DEA’s Five-Year Delay ‘Exhausted’ Researcher

     (CN) – The 4th Circuit cut through some red tape for a man who has been fighting for five years to learn about federal regulation of a certain muscle relaxant.
     John Coleman, a researcher and author, first asked the Drug Enforcement Administration in February 2008 for documents related to the government’s regulation of carisoprodol, a muscle relaxer marketed under the brand name Soma.
     In his Freedom of Information Act request, Coleman offered up to $1,000 in compensation for any costs the government incurred in retrieving the documents.
     Federal agencies must respond to FOIA requests within 20 working days, but the DEA waited 16 months to issue its denial, saying the $1,000 offer was “insufficient to cover the cost of the search, review and duplication.”
     The DEA added that it could not start to process Coleman’s request until he made an advance payment of $1,640 toward its estimated processing fee.
     Coleman said the agency was entitled only to duplication fees since he did not seek the documents for commercial use but rather as research for a book, journal article or news report. The researcher said he was also eligible for a fee waiver as a freelance journalist, and because he would use the information to disclose information “likely to contribute significantly to the public’s understanding of the operations of the government with respect to how it enforces provisions of the Controlled Substances Act.”
     The Justice Department’s Office of Information Policy failed to act on Coleman’s appeal within 20 days, as required by FOIA. Seven months later, in March 2010, the office told Coleman that the DEA acted inconsistently as to its own regulations concerning the fee assessment, and remanded the request to the DEA to reprocess.
     Coleman resubmitted his request the following month, this time asking for a full fee waiver. When a reply did not come four months later, Coleman filed a federal complaint pro se in Alexandria, Va.
     Just before answering Coleman’s lawsuit in September, the DEA took action on the FOIA request.
     It said Coleman was indeed a commercial requester because he was affiliated with a private consulting firm that offered services to pharmaceutical companies seeking legal approval of their drugs. The DEA also argued that Coleman had a “financial relationship” with drug manufacturers, pointing to one of his publications as evidence. Concluding that the search alone would cost far more than $1,000, the DEA again rejected the FOIA request.
     A federal judge sided with the agency in March 2011, finding that Coleman did not pay the necessary fee and had not exhausted administrative remedies since he never appealed the fee-waiver denial to the OIP.
     The 4th Circuit reversed on May 2, however, saying the DEA missed the point with its “quibbles about exactly what Coleman requested from the agency and when he did so.”
     “Given the DEA’s utter lack of due diligence in responding to the request, as evidenced by repeated and excessive delays, the dispute over any required fee is overripe for judicial resolution,” Judge J. Harvey Wilkinson wrote for a three-judge panel. “Coleman’s decision to challenge rather than prepay the assessed fee poses no barrier to a decision on the merits. He is now entitled to judicial review of the DEA’s fee assessment.”
     The ruling bemoans Coleman’s predicament as an “illustration of congressional hopes and the confirmation of congressional fears.”
     “Given the extended and inexcusable agency delay Coleman faced while pursuing his FOIA request, we conclude that he constructively exhausted his administrative remedies before commencing this litigation,” Wilkinson wrote.
     “Nowhere in FOIA did Congress contemplate government sitting on its hands for months at a time and doing nothing,” he added. “The time has come for Coleman to receive resolution of his request of February 29, 2008. … On remand, the district court shall give due weight to the cumulative delays that have transpired in this case and to the importance of transparency in government.”

%d bloggers like this: