still held by the GA – ECMC (Exhibit T, at ¶ 14). 4 Exhibit U is a three (3) page agreement between the Department of Health Education and Welfare and NYSHESC dated August 5, 1977; Exhibit V is a four (4) page agreement between DOE and the Transitional Guarantee Agency (ECMC) dated March 17, 1994. Both of these documents specifically state in paragraph (2)(a) that either NYSHESC or the Transitional Guarantee Agency (ECMC) is the holder of the loans. Case 7:14-cv-01584-LEK-TWD Document 54-2 Filed 12/09/16 Page 5 of 12 6 III. Summary The records requested by plaintiff are not agency records of DOE, as they were not created or obtained by DOE and were not controlled and/or maintained by DOE, at the time of plaintiff’s FOIA request. IV. Argument A. The Records Requested By Plaintiff Are Not Agency Records Of The DOE As They Were Not Created Or Obtained By DOE At The Time Of Plaintiff’s Request. Documents are considered agency records within the meaning of FOIA if: 1) the agency created or obtained the relevant records, and 2) the agency is in control of the documents at the time of the FOIA request. FOX News Network v. Board of Governors of the Fed. Reserve Sys., 601 F. 3d 158, 160 (2d Cir. 2010) citing U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 144-145 (1989). Here, it is submitted that the first element in determining whether a document is an agency record – that the agency created or obtained the relevant record at the time of the FOIA request, cannot be met. As this Court noted in its decision, plaintiff does not suggest that DOE created the relevant records (Decision at p. 12), nor is there any allegation that DOE obtained the records sought by plaintiff prior to his request of July 29, 2014. This is not the case where the Department of Justice was in possession of the records sought at the time of the request, Tax Analysts, 492 U.S. at 148, nor is it similar to the request of Defense of Animals v. National Institutes of Health, 543 F. Supp. 2d 83 (D.D.C. 2008), where the records sought were kept at a facility owed by the government, the government owed the chimpanzees kept at this facility, and the government owed the chimpanzee’s clinical files, Defense Of Animals, at 100. The records sought by plaintiff were never in the possession of DOE, nor were they stored Case 7:14-cv-01584-LEK-TWD Document 54-2 Filed 12/09/16 Page 6 of 12 7 at any facility owned or operated by DOE. Thus, the first prong of the Tax Analysts test cannot be met. B. The Records Requested By Plaintiff Are Not Agency Records Of The DOE As They Were Not Controlled And/Or Maintained By DOE At The Time Of Plaintiff’s Request. 1. Forsham. The Supreme Court’s decision in Forsham v. Harris, 445 U.S. 169 (1980), is particularly instructive in determining whether documents are “agency records” for purposes of FOIA. In Forsham, federal grants were awarded by the National Institute of Arthritis, Metabolism, and Digestive Diseases (NIAMDD), a federal agency, to the University Group Diabetes Program (UGDP), a group of private physicians and scientists, to conduct a long term study of the effectiveness of certain diabetes treatment regimens. Forsham, at 171 – 172. Plaintiffs, a national association of physicians involved in the treatment of diabetes, were critical of the UGDP study and requested that UGDP grant them access to the raw data in order to facilitate a review of the UGDP’s findings. Id. at 172. NIAMDD not only awarded the federal grants to UGDP, but it exercised a certain amount of supervision over the funded activity. Id. However, the day-to-day administration of the grant supported activities was in the hands of UGDP and NIAMDD’s supervision of UGDP conformed to federal regulations governing supervision of grantees to allow for review of periodic reports submitted and onsite visits. Id. at 173. UGDP also retained control of its records – the patient records and raw data were at all times within their possession and neither the NIAMDD grant or related regulations shifted ownership of the data to the federal government Id. NIAMDD did however have a right of access to the data in order to ensure compliance with the grant. Id. Although the government could obtain permanent custody of the documents upon Case 7:14-cv-01584-LEK-TWD Document 54-2 Filed 12/09/16 Page 7 of 12 8 request, NIAMDD did not exercise its right either to review or obtain permanent custody of the data. Id. In seeking access to the various records, petitioners claimed that: (1) the data sought were “agency records” because they were at least records of UGDP, which had received its funds from a federal agency that was subject to some supervision by the agency in its use of those funds; (2) the data sought were “agency records” because the Department of Health Education and Welfare, a federal agency, had sufficient authority under its grant agreement to have obtained the data; and (3) the data were “agency records” because they formed the basis for the published reports of UGDP, which were relied upon by the U.S. Food and Drug Administration in proposing warning labels on oral hypoglycemics. Id. at 177. In rejecting petitioners’ request, the Supreme Court held that: With due regard for the policies and language of the FOIA, we conclude that the data generated by a privately controlled organization which has received grant funds from an agency, but which data has not at any time been obtained by the agency, are not “agency records” accessible under the FOIA. Id. at 178. Although petitioners placed great reliance on the fact that the Department of Health Education Welfare had a right of access to the data, and a right to obtain permanent custody of the UGDP records, the Supreme Court held that FOIA applies to records which have been in fact obtained, and not to records which merely could have been obtained (emphasis in original) Id. at 185 – 186. Forsham applies with even more force here, as the records sought by plaintiff