ACLU v. Dep't of Educ., No. 16-10613, 2018 WL 1586025 (D. Mass. Mar. 30, 2018) (Burroughs, J.)

ACLU v. Dep't of Educ., No. 16-10613, 2018 WL 1586025 (D. Mass. Mar. 30, 2018) (Burroughs, J.)

Re: Request for certain records concerning servicing 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 cross-motion for summary judgment

• Exemption 7, Threshold:  The court finds that "Defendant's debt collection activities fall outside the scope of 'law enforcement purposes' protected by Exemption 7, and Plaintiffs are entitled to summary judgment on this issue."  The court relates that "Defendant withheld certain material concerning its strategies for debt collection[.]"  The court finds that "'[t]he term "law enforcement" in Exemption 7 refers to the act of enforcing the law, both civil and criminal.'"  "When a borrower defaults on a student loan, he or she has not violated the law, and is not subject to criminal or civil sanctions."
   
• Exemption 5, Deliberative Process Privilege:  The court holds that the withholding of a draft plan was proper because "the version of the [plan] at issue here reflects the subjective opinion of a lower-level staffer as to which items would be most helpful to higher-level officials in formulating the final version of the [plan]."  Regarding several withheld emails, the court finds that, "[b]ased on [defendant's] declaration, the Court can conclude that the emails correlate to a specific agency decision, . . . and can infer the third factor, that the emails precede the decision in temporal sequence."  "Defendant has fallen short in demonstrating the second factor, however, because it has not proven that the emails were written for the purpose of assisting the agency official responsible for making the final decision."  "It is possible that the documents were properly withheld and that Defendant could prove its entitlement to invoke the exemption, so the motions for summary judgment as to these documents are denied without prejudice and with leave to renew."  "Plaintiffs are also correct that Defendant has not proven that the emails are deliberative."  The court finds that defendant's declarations "do not clearly indicate that the emails 'formed an essential link' in the process of creating a FAQ or responding to a borrower, nor do they state that the emails reflect the writers' personal opinions."
   
• Exemption 5, Attorney Work-Product Privilege:  The court holds that "Defendant has made a sufficient showing that it properly withheld portions of the . . . Procedures Manual ["that provide guidance to attorneys in advance of initiating litigation to collect on student loan debt[,]"] under Exemption 5 based on the work product privilege[.]"  The court relates that defendant "states that the manual 'was prepared at the direction of attorneys.'"  The court also finds that "[t]hese portions of the manual contain 'legal analysis and strategies' in preparation for litigation . . . and set forth a particular method of preparing documents for litigation in anticipation of certain legal challenges."