UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL STUDENT LEGAL DEFENSE NETWORK,

Plaintiff,

v. Civil Action No. 1:19-cv-03473 (CJN)

UNITED STATES DEPARTMENT OF EDUCATION,

Defendant.

MEMORANDUM OPINION

The sole issue in this Freedom of Information Act case is whether the government’s search

for responsive records was adequate. The Court concludes that it was, and therefore grants

Defendant’s Motion for Summary Judgment, ECF No. 12, and denies Plaintiff’s Cross-Motion for

Summary Judgment, ECF No. 14.

Background

The Higher Education Act of 1965 (as amended),

et seq., requires the

Department of Education to determine the eligibility of institutions to participate in federal student

aid programs. See generally

, 1091, 1094. In 2014, the Department issued

regulations setting a process by which the Department would make such determinations. See

generally 34 C.F.R. Part 668, Subpart Q (2019) (“Gainful Employment regulations”). As one step

in the determinations, the regulations provide for, or perhaps require, the Department to obtain

1 data from the Social Security Administration annually in order to calculate debt-to-earnings ratios

for graduates from institutions. See

(2019). 1

In 2019, Plaintiff National Student Legal Defense Network submitted a FOIA request to

the Defendant United States Department of Education seeking:

1. Any output provided by the Social Security Administration to the U.S. Department of Education regarding “gainful employment” programs. For purposes of this request, “output” means any data or set up data, regardless of form, that includes aggregate, program-level data on mean earnings, median earnings, and/or debt-to- earnings rates.

2. Any statistical reports provided by the Social Security Administration to the U.S. Department of Education about the matching rate or other assessment of the success of any data match, pursuant to a memorandum of understanding and computer matching agreement between the U.S. Department of Education and the Social Security Administration.

FOIA Letter at 2, ECF No. 12-4; First Hammond Decl. ¶ 8, ECF No. 12-3. The Network sought

“only documents that were provided by [the Social Security Administration] to the Department [of

Education] after January 1, 2017.” First Hammond Decl. ¶ 8 (emphasis omitted).

After initiation of this litigation, the Department produced two documents totaling five

pages. The parties agreed to narrow their dispute to the adequacy of the Department’s search. See

Joint Status Report at 1, ECF No. 10.

The Department assigned the Network’s request to the Federal Student Aid office, which,

in turn, assigned the request to its Business Operations, Borrower Defense, and Policy Liaison

Units. First Hammond Decl. ¶ 9; Second Hammond Decl. ¶ 9. The Business Operations and

1 When the Complaint was filed, litigation involving the Department’s alleged failure to implement these regulations had been pending in this District. See Compl., ECF No. 1; Docket, Maryland v. Dep’t of Educ., No. 1:17-cv-02139-KBJ (D.D.C.). In July 2019, the Department officially repealed the Gainful Employment regulations, effective July 2020. See Program Integrity: Gainful Employment,

(July 1, 2019). The repeal is now subject of pending litigation. See Compl., Am. Fed’n of Teachers v. DeVos, No. 5:20-cv-00455-EJD (N.D. Cal. Jan. 22, 2020); Compl., California v. DeVos, No. 5:20-cv-01889-EJD (N.D. Cal. Mar. 18, 2020).

2 Policy Liaison Units responded that they were not reasonably likely to have responsive records

based upon their duties and areas of responsibility, and that they were unaware of any other

locations where responsive records might be located. First Hammond Decl. ¶ 9.

The Borrower Defense Unit responded that it did not receive responsive records directly

from the Social Security Administration but was aware of potentially responsive records from two

custodians—Phillip Juengst in the Department’s Office of the Chief Financial Officer, and Eric

Melis, a former Department employee who worked in the Systems Integration Division.

.

Juengst was aware of two responsive spreadsheets and successfully retrieved those documents

from his emails.

. The Department then produced these two documents in full.

¶¶ 11–

12.