have not “in fact” been obtained by DOE (see Exhibit T, at ¶ 14); at no time have the records of plaintiff’s loans Case 7:14-cv-01584-LEK-TWD Document 54-2 Filed 12/09/16 Page 8 of 12 9 been integrated into DOE’s records or files, as the loans are still held by the GA – ECMC (Exhibit T, at ¶ 14).5 2. Burka. In its analysis of whether DOE exercised the requisite control over the records maintained by NYSHESC to make them “agency records” of DOE, this Court did not reference Forsham, but, rather, relied on Burka v. U.S. Department of Health and Human Services, 87 F.3d 508 (D.C. Cir. 1996). In Burka, the National Cancer Institute (NCI), a division of the Department of Health and Human Services’ National Institute of Health, provided $45 Million Dollars ($45,000,000) in funding for a community smoking cessation study, which study involved the collection and analysis of data of smoking behaviors before and after intervention efforts. Burka, 87 F.3d at 510- 511. Rather than coordinating the collection and analysis of this data, NCI contracted this process to a private contractor – Information Management Systems (IMS). Id. at 512. According to NCI & IMS, two other firms actually conducted the phone survey and created computer tapes of the results, which were turned over to IMS. Id. at 512. A goal of the project was the publication of the research results. Id. In his third FOIA request, Burka sought all questionnaires and data tapes relating to the NCI 1990 survey of the 9th grade students undertaken as part of the study. Id. at 513. The Court of Appeals held that the receipt of federal funding by the contractor and subcontractors alone was not sufficient to find that the data was “created or obtained” by HHS. Id. at 515. However, given the extensive supervision and control exercised by the agency over the collection and analysis of the data, the Court found that the firms acted on behalf of HHS in creating the tapes 5 As to the element of control, the Supreme Court has held that, “[b]y control we mean that the materials have come into the agency’s possession in the legitimate conduct of its official duties.” Tax Analysts, 492 U.S. at 145 (emphasis added). Case 7:14-cv-01584-LEK-TWD Document 54-2 Filed 12/09/16 Page 9 of 12 10 sought by Burka. Id. In concluding that the tapes were “agency records” which were required to be turned over to Burka, the Court adopted a constructive obtainment and control theory stating, NCI ordered creation of the materials, plans to take physical possession of the tapes at the conclusion of the project, has indicated it will disclose the information after its publication schedule is completed and prohibited IMS from making any independent disclosures, and has read and relied significantly on the information in writing articles and developing agency policies. As did the district court, we find these actions sufficient to conclude that HHS had constructive control of the tapes at the time Burka filed his FOIA request. Burka, 87 F.3d at 515. 3. Analysis. Although Burka may be controlling in the District of Columbia Circuit, it is respectfully submitted that Burka does not follow the Supreme Court’s decision in Forsham, and is not controlling in the Second Circuit. In Bloomberg v. Board of Governors of Fed. Reserve Sys., 649 F.Supp. 2d 262 (S.D.N.Y. 2009) aff’d on other grounds, 601 F.3d 143 (2d. Cir. 2010), plaintiff advanced an argument that all Federal Reserve Bank of New York’s records were agency records of the Federal Reserve System on the basis of that “[i]f a government contractor performs a task on behalf of the government, the records relating to the task are agency records.” Bloomberg, 649 F. Supp. 2d at 274. However, in addressing this issue of constructive obtainment and control, the district court found that plaintiff cited no decisions from the Second Circuit applying the Burka theory, Id. at 274-275, and determined that the Supreme Court’s decision in Tax Analysts, Forsham v. Harris, 445 U.S. 169, 186 & n. 17 (1980), and Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 157 (1980) did not compel the adoption of the constructive obtainment and control theory. Id. at 275. Even if this Court adopts the “constructive obtainment and control theory”, the requisite elements constituting extensive supervision and control over the collection and analysis of the Case 7:14-cv-01584-LEK-TWD Document 54-2 Filed 12/09/16 Page 10 of 12 11 data, is not present here. In Burka the Court of Appeals for the District of Columbia, identified four factors relevant to a determination of whether an agency exercises sufficient control over a document to make it an “agency record”: (1) the intent of the document’s creator to retain or relinquish control of the records; (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 records system or files. Burka, 87 F.3d at 515, citation omitted. A set forth in Ms. Pedersen’s current affidavit (Exhibit T), upon default on an FFEL loan, the lender assigns the loan to a GA, the GA will then be the loan holder (Exhibit T, at ¶ 6), the records created by the GA – ECMC, are not done on behalf on DOE, as they were not created in anticipation of the loan being assigned to DOE as the vast majority of FFEL borrowers repay their loans and are not subject to the circumstances which lead to a GA assignment to the Secretary (Exhibit T, at ¶ 8). The student loan records are created for the use by the GA’s in administration of their responsibility as guarantor of that loan with the anticipation that the records will remain in control of the guarantor as holder of the loan until such time as the loan is paid off (Exhibit T, at ¶ 10). Furthermore, the agreements between NYSHESC and DOE do not establish DOE’s intent to retain control over records possessed by NYSHESC for use as DOE sees fit (Exhibit T, at ¶ 11). The agreements between NYSHESC and DOE identify the GA as the holder of the loan (Exhibit T, at ¶ 11). DOE only has