National Consumer Law Center v. Department of Education

In June 2017, the U.S. Department of Education (ED) postponed the effective date of a set of rules known as the Borrower Defense Regulations, which were designed to protect student borrowers from school fraud, abuse, and abrupt closures that have been prevalent in the for-profit higher education sector. As justification for the delay, the agency cited a lawsuit filed by the California Association of Private Postsecondary Schools (CAPPS) challenging the implementation of the rules.

On June 30, 2017, the National Consumer Law Center (NCLC) submitted a Freedom of Information Act (FOIA) request seeking communications from senior department employees concerning potential or current litigation over the Borrower Defense Regulations, including communications with representative of CAPPS and Career Education Colleges and Universities, both of which represent the for-profit college sector. ED disclosed some records in December but withheld others. Moreover, ED failed to disclose information known to be in its possession that is responsive to the FOIA request. NCLC submitted an administrative appeal but received no response to their appeal.

With Public Citizen Litigation Group as co-counsel, NCLC filed a lawsuit challenging the withholding of records in the U.S. District Court of the District of Massachusetts.

Following the initiation of litigation, ED disclosed 4678 pages of responsive records. Included within the records was a “Borrower Defense Unit Claims Review Protocol,” from which ED had redacted guidance to staff about when partial relief under its borrower defense regulations is appropriate and also examples of information used by ED to evaluate borrower defense applications. Specifically, ED withheld the partial-relief guidance and the borrower-defense examples under exemption 5 pursuant to the deliberative process privilege and the attorney-client privilege.

On May 21, 2019, ED filed a motion for summary judgment, arguing that its withholding of both the partial-relief guidance and the borrower-defense examples was justified under exemption 5. On June 18, 2019, NCLC filed a combined opposition to the government’s motion for summary judgment and cross-motion for summary judgment, arguing that neither the deliberative process privilege nor the attorney-client privilege applied to the withheld information. Summary judgment briefing is expected to conclude in July 2019.