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Public Citizen, Inc. v. Dep't of Education

November 10, 2003


The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge


By Memorandum Opinion and Order issued in this case on June 17, 2002, the Court ordered defendants to comply with plaintiff's August 2001 FOIA request for the identities of certain student loan borrowers whose loans had been "falsely certified," but whose loans defendant Department of Education ("DOE") had refused to discharge because the borrower had failed to meet certain employment requirements that were later deemed unlawful by this Circuit in Jordan v. Secretary of Education, 194 F.3d 169, 172 (D.C. Cir. 1999). In response to this Court's June 17 Order, the DOE claims to have searched its student loan database for responsive records. Contending that this search was inadequate, plaintiff has filed a Motion to Enforce Judgment, requesting that the Court order defendants to search DOE's paper student loan discharge files. DOE opposes this motion, arguing that its search was sufficient to satisfy FOIA's requirements and that plaintiff should be ordered to pay DOE's costs and fees associated with its database search, along with any fees that may be incurred in the event that additional searches are ordered by this Court. Upon consideration of the pleadings and the entire record herein, this Court finds defendants' arguments to be unconvincing, and plaintiff's motion for enforcement will thus be granted.


The background to this case is set out in the Court's prior Memorandum Opinion dated June 17, 2003. In brief, plaintiff sought disclosure of records under FOIA in an effort to shed light on defendant DOE's activities and to be able to inform certain student loan borrowers of their potential eligibility for loan discharges. In 1992 Congress required the Secretary of Education to discharge loans of borrowers who had been falsely certified by their schools as able to benefit from vocational programs. See 20 U.S.C. § 1087(c)(1). Thereafter, the Secretary of Education implemented regulations that required any student seeking a discharge to submit a statement that he or she had attempted, but was unable, to find employment in the occupation for which the program provided training, or that he or she was able to do so only after further training. See 34 C.F.R. § 682.402(e)(3)(ii)(C) (repealed) (quoted in Jordan, 194 F.3d at 170). The Court of Appeals held that these discharge conditions relating to subsequent employment were unlawful. Id. at 171. In response, the Secretary of Education removed the "employment attempt" provisions in 2000, but did not grant the discharge applications that previously had been denied between 1992 and 2000. See 34 C.F.R. § 682.402.

As a result, plaintiff made two FOIA requests to DOE for information relating to student loan borrowers who had been improperly denied discharges between 1992 and 2000. At issue here is plaintiff's August 13, 2001 request for "records that identify the borrowers who were denied discharge under 20 U.S.C. [§] 1087(c)(1) on the basis of the subsequent employment conditions that the Department initially imposed." (Defs.' Ex. 3 at 1.) In that letter, plaintiff also requested a fee waiver. ( Id.) Defendants initially denied plaintiff's request, relying only on Exemption 6 pertaining to personal privacy protection. On appeal of this denial, this Court ruled that defendants had improperly invoked Exemption 6 and that they had to comply with plaintiff's FOIA request. (Mem. Op. at 24.)

In response to this Court's Order, defendants determined that over 25,000 loan discharge applications were denied for a variety of reasons between 1995 and November 2000, and that a search of the paper files containing each borrower's application and reasons for that borrower's denial would therefore "be very costly and take many hours to complete." (Decl. of Ronald F. Robinson ["Robinson Decl."] ¶¶ 12, 13.) Instead of manually searching these paper files, DOE embarked on an electronic search of its student loan database. (Decl. of Paul Joseph Weber ["Weber Decl."] ¶¶ 5-16; Supp. Decl. of Paul Joseph Weber ["Weber Supp. Decl."] ¶¶ 3-9.) When a borrower applies for a loan discharge, his or her account is given a certain code in the database. (Weber Decl. ¶ 4.) DOE electronically searched its database's "Notepad" entries attached to accounts given this code. ( Id. ¶ 5.) Notepad entries are computer records related to individual accounts and entered on-line by DOE personnel after some contact with the borrower. (Weber Decl. ¶ 6.) DOE searched the 1,200,000 Notepad entries associated with the accounts of borrowers who applied for loan discharges for relevant keywords such as "deny," "work," "employ," and "job" in an attempt to identify those who were denied because they failed to meet the DOE's subsequent employment requirements. (Weber Decl. ¶¶ 7, 9-11; Weber Suppl. Decl. ¶¶ 7-9.) As a result of these searches, DOE ultimately identified 4,600 possible records, which were associated with 770 individuals, containing some combination of the words searched.*fn1 (Weber Decl. ¶ 12.) These records were then reviewed to determine which were responsive. (Weber Decl. ¶¶ 15-16; Decl. of Candice M. Parrish ["Parrish Decl."] ¶¶ 3-8; Decl. of Crystal Sweet ["Sweet Decl."] ¶¶ 3-8.) As a result of this search, DOE personnel produced and delivered to plaintiff a list of 179 individuals who had been denied a discharge due to employment conditions. (Parrish Decl. ¶ 8; Sweet Decl. ¶ 8; Pl.'s Mot. at 6.)