the right to request the documents with respect to loans that have been assigned to the Secretary, it does not have a right to access them (Exhibit T, at ¶ 12). At no time have the records of plaintiff’s FFEL loans been integrated into the DOE’s records or files, as the loans are still held by the GA – ECMC (Exhibit T, at ¶ 14). Case 7:14-cv-01584-LEK-TWD Document 54-2 Filed 12/09/16 Page 11 of 12 12 Here, it is readily apparent that: (1) the records sought by plaintiff were not created through federal funding; (2) the records sought were not created in anticipation of plaintiff’s loans being assigned to DOE; (3) there was no day-to-day supervision by DOE over the activities of NYSHESC and/or ECMC; (4) the records sought were created by the GA’s in administration of the responsibility as a guarantor of that loan and, with the anticipation that those records would remain in control of the GA as holder of the loan; (5) the agreements between NYSHESC and DOE do not establish DOE’s intent to retain control over the records possessed by NYSHESC and used as DOE sees fit; (6) although DOE has the right to request documents with respect to loans that have been assigned to the Secretary, while the loan is held by the GA, DOE does not have a right of access to them; and (7) at no time have the records of plaintiff’s FFEL loans been integrated into the DOE’s records or files. Accordingly, applying the Supreme Court’s holding in Forsham, and even under the holding in Burka, there is simply no factual or legal basis to consider the records sought by plaintiff to be “agency records” of DOE subject to FOIA. V. Conclusion. For the foregoing reasons, and based upon the entire record herein, defendant respectfully requests that its renewed motion for summary judgment be granted. Dated: December 9, 2016 RICHARD S. HARTUNIAN United States Attorney Northern District of New York 100 South Clinton Street Syracuse, New York 13261-7198 By: /s/ William F. Larkin William F. Larkin Assistant U. S. Attorney Bar Roll No. 102013 Case 7:14-cv-01584-LEK-TWD Document 54-2 Filed 12/09/16 Page 12 of 12 Exhibit S Case 7:14-cv-01584-LEK-TWD Document 54-3 Filed 12/09/16 Page 1 of 17 Larkin, William (USANVN) From: Sent: Caliguiran, Arthur Tuesday, June 14, 2016 10:15 AM To: wayne brozzo Subject: RE: FOIA Appeal 14-00058-A Dear Mr. Brozzo, A review of our records indicates that your case is in litigation with the Department, 7:14-cv-01584-LEK-TWD Brozzo v. U.S. Department of Education, for FOIA Appeal No. 14-00058-A. Therefore, the Department has closed your appeal and the documents you requested will be provided to you through the litigation process. If you have any questions, please contact the FOIA Service Center (FSC) at 202-401-8365 or EDFOIAManager@ed.gov. Art C. Caliguiran, CIPPIG FOIA Appeals Coordinator FOIA Analyst FOIA Service Center, OM/OCPO U.S. Department of Education 400 Maryland Ave. SW, Room 2E319 Washington, DC 20202-4510 FOIA Hotline (202) 401-8365 From: wayne brozzo [mailto:fbrozzo@hotmail.com] Sent: Monday, June 13, 2016 10:27 PM To: caliguiran, Arthur Subject: Re: FOIA Appeal 14-00058-A Dear Mr. Caliguiran, is there a direct telephone number where I can reach you to discuss that FOIA Appeal ? If not could you telephone me at 315-466-2370 after 11AM EST. Thank you for any concern you give my request. Francis Brozzo Sent from Outlook From: Caliguiran, Arthur Sent: Monday, June 13, 2016 6:22 AM To: fbrozzo@hotmail.com Subject: FOIA Appeal 14-00058-A On the behalf of the Department, please accept my apology for the delay in the processing of your appeal which you submitted to the Department on September 13, 2014. I'm contacting you today to conclude if you are still interested in pursuing your appeal with the Department. If the interest is still there than I will contact the responsible program office to determine what's the status of pending appeal. If not, than I will withdraw your appeal and document it as such. Please provide me with your response by COB. June 24. 2016. A lack of response on your part will be interpreted that there is no longer an interest in this case, therefore resulting in an administrative closure. 1 Case 7:14-cv-01584-LEK-TWD Document 54-3 Filed 12/09/16 Page 2 of 17 --i Thank you. Art C. Caliguiran, CIPP/G FOIA Appeals Coordinator FOIA Analyst FOIA Service Center, OM/OCPO U.S. Department of Education 400 Maryland Ave. SW, Room 2E319 Washington, DC 20202-4510 FOIA Hotline (202) 401-8365 2 Case 7:14-cv-01584-LEK-TWD Document 54-3 Filed 12/09/16 Page 3 of 17 Exhibit T Case 7:14-cv-01584-LEK-TWD Document 54-3 Filed 12/09/16 Page 4 of 17 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ---------------------------------------------------------------x FRANCIS BROZZO., Plaintiff, v. UNITED STATES DEPARTMENT OF EDUCATION, Defendant. X 7:14-CV-1584 (LEK/TWD) DECLARATION OF ANN MARIE PEDERSEN I, Ann Marie Pedersen, declare as follows, pursuant to 28 U.S.C. § 1746: 1. This is a supplemental declaration to the two previous declarations dated October 13, 2015 and February 18, 2016 and is focused solely on addressing the points made by the com1 in its September 9, 2016 denial of the Department of Education's ("Department") most recent motion for summary judgement in this case, specifically to explain why records held by Guaranty Agencies ("GA") are not Department records for the purposes of the Freedom of Information Act ("FOIA"). I. FFEL and Guaranty Agency Background 2. The Federal Family Education Loan programs ("FFEL") require "lenders use their own funds to make loans to enable a student or his or her parents to pay the costs of the student's attendance at post-secondary schools", 34 C.F.R §682.100 (a). 