Ed Department memo to Marijuana Policy Coordination Committee
| Tracking # |
18-02747-F, 19-00026-A, 19-00806-F 18-02747-F, 19-00026-A 18-02747-F |
| Submitted | Aug. 29, 2018 |
| Est. Completion | None |
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Communications
From: CJ Ciaramella
To Whom It May Concern:
Pursuant to the Freedom of Information Act, I hereby request the following records:
- The memo submitted to the White House Office of National Drug Control Policy's Marijuana Policy Coordination Committee regarding the negative impacts of marijuana legalization and increased use.
For background, according to a BuzzFeed News report, the White House recently ordered 14 agencies, including the Department of Education, to submit two-page, bulleted fact sheets no later than Aug. 10 that would “identify marijuana threats; issues created by state marijuana initiatives; and consequences of use, production, and trafficking on national health, safety, and security”: https://www.buzzfeednews.com/article/dominicholden/trump-secret-committee-anti-marijuana
I therefore request that fact sheet and any other material submitted to the White House in response to its order.
The requested documents will be made available to the general public, and this request is not being made for commercial purposes.
In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.
Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires.
Sincerely,
CJ Ciaramella
From: U.S. Department of Education
Dear CJ Ciaramella,
This is the Department's acknowledgment of your request for information pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. Your request was forwarded to the primary responsible office(s) for action.
Any future correspondence or questions regarding your request, please contact the FOIA Public Liaison at 202-401-8365 or
Thank you. (mailto:EDFOIAManager@ed.gov) EDFOIAManager@ed.gov
ED FOIA Manager
FOIA Service Center
U.S. Department of Education
From: U.S. Department of Education
Good Afternoon,
Please find attached an AO Initial Determination Letter regarding your request.
Thanks,
DeShawn Middleton
[https://i.imgur.com/f8dAnOG.png]
FOIA Service Center, OM/OCPO
U.S. Department of Education
400 Maryland Ave. SW, Room 7C102
Washington, DC 20202-4510
FOIA Hotline (202) 401-8365
-
image001
From: U.S. Department of Education
Good Afternoon,
Please find attached a final letter regarding your request.
Thanks,
DeShawn Middleton
[https://i.imgur.com/f8dAnOG.png]
FOIA Service Center, Office of the Secretary/Executive Secretariat
U.S. Department of Education
400 Maryland Ave. SW, Room 7C108
Washington, DC 20202-4510
FOIA Hotline (202) 401-8365
-
image001
From: U.S. Department of Education
Dear CJ Ciaramella,
This is the Department's acknowledgment of your request for information pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. Your request was forwarded to the primary responsible office(s) for action.
Any future correspondence or questions regarding your request, please contact the FOIA Public Liaison at 202-401-8365 or Thank you. (mailto:EDFOIAManager@ed.gov) EDFOIAManager@ed.gov
ED FOIA Manager
FOIA Service Center
U.S. Department of Education
From: CJ Ciaramella
To whom it may concern:
This is a Freedom of Information Act appeal regarding FOIA request No. 18-02747-F.
I. The Request
On Sep. 29, 2018, Reason Magazine reporter C.J. Ciaramella submitted a FOIA request to the Education Department (hereafter "Department") seeking “the memo submitted to the White House Office of National Drug Control Policy's Marijuana Policy Coordination Committee regarding the negative impacts of marijuana legalization and increased use.” The White House reportedly ordered 14 agencies and departments to submit two-page, bulleted fact sheets no later than Aug. 10 that would “identify marijuana threats; issues created by state marijuana initiatives; and consequences of use, production, and trafficking on national health, safety, and security," according to BuzzFeed News. The FOIA request accordingly sought the Department's submitted memo.
The request was received and assigned tracking number 18-02747-F. On Jan. 31, 2019, the Department issued a final response, withholding all responsive documents under Exemption (b)(5), which exempts "inter- or intra-agency information that could be withheld under civil discovery, including information subject to the deliberative process, attorney-client, or attorney-work product privileges."
II. The Argument
A. The Department has not satisfied its burden of demonstrating that the responsive documents are wholly exempt from disclosure under Exemption 5.