I. Fee Waiver

FOIA requesters must generally pay reasonable charges associated with processing their requests. 5 U.S.C. § 552(a)(4). DOE regulations provide that if a FOIA request would result in a search costing more than $25 or an amount specified in the request, then the requester must be notified and afforded an opportunity to reformulate the request. 34 C.F.R. § 5.61. Further, DOE regulations require the agency to contact the requester and obtain satisfactory payment arrangements whenever the estimated costs exceed $250. 34 C.F.R. § 5.62(a).*fn2 Some requesters may be entitled to a waiver of these fees. For instance, FOIA requires agencies to waive fees for requesters able to demonstrate that "disclosure of the information is in the public interest...." § 552(a)(4)(iii). A requester who disagrees with the denial of a waiver must pursue administrative remedies. Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309, 1310 (D.C. Cir. 2003); Oglesby v. United States Dep't of the Army, 920 F.2d 57, 61-62 (D.C. Cir. 1990). However, if the agency fails to respond to a waiver request within 20 days, the requester is deemed to have constructively exhausted administrative remedies and may seek judicial review. § 552(a)(6)(A), (C); see also Rossotti, 326 F.3d at 1310.*fn3

Plaintiff's August 13, 2001 FOIA request to DOE included a request for a fee waiver, claiming that disclosure of the requested information was in the public interest. (Defs.' Ex. 3 at 1.) Further, plaintiff's letter requested that it be notified before fees were incurred "[i]f fees are not waived and the anticipated fees exceed $50.00...." ( Id.) Defendants responded to plaintiff's request on January 7, 2002, denying plaintiff's request for records, but failing to address plaintiff's request for a fee waiver. (Letter of 1/7/2000 from Maria-Teresa Cueva, DOE FOIA Officer, to Michael Tankersley.) Plaintiff argues that because DOE neglected its statutory duty by failing to respond to plaintiff's request, it is now barred from contesting the waiver. (Pl.'s Reply at 7-9.) More precisely plaintiff contends that, because DOE did not reply to its fee waiver request, but instead proceeded to search for responsive documents without seeking plaintiff's assent to the fees it incurred, DOE's conduct is "only consistent with... [DOE's] regulations if the agency intended to waive fees under the public interest standard." ( Id. at 9.)

Although DOE responded to plaintiff's FOIA request for documents, it concedes that it did not respond to plaintiff's fee waiver request prior to filing its opposition to plaintiff's motion; instead, it argues that the fee waiver issue has never been ripe for judicial determination. (Defs.' Opp. at 13.) Defendants' argument is unpersuasive. DOE neglected its statutory duty to respond to plaintiff's request for a fee waiver within 20 days of its request. 5 U.S.C. § 552(a)(6)(A)(i). It also did not notify plaintiff that costs associated with its request would exceed $50, the amount plaintiff indicated it was willing to pay and thereby deprived plaintiff of the opportunity to reformulate its request before costs were incurred. 34 C.F.R. § 5.61. Further, DOE failed to notify plaintiff that costs for its request would exceed $250, as required by 34 C.F.R. § 56.2. Instead, it went ahead with its search. Having failed to object to plaintiff's fee waiver request when it was required by statute to do so and having proceeded with a search without notifying plaintiff of the cost of that search, DOE cannot now, at this late date, object to plaintiff's claims on the basis that plaintiff must pay for searches already performed or additional searches that may be required.*fn4

Further, allowing defendants to object at this point to the fee waiver would, in effect, allow DOE to raise its defenses to plaintiff's August 13, 2001 FOIA request at different times throughout the litigation, thereby undermining the very goals recognized by the Circuit in Smith v. United States Department of Justice, 251 F.3d 1047, 1051 (D.C. Cir. 2001). There, the Court held that all FOIA exemption claims must be raised at once, since "the delay caused by permitting the government to raise its FOIA exemption claims one at a time interferes both with the statutory goals of 'efficient, prompt, and full disclosure of information,'... and with 'interests of judicial finality and economy.'" 251 F.3d at 1051 (quoting Maydak v. United States Dep't of Justice, 218 F.3d 760, 764 (D.C. Cir. 2000)). Just as allowing an agency to assert its exemption claims at different times during the course of litigation frustrates the efficient and prompt administration of FOIA, allowing defendants now to argue for the first time that plaintiff must pay fees would likewise frustrate these goals, as well as deprive plaintiff of its right to administrative and judicial review of such a denial.*fn5 Accordingly, defendants' untimely request that plaintiff be required to pay the costs of past and future searches is denied.

II. Adequacy of the Search

Plaintiff contests the adequacy of DOE's search. As an initial matter, the parties disagree as to whether a search of paper files would be unduly burdensome. Generally, an agency need not honor a FOIA request that requires it to conduct an unduly burdensome search. See 5 U.S.C. ยง 552(a)(3)(A) (providing that a FOIA request must reasonably describe records requested); Nation Magazine, Washington Bureau v. United States Customs Serv., 71 F.3d 885, 891-92 (D.C. Cir. 1995) (finding unreasonable a request to search "23 years of unindexed files for records pertaining to [one individual]... would impose an unreasonable burden on the agency"); see also Am. Fed'n of Gov't Employees, Local 2782 v. United States Dep't of Commerce, 907 F.2d 203, ...

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