3. As defined in Department regulations, a guaranty agency is "a state or private nonprofit organization that has an agreement with the Secretary under which it will administer a Joan guaranty program under the Act", 34 C.F.R §682.200 (b). Case 7:14-cv-01584-LEK-TWD Document 54-3 Filed 12/09/16 Page 5 of 17 4. A holder is defined as "an eligible lender owning an FFEL program loan including a Federal or state agency or an organization or corporation acting on behalf of such an agency and acting as a conservator, liquidator or receiver of an eligible lender" Id. 5. Student loans originated through the FFEL program are held by the lender, and guaranteed by an agency under agreement with the Secretary of Education ("Secretary") to administer a loan guarantee program. This program insures lenders from losses due to default of the bon-ower on a FFEL Joan, 34 C.F.R §682.100 (b)(l) 6. When a borrov,1er defaults on a FFEL loan, the lender assigns the Joan to a GA. The GA will . then be the loan holder. The GA agency is reimbursed by the Secretary for all or part of the amount of default claims it pays to the lenders. The terms of the Federal reinsurance agreements entered into as part of the basic program agreement for GA's is spelled out in 34 C.F.R §682.404. It provides detail of the reimbursement amounts provided to the GA's based on the losses suffered due to default claims of borrowers previously assigned to the GA from lenders. 7. A GA shall assign a defaulted loan to the Secretary, but only in the narrow circumstances outlined in 34 C.F.R §682.409. 8. Until such time as the loan is assigned from the GA to the Secretary, the Department is not the loan holder. The plaintiff argues that the records in question, created by Education Credit Management Corporation ("ECMC") were done on the Department's behalf The records were not created in anticipation of the loan being assigned to the Department as the vast majority of FFEL borrowers repay their Joans and are not subject to the circumstances which lead to a GA assignment to the Secretary. 2 Case 7:14-cv-01584-LEK-TWD Document 54-3 Filed 12/09/16 Page 6 of 17 9. Neither the agreements nor the regulations grant the Department regular access to GA records until such time as the loan has been assigned to the Secretary. Guaranty Agency Records are Not Department of Education Records 10. GA's create and maintain student loan records based on the obligations detailed in the Department regulations as a requirement for the participation in the FFEL program. However, the intention behind creating those documents is for the use of the GA' s in administration of their responsibility as a guarantor of that loan and with the anticipation that those records will remain in the control of the guarantor as holder of the Joan until such time as the loan is paid off. 11. Plaintiff argues that agreements with New York State Higher Education Services Corporation, ("NYSHESC") establish the Department's intent to retain control over the records possessed by NYSHEC and use as the Department sees fit. That is not a correct characterization of the relationship between the GA's and the Department. The agreement between the NYSHESC and the Department identifies the guaranty agency as the holder of the loan. The Department's agreements with both NYSHESC and ECMC have been included for reference in Exhibits U and V. 12. Further, the very regulation that the plaintiff cites disproves his point. 34 CFR 682.4 l 4(6)(i) states that "[uJpon the Secretary's request with respect to a particular loan or loans assigned to the Secretary ... the guarantee agency ... must cooperate with the Secretary." 34 C.F.R 682.414(6)(iii) similarly provides that 't]he Secretary may request a record, affidavit, certification or evidence under paragraph (a)(6) of this section ... to resolve any factual dispute involving a loan that has been assigned to the Secretary." The regulation clearly states that the Department only has the right to request the documents with respect to loans 3 Case 7:14-cv-01584-LEK-TWD Document 54-3 Filed 12/09/16 Page 7 of 17 that have been assigned to Secretary. While the loan is still held by the GA, the Department does not have a right to access. 13. In addition, the Privacy Act, 5 U.S.C. Section 552(a)(4) defines "record" as "any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his education, financial transactions, medical history, and criminal or employment history and that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph." GA records are not maintained by the Department but rather, they are collected and maintained by the GA's. As a result, GA records do not fall within the purview of the Privacy Act and the Department does not have an obligation to produce them. 14. As stated in my second declaration, dated February 18, 2016111, the Department obtained records from ECMC as a courtesy to the Plaintiff upon his appeal. At no time prior to the Plaintiff's request were his loan records in the ownership or control of the Department. At no time, have the records of the Plaintiff's FFEL loans been integrated into the Department's records or files as the loans are still held by the GA, ECMC. I declare under penalty of perjury that the foregoing is true and correct. Executed at Washington, DC, this ) The Co:r:in,issiom'r's ob.ligation to mcike interest p,,yrnents slwll cxte11d to any consolid,\tiun or renegotiation of an insured foan that is eliqil>h'! for interC$t h011ef'i1.~ .:ind which is apprc111P.ct by the fl'Jcmcy, so long as the terms and co11dH'ions th~rcof arn such th«t it 'is othcnrisc insurable. Case 7:14-cv-01584-LEK-TWD Document 54-3 Filed 12/09/16 Page 10 of 17 .. (c) The o!,liq,d:ir!il or !:hr. c,,n,id:;~iUtht•ri7.ed by tlw J\ct .ind Lhr: Heq11l.:it·ion,; but :,b,11 not t;,:tcwl b~y()wl cn in f,tv•"J r of t hi? ,'\qc nty. (d) TlH! /iq(=l~cy shii1l s11rmit, 01v! sh;:11 rc:qufrr: illlY hold~~r of,, lo:in in:,urcd b·1 tile J•,,;r~ncv lo :,ubnit, to th,! Cc1:::ni:-·,ior1r•1', ilt. sucil limes and 'in such mannl~l' i.lS lv:, r;;:iy tcq•1"i!e, st(1Lc:!'k'11ts cnr:i'.ainilly s11ch 'irrfOlY1.:1tion··,,s uw: be rcq11i r('~d by er v~n-'.;11.:·ni: to tf~f! fr::.t or Hr:·m11Jtions for il::.