DoJ Medical Marijuana Talking Points for Congress

To Whom It May Concern:

This is a request under the Freedom of Information Act. I hereby request the following records:

Talking points concerning a medical marijuana amendment that the Department of Justice distributed to members of Congress in advance of votes which took place on the following days: May 30, 2014 (House of Representatives), June 3, 2015 (House of Representatives) and June 11, 2015 (Senate Appropriations Committee).

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 fees cannot be waived, 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,

Thomas Angell

To Priscilla Jones:

This concerns your letter of August 18, 2015 concerning my Freedom of Information Act request seeking talking points about a medical marijuana amendment that the Department of Justice distributed to members of Congress in advance of votes which took place on the following days: May 30, 2014 (House of Representatives), June 3, 2015 (House of Representatives) and June 11, 2015 (Senate Appropriations Committee).

Since the records I seek were communications to Congress, I believe that they are likely to have originated from Legislative Affairs and that it is appropriate for your office -- and not the Criminal Division -- to process my request. For further background information on the records I seek, please see my article at http://www.marijuana.com/blog/news/2015/08/exclusive-justice-department-admits-misleading-congress-on-marijuana-vote/

Thanks for your attention to this matter.

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Aug. 12, 2015. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #CRM-300496163.

Thanks for your help, and let me know if further clarification is needed.

FOIA Appeal RE: CRM-300496163

Thomas Angell
MuckRock
DEPT MR 20185
P.O. Box 55819
Boston, MA 02205-5819

July 6, 2016

VIA Electronic Delivery
Director–Office of Information Policy
United States Department of Justice
1425 New York Ave. NW, STE 11050
Washington, DC 20530-0001

Dear Director:

On August 12, 2015, I submitted a FOIA request seeking talking points sent from DOJ to certain members of Congress regarding a 2014 medical marijuana amendment. You stated in your denial letter dated June 27, 2016 that you were denying my FOIA request in full based on 5 U.S.C. § 552(b)(5) because it “concerns certain inter- and intra-agency communications protected by the deliberative process privilege and the attorney work-product privilege.” However, “[t]o qualify under Exemption 5’s express terms, a document must satisfy two conditions: its source must be a Government agency, and it must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds the document.” Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 2 (2001).

As the rejection letter was dated June 27, 2016, it was sent three days prior to President Obama signing into law the FOIA Improvement Act of 2016, 114 S. 337, which establishes a “presumption of openness” for FOIA requests. While it is my view that the initial rejection was wrongly decided based on the FOIA law prior to the recent amendment, the amendment only adds to the argument that the requested document was wrongly withheld.

1. Congress Is Not A “Government Agency” Under FOIA

For the purposes of FOIA, “‘agency’ means each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include . . . the Congress.” 5 U.S.C. § 551(1)(A) (emphasis added). In a case that closely mirrors the facts of this request, DOJ denied a FOIA request for records from DOJ to Congress under the “inter-agency” theory. The D.C. Circuit rejected that argument, however, holding that:

"It is an appealing argument. It may well be true that if Congress had thought about this question, the Exemption would have been drafted more broadly to include Executive Branch communications to Congress, such as the letter sought here. But Congress did not, and the words simply will not stretch to cover this situation, because Congress is simply not an agency."
Dow Jones & Co. v. DOJ, 917 F.2d 571, 574 (D.C. Cir. 1990) (emphasis added). See also Paisley v. CIA, 712 F.2d 686, 699 n.54 (D.C. Cir. 1983) (same).

As the requested document is a memorandum to Congress, and not an intra-DOJ document, it clearly does not meet the definition of an inter-agency communication. Therefore, the analysis ends at step one and the requirements for keeping the requested materials exempt under § 552(b)(5) fails.

2. Document Is Not Protected Under The “Attorney Work Product” Or The “Deliberative Process” Privilege
Even if the first step of the § 552(b)(5) exemption was satisfied, which it is not, your rejection also fails the second step of § 552(b)(5) because the requested document is not protected work product nor does it constitute materials exempt under the deliberative process privilege.

a. Not Work Product

The attorney work product privilege protects documents prepared in reasonable anticipation of imminent litigation, not legislation. The requested document—by definition—constitutes talking points prepared by DOJ for Congress’s use in debating whether or not to enact section 538 of the Consolidated And Further Continuing Appropriations Act of 2015, Pub. L. No. 113-235 (Dec. 16, 2014).

b. Not Deliberative Process

Similarly, the deliberative process privilege protects the mental thoughts and impressions of agency personnel while they deliberate how or whether to act in a particular situation. It protects drafts and other internal communications—not final documents. See, e.g., NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975).

Conclusion

I respectfully request that my initial FOIA request is reviewed de novo, as Ms. Jones was clearly not following the requirements of FOIA. “Talking Points” from DOJ to Congress regarding pending legislation (not litigation) are neither intra- nor inter-agency communications, nor do they constitute material protected by either the deliberative process or work product privileges. Therefore, they must be released under FOIA without further delay.

Sincerely,

Thomas Angell