To qualify for FOIA’s deliberative process privilege, an agency must demonstrate, not simply declare, that the withheld documents are both “pre-decisional” and “deliberative.” Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C. Cir. 2006). A document is pre-decisional if it was “generated before the adoption of an agency policy” and deliberative if it reflects the “give-and-take of the consultative process.” Id. The privilege does not protect material that is “purely factual” or “an agency’s final opinions, statements or policy and interpretations definitively adopted by the agency, and any document having ‘the force and effect of law.’” Nat’l Wildlife Fed’n v. U.S. Forest Serv., 861 F.2d 1114, 1122 (9th Cir. 1988). Furthermore, records are “deliberative” only when they “reflect the personal opinions of the writer rather than the policy of the agency.” Morley, 508 F.3d at 1127 (quoting Coastal States Gas Corp., 617 F.2d at 868).
An agency seeking to invoke FOIA’s deliberative process exemption must establish “what deliberative process is involved, and the role played by the documents in issue in the course of that process.” Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 867 (D.C. Cir. 1980).
However, the Department merely states that it is withholding the records pursuant to 5 U.S.C. Section 552 (b)(5) and makes no effort to satisfy its burden of proof that the responsive documents fall under the exemption. The Department's final response also failed to state that harm will result from disclosure of the documents, even though an agency invoking Exemption 5 is required to “show, by specific and detailed proof, that disclosure would defeat, rather than further, the purposes of FOIA.” Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 556 F.2d 242, 251 (D.C. Cir. 1977).
The Department has thus failed to provide the “detailed justification” required under the FOIA to show that the records in question are both pre-decisional and deliberative, and given the nature of the memos, it appears highly likely that they do not meet both requirements. Id.
B. The Department is required to produce any “reasonably segregable” portions of the withheld pages.
The Department is also required by law under 5 U.S.C. § 552(b) to produce any “reasonably segregable” portion of the pages being withheld. The fact that the Department withheld the responsive documents in their entirety—indeed, the final response to the FOIA request does not even note how many pages of responsive documents it was withholding—suggests that the office failed to conduct the required segregability analysis. It is highly likely that the withheld pages include purely factual information, such as the authors of the memo, background or summary information, and the date on which the memo or memos were sent. Therefore, to the extent that the withheld records contain information that is both pre-decisional and deliberative, this information should be redacted and the remainder of the text produced.
***
For the reasons set forth above, the requester respectfully requests that the Department produce the documents responsive to this request and respond to this appeal within 20 days. If you have any questions or concerns regarding this appeal, please contact me directly at 503-951-9863.
Sincerely,
CJ Ciaramella
From: U.S. Department of Education
Dear CJ Ciaramella,
This is the Department's acknowledgment of your appeal for information pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. Your request was forwarded to the primary responsible office(s) for action.
Any future correspondence or questions regarding your request, please contact the FOIA Public Liaison at 202-401-8365 or Thank you. (mailto:EDFOIAManager@ed.gov) EDFOIAManager@ed.gov
Art C. Caliguiran
FOIAService Center Officeof the Executive Secretariat U.S.Department of Education 400Maryland Ave. SW Washington,DC 20202-4510
From: U.S. Department of Education
From: U.S. Department of Education
Good afternoon,
Attached you will find the Department's final response to your FOIA request.
Thanks,
Robert Wehausen
FOIA Team Lead
Department of Education
400 Maryland Ave, SW 7C132
Washington, DC 20202
(202) 205-0733
From: U.S. Department of Education
Dear CJ Ciaramella,
This is the Department's acknowledgment of your request for information pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. Your request was forwarded to the primary responsible office(s) for action.
Any future correspondence or questions regarding your request, please contact the FOIA Public Liaison at 202-401-8365 or Thank you. (mailto:EDFOIAManager@ed.gov) EDFOIAManager@ed.gov
ED FOIA Manager
FOIA Service Center
U.S. Department of Education
From: U.S. Department of Education
Dear CJ Ciaramella,
Please find attached a 20 day status notification for your FOIA request.
Thank you,
FOIA Service Center
US Department of Education
(202) 401-8365
From: U.S. Department of Education
Dear CJ Ciaramella,
Please find attached above the final response to your FOIA appeal.
Thank you,
Art C. Caliguiran
FOIA Service Center
US Department of Education
(202) 401-8365
From: U.S. Department of Education
Dear CJ Ciaramella,
Please find attached above the final response to your FOIA request.
Thank you,
FOIA Service Center
US Department of Education
(202) 401-8365
From: U.S. Department of Education
Dear CJ Ciaramella,
Please find attached above the responsive documents to your FOIA request.
Thank you,
FOIA Service Center
US Department of Education
(202) 401-8365
-
19-01570-F
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