- µui·po:~f: of crwb'! in:1 t!ic Crni'iHi s5 icn-:::r· 'in drtP.rn.inc the r>mcitmt of any p~ymr:nt he 11111:;t milke vlith rcs~)ect to fosm·,::d loans. (3} Except in the~ c;1sc> of endor·:;cmcnt of;: lo,:n in -fc1vor of the f,:Jcncy, the /\gency sh,,1'! ncnnU. lu,:11;; to b0 tru11sfc1·rcd or nssi~me.d, including an as~.i9rni;0r1t for scc:Lit'·ity, 0nlv to 0n c··liiiible lcnu'..J' or thf! Stud<>nt Lonn '·1,1d:etir:q A'>socia1:ion. Thr:: :\qenc.v '.:,11)11 n1f•t1ire that i'lll ~~:.si:cept th~d th':! Crnnr!iss'iriner iW,V ~;uspcml this f,0,rc:1:mcnt r,;1:ding the outconic of tl!e hr;Jl'itHl if he dctcn:rincs thi'lt '.;11ch 0ct'io11 ·is necc~'.,i,ry fr1 on;c:r to rirr:vent sub!;tantiP't hi'lrrl tn li12 inlrrc•si·s o-f the Fedci't11 Ct..'V(•r-nt:~nt. T!P A'.rcncv sl11•n t,c bri,11:d lly ;ill r:hi!n~ic!s in the i\t:t or Requl,itions ill ;1ccordcincc \'tith lhcir resp,..:dive dfccti'le date:;. If the C!J'Triss·iuiw1· t iw;s thilt ,-,nv of t!ic n'-'.·'.lffflnces or repr(':,r:11tatinns !!l(1dc by the~ f•.rit:ncy in tC'IHl':cl:ion witlt this ,,~n·u~:-·nt ,we 1l°!Cl:H(;kte or· ·i;,cori-,:•. :_ 'ir, ,:riv r.:i.11:'ri;:1 r('spi!ct c,r l:h,1t thu·c' !vi:- b00r1 ;1 f,lilurc Ly t~1c i\qc11:;y to co1;;ply 1-ritl1 any or t:,•..: J}rnvi~ions (i;· thi<: f1rncc:iw:n1 or aw"licdile fc(i,,1·c.1l ·1il1·1 or P•'llt'1i1tiow;, hr- :;;,;y ta'..ri ~.tJdt i1Ctir1n :.llnr-t of l(:1n:in,:-:ti()n il~, n·:,,y hr-! r:Ar,.:c~_;rlry to rwctcct th-- i!!{:cr1~"1:-; of Uir: U;1·i1:-I ~;Lnt,::.. Such ,:ction i:;J'/ illclu,;'.: \·rith·· hr>'ld'ing t>P/•·r~:-it ~ h.1 be 1'.: ,,:: to the /\;;,·n-:y (en· t0 1cn:}:1·s \·:i,o\c 1cians ,u·c i;1su1 cd Case 7:14-cv-01584-LEK-TWD Document 54-3 Filed 12/09/16 Page 11 of 17 . ' ' h bv t!:1.> J'l(,r,ncv) until ;,~;·:,r,::;;t,-; r!·J•..: 111.:,, if itir.n 1:h(~n:;or is 11):·ovidr:d or rc"1 1r1r1no ~ - • • ' -J that t!1t) ;~(:,·ncy 1·rin!)t!r' r. t·,·: C(Jtr::is·; iu!Jr.•r few a11y r,,:;y1nc::1ts 1::(10c, or ,11,y p0y- ment.:; 1·1riicii the Cr•:1r:iis:.ic:,,·, .. !i:1'.; bccr,::c ol.1 !icpt.1;d Lo rr:.:ike, <'I:. ii rr!stdl: or l.i1e /\qeHcv's ma!:ino sue!. i1~,:c;,:n1~:u-' oi· i11'(it1·ect stc,1.t'::,i''nL::: u1· vio1;,titHJ such prr, 1.tisions tlf this A(;l'CC\11"'.l\. ()j' apr/lic,:hle Federal 1uw or R0.~1t1latior1s. (r,) Tl1c 11'.r?ncy shall include such prov-isbns in its i1qret:m::nts 1'litil lcndcn'S ;:nd t,,kc such otlwr s Leps as 1·i;1y be ncccssc:ry to carry out i t;i ohl ig,:::- t.ions hen!undc1·. ( 9) T h0 1,~,.~nc v ,,fn·c~r'~ to s t1bmi t to thr-: Coi:::nk;s i oner n 11 recorrls \·/hi cl1 a r0 ret:<:onahly ttr.:ce~s,ir-y fur· tllr: Con,:'1ir-!;ioncr to w.:ct his 00·1 i9.:-it;ions under Section 437 uf the /:ct (re~Jin·d'itq the rep;,1yr:1E'nt of loans of bankrnpt, deceased or disabl"'c: bOIT0\·!1.!1'$), (10) No r:e1•1bc1· of c,r c!r!1cr1c1te to Con9:·~ss, 01· resident Com;niss'ion('l", sh:ill br ad11i tt0d to any sh,1i·r~ or prrt of this /HJ1'C;~;.:r::nt, or to any bP.r:sfH tlwt. m,y ,,rise thr::rofro:;1; bul: this pnJvision Shilll not be conLrucd to e>:tend to this /\9rce1::-:inL, if nade 1riti1 a corpor·ation tor ii:s 9c11eriJ·1 benefit. rn !-/lHiF.SS 1·/llEREOri t!ris AgreP.mr:!nt has been executed by the duly a11:hor-ized rcpn'.',cntJtivc or the J\r,1::ncy and "in the nc:rnr. of ind on b~:ha.'lf of the Co:;,,nis- s'in1'l·T, by the undcrsiq:ied official. RUTH S. CROSS N•t.ar:, Pnhtic. f.~t~tl" ,d Nt>-'\? YoTlc Qu-ulihc'-! in ~\Hi.~!'!.V t>,,:r..t ~ M:1 CtJmru\.c.ll'!.-,n t::-:wr,.- "* .- · · fl,.d:·:: ... 1111...1 .. 4. -1977---·--··. -· -. New York State Higher Education Services. Cor2.oration _ ---··--·-- !!i;nrc of /'.!;ency ~ ~~'0-~ By Eileen O. Dickinson ----·--·······--------· --- Title President Atte:;t (?.:-z-._6 t/l~ . .,. ___ .:,:"'£::....______ . ·--- --··-·- Tille~~ Cl_j .. ~--- UfHTEO :iT/\TES CO!tHSSIOtlrn OF l]JUCF,no;i Case 7:14-cv-01584-LEK-TWD Document 54-3 Filed 12/09/16 Page 12 of 17 Exhibit V Case 7:14-cv-01584-LEK-TWD Document 54-3 Filed 12/09/16 Page 13 of 17 UNITED STATES DEPARTMENT OF EDUCATION 01'1"1Clt OF POST5ECONDARY EDUCATION Agreement Pur•uant to Section 428(b) of the Higher Bducation Act of 1965, as amended, with a State or Private Non-Profit rnstitution or Organization for Coverage of it• Student Loan rnsuranca Program under the :Interest Benefits Provisions of section 428(a) of the Act WHEREAS, Transitional Guaranty Agency, Inc., (hereinafter referred to as the •TGA") hereby assures the U.S. secretary of Education (hereinafter referred to as the "Secretary") that its student loan insurance program: (1) Complies and will continue to comply with the provisions of §428(b) (1) of the Higher Education Act of 1965, as amended and as it may be amended (hereinafter called the "Act"); (2) Complies and will continue to comply with all the other provisions of the Act, as they have been and may be amended, and the requirements imposed by Federal regulations, including but not limited to 34 C.F.R. Part 682, as they have been and may be amended, (hereinafter referred to as the ·Regulations"}; WHEREAS, the Secretary, on the basis of such assurances finds that the requirements of §428(b) (1) of the Act are met: NOW, THEREFORE, it is mutually agreed as follows: (1) This agreement shall be construed in the light of, and all terms used herein shall have the same meaning as in, the Act and the Regulations thereunder. TGA shall be bound by all changes in the Act or Regulations in accordance with their effective dates. (2) (a) The Secretary shall pay to the holder of loans insured by TGA (hereinafter referred to as the "holder") the portion of the interest charges on such loans, as determined in accordance with §428(a)(3) of the Act, which students are entitled to have paid on their behalf pursuant to §§428(a) (1) and (2}. In the absence of fraud on the part of the originating lender or holder, the holder of a loan insured by TGA shall have a contractual right, as against the United States, to receive such interest provided the holder has first