Thereafter the Department moved for summary judgment, arguing that the declarations of

Cynthia Hammond, a Group Director of the Policy Implementation and Liaison Group

demonstrate that its search was reasonable. Def.’s Mot., ECF No. 12. Taken together, the

declarations explain that the Department only receives responsive documents from the Social

Security Administration upon request; that such requests can only be made by a few Department

employees; that Hammond had personal knowledge that just two such requests were made; and

that the Department produced two corresponding documents. First Hammond Decl. ¶¶ 8, 11, 13–

16; Third Hammond Decl. ¶ 4–5. The Network filed a cross-motion for summary judgment,

arguing that the declarations should not be presumed accurate because, inter alia, they could only

be accurate if the Department were not following its gainful employment regulations and the

Department never explained the inconsistency. Pl.’s Mot., ECF No. 14. Furthermore, the Network

argued that even accepting the declarations as accurate the search was insufficient because the

3 Department never explained how the declarant knew there were only two responsive documents.

At oral argument, the Network conceded that the search would be reasonable if the

Department could show that it posed only two requests to the Administration during the relevant

period, or that the Administration provided only two data sets to the Department. Hearing of

February 9, 2021. The Court thereafter permitted the Department to file a supplemental brief and

declaration addressing questions relevant to why the Department knew that there were only two

responsive documents despite having conducted a limited search. Order of February 11, 2021,

ECF No. 21. In particular, the Department had previously explained that it only receives data from

the Administration upon request; its supplemental filing expressly stated that it made only two

such requests during the relevant time period. Third Hammond Decl. ¶ 5. The Network responded

that the Department was obligated to conduct additional search efforts to be sure it had only two

data sets. Pl.’s Supp. Br., ECF No. 24.

Legal Standards

Rule 56 of the Federal Rules of Civil Procedure allows this Court to grant summary

judgment when the pleadings, discovery, affidavits, and other material on file show no genuine

dispute of material fact and that the moving party is entitled to judgment as a matter of law.

Anderson v. Liberty Lobby, Inc.,

(1986). “[T]he vast majority of FOIA cases

can be resolved on summary judgment.” Brayton v. Office of U.S. Trade Representative,

(D.C. Cir. 2011).

The Freedom of Information Act provides, subject to exceptions not relevant here, that:

[E]ach agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person. . . . In responding under this paragraph to a request for

4 records, an agency shall make reasonable efforts to search for the records in electronic form or format[.]

(a)(3)(A), (C).

The burden of proof in FOIA cases is flipped: the defendant must show that its search was

adequate. Jud. Watch, Inc. v. DOJ,

, at *4 (D.D.C. 2022); Light v. DOJ,

(D.D.C. 2013). Adequacy depends on the individual facts and circumstances of

each case. See Truitt v. Dep’t of State,

(D.C. Cir. 1990). But in all cases the

“agency must show that it made a good faith effort to conduct a search for the requested records,

using methods which can be reasonably expected to produce the information requested.” Oglesby

v. U.S. Dep’t of Army,

(D.C. Cir. 1990). An agency can satisfy this burden by

providing a “reasonably detailed affidavit, setting forth the search terms and the type of search

performed, and averring that all files likely to contain responsive materials (if such records exist)

were searched.”

The touchstone is reasonableness. See

(a)(3)(C); Mobley v. CIA,

(D.C. Cir. 2015). “When a request does not specify the locations in which an agency

should search,” the Court will not require potentially duplicative searches “if additional searches

are unlikely to produce any marginal return.” Campbell v. U.S. Dep’t of Justice,

(D.C. Cir. 1998). “The agency is not required to speculate about potential leads.” Kowalczyk v.

DOJ,

(D.C. Cir. 1996). “If . . . the requester clearly states that he wants all

agency records on a subject, i.e., regardless of their location, but fails to direct the agency’s

attention to any particular office other than the one receiving the request, then the agency need

pursue only a lead it cannot in good faith ignore, i.e., a lead that is both clear and certain.”

Throughout all of this analysis, the Court must keep in mind that “FOIA, requiring as it

does both systemic and case-specific exercises of discretion and administrative judgment and

5 expertise, is hardly an area in which the courts should attempt to micro manage [sic] the executive

branch.” Schrecker v. DOJ,

(D.C. Cir. 2003) (quoting Johnson v. Exec. Off. for

U.S. Att’ys,

, 776 (D.C. Cir. 2002)).

Analysis

The Department argues that the three Hammond Declarations, in combination, demonstrate

that (1) it is reasonable to believe there are only two responsive records because the Department

made only two requests for records that would be responsive, and (2) the Department searched for

and found the two responsive records (albeit in an ad hoc manner). These explanations justify

summary judgment, the Department contends, because the declarations should be accorded a

presumption of good faith, see Safecard Servs., Inc. v. SEC,

(D.C. Cir. 1991),

that cannot be rebutted by the Network’s “purely speculative claims about the existence and

discoverability of other documents.” Brown v. Dep’t of Just.,

(D.D.C.

