ONDCP marijuana memos

To Whom It May Concern:

Pursuant to the Freedom of Information Act, I hereby request the following records:

- all memos recently 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 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”: https://www.buzzfeednews.com/article/dominicholden/trump-secret-committee-anti-marijuana

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

To whom it may concern:

This is a Freedom of Information Act appeal regarding FOIA request No. 2018248b.

I. The Request

On Sep. 5, 2018, Reason Magazine reporter C.J. Ciaramella submitted a FOIA request to the ONDCP seeking “all memos recently 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 those memos.

The request was received and assigned tracking number FOIA 2018248b. On Dec. 17, 2018, ONCDP released 33 pages of responsive documents but redacted them in their entirety, citing (b)(5).

II. The Argument

A. ONDCP has not satisfied its burden of demonstrating that the 33 withheld pages are 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, ONCP merely notes in its final response that it “made certain redactions as noted under FOIA exemption 5 U.S.C. Section 552 (b)(5).” ONDCP’s final response also failed to sate 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).

Thus, the ONCDP 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. ONDCP is required to produce any “reasonably segregable” portions of the withheld pages.

ONDCP is also required by law to produce any “reasonably segregable” portion of the pages being withheld. 5 U.S.C. § 552(b). The fact that the pages were redacted in their entirety 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 names of the agencies, the authors of the reports, background or summary information, and the dates on which the reports were sent. Therefore, to the extent that the withheld pages contain information that is both pre-decisional and deliberative, this information should be redacted and the remainder of the text produced.

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For the reasons set forth above, the requester respectfully requests that ONDCP 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