determined, on the Case 7:14-cv-01584-LEK-TWD Document 54-3 Filed 12/09/16 Page 14 of 17 2 basis of information submitted on forms supplied or approved by the Secretary that the borrower is ~ligible for interest benefits under the Act and Regulations. The holder's right to interest benefits is subject to compliance with all requirements of the Act and Regulations. (b) The Secretary's obligation to make interest payments shall extend to any renegotiation of an insured loan that is eligible for interest benefits and which is approved by TGA, so long as the terms and conditions thereof are such that it is otherwise insurable. (c} The obligation of the Secretary to pay interest on behalf of the student shall extend through the period authorized by the Act and the Regulations but shall not extend beyond endorsement of the underlying loan note in favor of TGA. (d} TGA shall submit, and shall require any holder of a loan insured by TGA to'submit, to the Secretary, at such times and in such manner as he .may require, statements containing such information as may be required by or pursuant to the Act or Regulations for the purpose of enabling the Secretary to determine the amount of any payment he must make with respect to insured loans. {3) Except in the case of endorsement of a loan in favor of the TGA, TGA shall permit loans to be transferred or assigned, including an assignment for security, only to an eligible lender. TGA shall require that all assignments be made in accordance with the requirements of the Act and Regulations. (4) TGA shall notify {or shall require holders of loans insured by TGA to notify) the Secretary of any assignment, transfer or sale of a loan note insured by TGA. {5} TGA shall make such reports in such forms and containing such information as the Secretary may reasonably require to carry out his functions under the Act, and shall keep such records and afford such access thereto at any reasonable time to the Secretary or his designee as may be necessary to assure the correctness and verification of such reports. (6) All terms or conditions or insurance required or permitted by the TGA shall be consistent with and promote the purposes of the Act. (7) This Agreement may be terminated by either party upon not less than 60 days written notice to the other party. Case 7:14-cv-01584-LEK-TWD Document 54-3 Filed 12/09/16 Page 15 of 17 3 Termination shall not affect obligations incurred under this Agreement by either party before the effective date of termination. If termination is effected by the Secretary. it will not become final until TGA has been afforded reasonable notice and an opportunity for a hearing in accordance with the Secretary's regulations. The Secretary may withhold payments from TGA or suspend the Agreement prior to giving notice and opportunity to be heard if the Secretary finds that such action is necessary to prevent substantial harm to Federal interests. (8) If the Secretary finds that any of the assurances or representations made by TGA in connection with this Agreement are incomplete or incorrect in any material respect or that TGA has failed to comply with any of the provisions of this Agreement or applicable Federal law or regulations, he may take any action as may be necessary to protect the interests of the United States. Such action may include withholding payments to be made to TGA (or to lenders whose loans are insured by TGA) until adequa~e documentation is provided or requiring that TGA reimburse the Secretary for any payments made or any payments which the Secretary has become obligated to make (including administrative costs incurred by the Secretary) as a result of TGA 1 s making such incomplete or incorrect statements or violating such provisions of this Agreement or applicable Federal law or regulations. (9) TGA shall include such provisions in its agreements with lenders and take such other steps as may be necessary to carry out its obligations hereunder. {10) TGA agrees to submit to the Secretary all records which are reasonably necessary for the Secretary to meet his obligations under §437 of the Act (regarding the payment of claims on loans of bankrupt, deceased or disabled borrowers). (11) No member of or delegate to Congress, or resident Commissioner, shall be admitted to any share or part of this Agreement, or to any benefit that may arise therefrom; but this provision shall not be construed to extend to this Agreement, if made with a corporation for its general benefit. Case 7:14-cv-01584-LEK-TWD Document 54-3 Filed 12/09/16 Page 16 of 17 .. 4 (12) TGA shall only guarantee loans with the express written approval of the Secretary. The Secretary will not pay interest benefits on loans guaranteed by TGA contrary to this limitation. IN WITNESS WHEREOF, this Agreement has been executed by the duly authorized official of the Agency and in the name of and on behalf of the Secretary, by the undersigned official. March 17,1994 ~ March 17,1994 ~ By Title Transitional Guaranty Agency, Inc. N~ Robert A. Stein Chairman of the Board AttescJ,«L.4.. u_JJ~ Title B:ard~ Department of eo L. Kornfeld Deputy Assistant Secretary Student Financial Assistance Case 7:14-cv-01584-LEK-TWD Document 54-3 Filed 12/09/16 Page 17 of 17 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK Francis Brozzo, ) ) Civil Action No. 14-CV-01584 (LEK/TWD) Plaintiff ) v. ) ) U.S. Department of Education, ) ) Defendant. ) STATEMENT UNDER LOCAL RULE 7.1(a)(3) NORTHERN DISTRICT OF NEW YORK 1. Plaintiff commenced this action pro se on December 29, 2014, pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (2006), amended by the OPEN Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524, seeking the following records from the United States Department of Education. 