2010); see also Trans Union LLC v. Fed. Trade Comm’n,

(D.D.C. 2001)

(requiring that a requester present “evidence that the agency’s search was not made in good faith”);

cf. Pl.’s Mot. at 11–16 (speculating about various custodians who may have potentially responsive

records and the existence of additional records that may not be “the same as those already

produced”).

The Network makes two categories of arguments in response. It argues, first, that even

crediting the declarations, the Department’s search was inadequate because the declarations have

inconsistencies or are facially deficient. See Pl.’s Mot at 6–13; Pl.’s Supp. Br. at 2–3, 4–5, ECF

No. 24. And second, it argues, the declarations should not be credited because they are conclusory

and do not explain why the Department did not search for data that its regulations required it to

request from the Administration. See Pl.’s Supp. Br. at 3–4.

6 I. The Declarations Demonstrate the Department Produced All Responsive Documents.

The Hammond Declarations explain that in order for the Department to receive data from

the Social Security Administration, the Department must first transmit certain data from its

National Student Loan Data System mainframe. Third Hammond Decl. ¶ 4. The mainframe is a

highly-protected database in which “only three Department employees . . . have the requisite

mainframe level of permission to access and retrieve from NSLDS the data required to request

SSA data regarding graduate earnings.” Id. ¶ 4. And “[o]nly two such retrievals were made

between January 1, 2017 and May 3, 2019”—the relevant time period for the FOIA request. Id.;

see also Second Hammond Decl. ¶¶ 6–9 (explaining the basis for Hammond’s personal

knowledge). Because just two retrievals were made, it was reasonable to expect two corresponding

requests to the Social Security Administration, and two responses. And the Department found two

responses (albeit through an ad hoc email search), which it produced. Id. ¶ 8.

The Network nevertheless makes several arguments about why the declarations are

internally inconsistent or insufficient. It argues that although the declarations state that only two

requests for data were made, the Department at least should have confirmed with the limited

number of other known custodians that the documents they had were duplicative. But at oral

argument, the Network agreed that if the Department was reasonable in its understanding that there

were only two responsive documents because there were only two requests for data, then its search

was reasonable. See Hearing of Feb. 9, 2021. Even absent this concession, the Court concludes

that the Department acted reasonably in ending the search after finding and producing the two

documents, because the Department had a reasonable basis to believe there were only two

responsive documents. 2 See Am. Chemistry Council, Inc. v. U.S. Dep’t of Health & Hum. Servs.,

2 After supplemental briefing was complete, the Department submitted a Notice informing the Court that the Department had performed a supplemental search of the email records of three 7

(D.D.C. 2013) (concluding that a search was reasonable when agency

declined to search potential custodians who asserted they were unlikely to have any responsive

records).3

The same reasoning dispenses with the Network’s arguments about allegedly overlooked

custodians, offices, and duplicate records. The Network argues the declarations do not explain

why the FOIA request was assigned to just the Business Operations Unit, Borrower Defense Unit,

and Policy Liaison Unit, and not, as the Network hypothesizes, the Office of Postsecondary

Education, the Office of the General Counsel, and the Office of the Chief Financial Officer, even

though each is involved in the Gainful Employment regulations. Pl.’s Mot. at 8 n.5, 9; Pl.’s Reply

at 5–6. In a more typical case, this argument might be fatal to a motion for summary judgment for

the reasons the Network asserts. See Schaerr v. DOJ,

, 122 (holding agency’s

search inadequate when it failed to explain “why no other components of the agency were

consulted”). But here, as noted, the Department has done enough to show that it is reasonably

likely that there are only two responsive records, both of which have already been produced—and

thus that it is not reasonably likely for further searches of other offices to turn up other (non-

duplicative) documents. See Campbell,

(concluding that FOIA does not require

employees that the Network had specifically identified as likely custodians, Eric Melis, Valerie Sherrer, and Brent Madoo. ECF No. 25. The Department represented that the supplemental search located one duplicate copy of a record that had already been produced, but otherwise turned up no responsive records.

