Higher Ed Nonprofit Ducks Federal Subpoena

     (CN) – A federal judge refused to enforce a subpoena against an education nonprofit that the government suspected of improper talks with a former official with the Department of Education.
     Robert Shireman founded the Institute for College Access and Success, an independent nonprofit based in Oakland, Calif., in 2004. Relying on grants, charities and donors, the institute uses research, public education and lobbying to make higher education accessible to all.
     Shireman spent several months as a consultant to the secretary of the U.S. Department of Education in early 2009 and then became deputy undersecretary, at which point he stepped down as president of the institute.
     Months after Shireman stopped working for the department in February 2011, Citizens for Responsibility and Ethics in Washington filed a complaint under the Freedom of Information Act, seeking information on Shireman’s meetings with his successor, Deputy Undersecretary James Kvaal.
     CREW claimed that Shireman “led the agency’s regulatory effort of the for-profit education industry, and questions were raised about his potential conflicts of interest because of his former involvement with a nonprofit education entity.”
     The Education Department’s Office of the Inspector General (ED OIG) opened an investigation into whether Shireman violated federal ethics law by communicating with his nonprofit and using his email account at the institute during his government appointment between February 2009 and 2011.
     Education Department investigators served a subpoena duces tecum on the institute by mail in June 2012, demanding it produce any and all documentation of relevant correspondence, “negotiated rulemaking,” and an April 2010 student loan repayment meeting.
     In a July 2012 email to Special Agent Lisa Foster, the institute said it objected on nine grounds but was reviewing its systems to see what it would voluntarily produce.
     Although the institute provided files related to the April meeting the next month, the government petitioned to enforce the subpoena on Feb. 5.
     U.S. Magistrate Judge Alan Kay denied the motion Friday, calling the feds’ second request “so unmanageably broad as to render its results irrelevant to the investigation’s goals.”
     “These broad search terms are so sweeping that they go beyond contact with TICAS and Mr. Shireman and they can only be categorized as a fishing expedition unlikely to yield relevant information to the investigation,” Kay added.
     The government also conveyed “conflicting messages” about the voluntary nature of the subpoena, according to the 10-page ruling.
     “First, at the hearing, the government described the conversation between Special Agent Foster and TICAS counsel, stating that ‘[TICAS] could treat [the subpoena] as voluntary for now, and if they did not comply, then it would become mandatory,'” Kay wrote, abbreviating the institute’s name. “The government’s request was either a voluntary, unenforceable request for assistance or a mandatory demand for production, but it could not be both. The government failed to offer legal authority as to how the subpoena could convert from voluntary to mandatory.”
     The ED OIG lacks authority to enforce a subpoena against a private entity under the Inspector General Act of 1978 “given that TICAS has no financial, contractual, or programmatic connection with the federal government,” Kay added.

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