2. By letter dated July 29, 2014, (attached as Exhibit B) which was received in the Department’s FOIA Service Center (FSC) on August 8, 2014, and was forwarded to the Department’s Office of Federal Student Aid (FSA) for any responsive documents. The plaintiff sought: 1. A copy of any/all claims for reimbursement of defaulted loans made by Key Bank (lender) to the New York State Higher Education Services Corporation (NYSHESC) (guarantor); 2. A copy of all documents showing NYSHESC payment of all reimbursement claims made to Key Bank (lender), to include all money amounts transpired; 3. A copy of all documents showing NYSHESC reinsurance claim (concerning the student loans) submitted to the U.S. Department of Education; Case 7:14-cv-01584-LEK-TWD Document 54-4 Filed 12/09/16 Page 1 of 5 2 4. A copy of all documents showing the U.S. Department of Education’s approval of NYSHESC reinsurance claim, documents to include a copy of money amounts that may have transpired in the transaction; and 5. A copy of documents showing NYSHESC’s assignment and transfer of title of the plaintiff’s loans to the U.S. Department of Education, to include any documents showing any reimbursement of any costs related to the assignment and transfer of title, paid by the U.S. Department of Education to NYSHESC or paid by NYSHESC to the U.S. Department of Education. 3. The defendant recognized the plaintiff’s request to be a Privacy Act request pursuant to the Privacy Act of 1974, 5 U.S.C. §552a, as amended, and the Department’s regulation implementing the Privacy Act (34 C.F.R. Part 5b). Thus, the plaintiff’s request was logged in by the FSC as FOIA Request No. 14-00112-PA (attached as Exhibit C). 4. FSA’s Business Operations Group compiled all the documents responsive to the plaintiff’s request and forwarded them to plaintiff under cover letter dated September 9, 2014 (attached as Exhibit D). 5. Specifically, the plaintiff was provided the following: a. A copy of the National Student Loan Data System (NSLDS) aggregate loan history; b. A copy of the Transitional Guaranty Agency’s organizational contact list; and c. A copy of the contact information for Key Bank. Additionally, in its close out correspondence dated September 9, 2014, the FSC provided the plaintiff with the contact information for: Case 7:14-cv-01584-LEK-TWD Document 54-4 Filed 12/09/16 Page 2 of 5 3 • Borrower Services, Customer Care Group • Key Bank of New York • Transitional Guaranty Agency 6. The plaintiff received the September 9, 2014 letter on September 13, 2014. 7. On September 13, 2014, the plaintiff appealed the defendant’s action claiming that the defendant failed to provide the specific documents that he requested in his July 29th correspondence and the legal basis for the denial of his requests (attached as Exhibit E). 8. The FSC acknowledged receipt of the plaintiff’s appeal via a letter dated September 29, 2014 (attached as Exhibit F). However, while his appeal was pending, the plaintiff filed the instant complaint on December 29, 2014 with the United States District Court, Northern District of New York. 9. After receiving the plaintiff’s July 29, 2014 request, the FSC forwarded the request to AnnMarie Pedersen, Director of the Correspondence Unit within the Communications Office of the Department’s Office for Student Aid (FSA). (Exhibit A, Pedersen Decl., ¶1 – 3). 10. Ms. Pedersen initially identified which documents were maintained within the Department’s system of records and which records were maintained within a third party’s system of records. Id. at ¶ 3. 11. Ms. Pedersen then forwarded the FOIA request to FSA’s Business Operations Group who compiled the plaintiff’s aggregate loan history from the National Student Loan Data System (NSLDS) records maintained by FSA, and those records were provided to the plaintiff in response to plaintiff’s requests number 4 and 5 (attached as Exhibit G). Case 7:14-cv-01584-LEK-TWD Document 54-4 Filed 12/09/16 Page 3 of 5 4 12. Since FSA does not maintain the records responsive to the plaintiff’s requests 1 – 3, it provided the plaintiff with updated contact information to contact the appropriate three (3) guarantors directly for any responsive records. (Exhibit A, Pedersen Decl., ¶ 4). 13. FSA does not maintain records of the payment records of the guarantors to NYSHESC, reimbursement claims made to the guarantor (Key Bank), or reinsurance claims responsive to requests 1 through 3; the guarantor would maintain those records. Id. 14. Because the plaintiff filed a complaint in District Court, his appeal at the administrative level was closed (Exhibit S). 15. When a borrower defaults on a FFEL loan, the lender assigns the loan to a Guarantee Agency (GA), The GA will then be the loan holder (Exhibit T, at ¶ 6). 16. Until such time as a loan is assigned from the GA to DOE, DOE is not the loan holder (Exhibit T, at ¶ 8). 17. Although plaintiff argues that the records in question, created by ECMC were done on the DOE’s behalf, the records were not created in anticipation of the loan being assigned to DOE, as the vast majority of FFEL borrowers repay their loans and are not subject to the circumstances which lead to an assignment by a GA to DOE (Exhibit T, at ¶ 8). 18. Neither the agreements nor the regulations grant DOE regular access to GA records until such time as the loan has been assigned to DOE (Exhibit T, at ¶ 9). 19. GA’s create and maintain student loan records based on the obligations detailed in DOE’s regulations as a requirement for participation in the FFEL program (Exhibit T, at ¶ 10). 20. The intention behind creating these documents is for use by the GA’s in administration of their responsibility as a guarantor of that loan and with the anticipation that those records will Case 7:14-cv-01584-LEK-TWD Document 54-4 Filed 12/09/16 Page 4 of 5 5 remain in the control of the GA as holder of the loan, until such time as the loan is fully paid (Exhibit T, at ¶ 10). 21. The agreements between NYSHESC and the DOE do not establish DOE’s intent to retain control over the records possessed by NYSHESC and use as DOE sees fit (Exhibit T, at ¶ 11). 