The Network correctly objected that these representations were unsupported by any affidavit or evidence. ECF No. 27. Nonetheless, to the extent the Court may consider such representations, they weigh in favor of the Court’s conclusion that the search was reasonable. 3 The Network’s briefs could also be read to argue that even if it were known that a search would produce only duplicative records, the Department is legally obliged to perform the search regardless. See Pl.’s Supp. Reply at 2. Not so. See

(a)(3)(C) (requiring only “reasonable efforts”); Campbell,

(concluding that FOIA does not require “additional searches [that] are unlikely to produce any marginal return”).

8 “additional searches [that] are unlikely to produce any marginal return”). The same logic applies

to potential custodians—both known and unknown.

The Network’s remaining arguments about inconsistencies in the declarations are

overblown. The Network asserts the declarations are inconsistent because only three employees

(Melis, Sherrer, and Madoo) have the permission to use the mainframe to request data from the

Administration, but that the documents were produced from the emails of a fourth employee

(Juengst). Pl.’s Reply at 1, 3–6. But there’s nothing inconsistent about the fact that only three

employees could request data but a broader or different group could receive it. In any event,

because the request here narrowly targets only the documents received from the Social Security

Administration, it does not matter whether the documents are produced from the initial recipient

or from someone who received an identical copy.

And the Network’s arguments against the ad hoc nature of the Department’s search

likewise fail. The Network is correct that “Agency affidavits that ‘do not denote which files were

searched, or by whom[;] do not reflect any systematic approach to document location[;] and do

not provide information specific enough to enable [the requester] to challenge the procedures

utilized’ are insufficient to support summary judgment.” Shaerr v. DOJ,

, 120

(D.D.C. 2020) (quoting Weisberg v. DOJ,

(D.C. Cir. 1980)). The Network

asserts the Department failed to explain how it knew there were no relevant documents in other

units. See Pl.’s Reply at 4, n.2, ECF No. 19. And, the Network argues, the Department failed to

explain how Juengst searched his own email, Pl.’s Mot. at 12, ECF No. 14 (questioning “how did

Mr. Juengst search his email using the four search terms? Did he search his inbox? What about

his outgoing mail? Did he search his trash?” etc.), or what his precise job responsibilities were,

at 12–13. But none of that is relevant when, as here, the Department is reasonably likely to

9 have produced all of the responsive documents notwithstanding the particulars. The reason the

Department is “reasonably likely” to have produced all responsive documents has little to do with

the method of its search. Rather, it is based on the Department’s reasonable understanding that

there are only two responsive documents and that it found and produced those two responsive

documents. 4

Perhaps the Network’s best argument on this front is that the declarations lack sufficient

detail about Hammond’s personal knowledge of the data exchanges. The Network emphasizes

that a unit that Hammond leads initially asserted it was unaware of the location of any potentially

responsive documents, but nonetheless Hammond asserted in her first declaration that, given her

duties, she would be “aware if additional responsive records existed.” First Hammond Decl. ¶ 16.

The government counters that the Network’s speculation about Hammond’s knowledge is

inappropriate. It is established that a declarant “is deemed to have personal knowledge if [s]he has

a general familiarity with the responsive records and procedures used to identify those records and

thus is not required to independently verify the information contained in each responsive record.”

Inst. for Policy Studies v. CIA,

(D.D.C. 2012). And the government

argues it is clear from the declarations that Hammond has subject matter familiarity, personally

reviewed the FOIA request, reviewed all produced records, determined the Network “received all

records responsive to the Request,” and she asserted she would be aware “given [her] duties and

responsibilities at the Department” if additional responsive records existed. First Hammond Decl.

¶¶ 14–16.

4 This reasoning also applies to the Network’s contention that the declarations describe unproduced responsive documents. Pl. Mot. at 11, ECF No. 13. It is reasonable to believe that if they exist, they would be duplicates. See also supra at n.2.

10 The Court agrees with the government that the declarations, taken together, have done

enough to establish Hammond’s personal knowledge regarding responsive documents. To be sure,

the government puts great weight on Hammond’s knowledge. But the record is now clear that

Hammond was always aware of the existence of responsive records, just not any located within

her group—the Policy Liaison Unit. Second Hammond Decl. ¶ 9. Instead, she ensured the

appropriate unit—the Borrower Defense Unit—was included in the search. Id. Hammond’s

awareness is substantiated because she was required to give authorization, in writing, for

Department employees to request data from the Administration, and she met weekly with those

employees during the relevant period. Id. ¶¶ 5–9; Third Hammond Decl. ¶ 4. These points,

particularly in combination, explain the basis for Hammond’s assertion that she “would be aware

if additional responsive records existed.” First Hammond Decl. ¶ 16. Any apparent

inconsistencies have been reconciled. The declarations are internally consistent and, if credited,

establish that the Department produced all responsive records.