22. The agreements between NYSHESC and DOE identify the GA as the holder of the loan (Exhibit T, at ¶ 11 and Exhibits U and V). 23. Pursuant to 34 C.F.R. § 682.414(6), DOE only has the right to request the documents with respect to loans that have been assigned to the Secretary, while the loan is still held by the GA, DOE does not have a right to access them (Exhibit T, at ¶ 12). 24. GA records are not maintained by DOE but, rather, they are maintained and collected by the GA’s (Exhibit T, at ¶ 13). 25. At no time have the records of plaintiff’s FFEL loans been integrated into the DOE’s records or files, as the loans are still held by the GA – ECMC (Exhibit T, at ¶ 14). Date: December 9, 2016 RICHARD S. HARTUNIAN United States Attorney Attorney for Defendant United States of America By: /s/ William F. Larkin WILLIAM F. LARKIN Assistant United States Attorney Bar Roll No. 102013 Case 7:14-cv-01584-LEK-TWD Document 54-4 Filed 12/09/16 Page 5 of 5 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK Francis Brozzo, ) ) Civil Action No. 14-CV-01584 (LEK/TWD) Plaintiff ) v. ) ) U.S. Department of Education ) ) Defendant. ) DECLARATION OF WILLIAM F. LARKIN IN SUPPORT OF THE RENEWED MOTION FOR SUMMARY JUDGMENT Pursuant to Title 28, United States Code, Section 1746 and under penalties of perjury, William F. Larkin declares as follows: 1. I am an Assistant United States Attorney, of counsel to Richard S. Hartunian, United States Attorney for the Northern District of New York. I am familiar with the facts in this case. 2. This declaration is filed to comply with Rule 7.1 of the Local Rules of the United States District Court for the Northern District of New York. Filed simultaneously in support of this Renewed Motion for Summary Judgment is a Memorandum of Law. 3. For the reasons stated in the Memorandum of Law, I believe the position asserted by the defendant has merit. 4. I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief. Dated: December 9, 2016 RICHARD S. HARTUNIAN United States Attorney P.O. Box 7198, 100 S. Clinton Street Syracuse, New York 13261-7198 By: /s/ William F. Larkin William F. Larkin Assistant U.S. Attorney Case 7:14-cv-01584-LEK-TWD Document 54-5 Filed 12/09/16 Page 1 of 1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK NOTIFICATION OF THE CONSEQUENCES OF FAILING TO RESPOND TO A SUMMARY JUDGMENT MOTION The defendants have moved for summary judgment under Federal Rule of Civil Procedure 56. A motion for summary judgment asks the Court to make a final judgment dismissing some or all of your claims. If you do not file a proper response to this motion, the Court may grant the motion and dismiss some or all of your claims. Under Local Rule 7.1(a), to file a proper response to this motion, you must submit the following papers: (1) A response to the defendants’ statement of material facts that admits and/or denies each of the defendants’ assertions in matching numbered paragraphs, and that supports each denial with citations to record evidence;1 2 (2) Copies of all record evidence that you cite in your response to the defendants’ statement of material facts; AND3 (3) A response memorandum of law (no more than 25 pages long and formatted in compliance with Local Rule 10.1) that responds to each of the legal arguments contained in the defendants’ memorandum of law, and that contains any additional legal arguments you may have in response to the defendants’ motion for summary judgment. WARNING: If you do not submit a proper response to the defendants’ statement of material facts, the Court may deem you to have admitted the defendants’ factual statements. If you do not submit copies of record evidence in support of your denials, the Court may deem defendants’ factual statements to be true. If you do not submit a proper response memorandum of law, the Court may deem you to have conceded the defendants’ arguments. If you do not respond to this motion properly (or at all), summary judgment may be entered against you, meaning that SOME OR ALL OF YOUR CLAIMS MAY BE DISMISSED. In other words, your paragraph “1” should admit or deny defendants’ paragraph “1,” your1 paragraph “2” should admit or deny defendants’ paragraph “2,” and so on. Any additional material facts you wish to raise must be set forth separately from your admissions or denials of the defendants’ statements of material facts. In certain circumstances, instead of admitting or denying a statement of material fact, you2 may dispute it by “showing that the materials cited [by the defendants] do not establish the absence . . . of a genuine dispute [of fact].” Federal Rule of Civil Procedure 56(c)(1)(B) (emphasis added). Record evidence includes material in the record such as “depositions, documents,3 electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Federal Rule of Civil Procedure 56(c)(1)(A). If you submit an affidavit in support of your response, it “must be made on personal knowledge, set forth facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Federal Rule of Civil Procedure 56(c)(4). Updated 7/11/2011 Case 7:14-cv-01584-LEK-TWD Document 54-6 Filed 12/09/16 Page 1 of 1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK Francis Brozzo ) ) Civil Action No. 7:14-CV-01584 (LEK/TWD) Plaintiff ) v. ) ) U.S. Department of Education ) ) Defendant. ) CERTIFICATE OF SERVICE I hereby certify that on December 9, 2016, I have mailed by the United States Postal Service the foregoing Defendant’s Renewed Motion for Summary Judgment, Memorandum of Law in Support of Renewed Motion for Summary Judgment, Statement of Material Facts Pursuant to Local Rule 7.1 (a)(3), Together with Exhibits, Pro Se Notification of Consequences of Failing to Respond to a Summary Judgment, and Declaration of William F. Larkin the following non-CM/ECF participants: Francis Brozzo P.O. Box 461 Gouverneur, NY 13642 /s/Nicole Falkowski Nicole Falkowski Legal Assistant Case 7:14-cv-01584-LEK-TWD Document 54-7 Filed 12/09/16 Page 1 of 1