II. The Declarations Should Be Credited.

All of that assumes, of course, that the declarations should be credited. The Network

presents a different type of argument in claiming they should not. In the Network’s view, during

the relevant time, the Department was required each year to request from the Administration data

used to determine whether certain educational institutions are eligible to participate in Title IV

federal student aid. See, e.g.,

(a) (2019) (“[F]or each award year, the

Secretary calculates D/E rates for a GE program . . .”); 668.405(a) (“[F]or each award year, the

Secretary determines the D/E rates for a GE program at an institution . . .”); 668.409(a) (“For each

award year for which the Secretary calculates a D/E rates measure for a GE program, the Secretary

issues a notice of determination[.]”). Yet the Department failed to produce any responsive

11 documents related to data requests for the Gainful Employment program for Award Years 2016 or

2017. 5 The Network argues that absent evidence that the Department failed to ask the

Administration for that data—or that the Administration failed to provide it—the Department’s

position that it possesses no other responsive documents is not credible. See, e.g., Kronberg v.

Dep’t of Justice,

, 869–71 (D.D.C. 1995) (finding that the agency had failed to

demonstrate “beyond material doubt” that a search was adequate where it failed to uncover,

without explanation, documentation required by statute and regulation). Put differently, the

Network argues that the Department was required by law to ask the Administration at least two

additional times for data (that is, at least four times), but is representing here that it did so only

twice in total.

The government responds that its own regulations are irrelevant because “[r]elief for

purported violations of regulations is not available under FOIA.” Def.’s Reply at 10, ECF No. 17.

And, it argues, the declarations are clear: “The Department does not have in the National Student

Loan Data System . . . or elsewhere any ‘output provided by’ SSA ‘regarding “gainful

employment” programs . . . after January 1, 2017’ that Plaintiff sought in its FOIA request[.]”

Third Hammond Decl. ¶ 3 (quoting the FOIA request).

The Court is of two minds on this issue. On the one, when declarations imply, without

explanation, that an agency is acting in a manner inconsistent with its own regulations, it may be

doubtful whether a search was adequate. See Kronberg, 875 F. Supp. at 869–71. It is reasonable

in those circumstances to question whether the agency and declarant may be overlooking

responsive documents. This concern could easily be alleviated by a simple admission that an

5 The produced documents were requested and received pursuant to a memorandum of understanding entered into through the Gainful Employment program, but were not made in furtherance of that program. See Third Hammond Decl. ¶ 3.

12 agency failed to follow its regulations or an assertion that it did not interpret its regulations to be

inconsistent with its lack of documents. Here, the Network asserts it would have been content

with such an explanation and otherwise trusted the declarations. See Pl.’s Supp. Br. at 5, ECF No.

24 (“The Department could have avoided this entire dispute if it had . . . admitted that it failed to

follow the Gainful Employment regulation[.]”). But the Department has declined to make such an

express statement here, perhaps because it does not want to concede that it was not following the

regulation or discuss whether it had a contrary view of its obligations. On the other hand, the

government is right that a FOIA case is not the appropriate vehicle in which to litigate those

questions. See supra at n.1.

The Court concludes that the government has now done enough to demonstrate that—

regardless of what its regulations required—the Department’s search and declarations were

adequate. See Am. Chemistry Council,

(“This is [] not a case where the

agency has failed to consider a particular source[.]”). The Network certainly has a plausible claim

that the Department was required to request data annually under the Gainful Employment

regulations, and that the Department has failed to explain expressly why it did not find at least two

additional records. But, while the Department has not said so expressly, it has essentially admitted

either that it did not comply with the regulations or has a different interpretation of them. Where,

as here, the declarations are clear and there is little doubt that the department considered whether

it had overlooked the regulations in question, see Third Hammond Decl. ¶¶ 3–4, the Court will not

force the government to state directly what it has already admitted indirectly.

13 Conclusion

For the forgoing reasons, the Court grants the Defendant’s Motion and denies the Plaintiff’s

Motion. An Order will issue contemporaneously with this Opinion.

DATE: April 26, 2022 CARL J. NICHOLS United States District Judge

14