Higher Ed Nonprofit Loses Subpoena Protest

(CN) - An education nonprofit must face a subpoena as to its communications with a high-ranking government official, a federal judge ruled.

Relying on grants, charities and donors, the Institute for College Access and Success uses research, public education and lobbying in hopes of making higher education accessible to all.

Founded by Robert Shireman in 2004, the Oakland, Calif.-based nonprofit advocates for the reform of student-loan law and promotes public awareness for students and families.

Shireman stepped down as president, however, after he became deputy undersecretary of the U.S. Department of Education, having worked as a consultant to the secretary in early 2009.

Citizens for Responsibility and Ethics in Washington filed a complaint under the Freedom of Information Act against Shireman months after he stopped working for the department in February 2011, seeking information on his meetings with his successor.

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) then began investigating whether Shireman had violated federal ethics law while serving the government.

In a June 2012 subpoena the department demanded that the insititute produce any and all documentation of correspondence with Shireman between February 2009 and 2011, "negotiated rulemaking," and an April 2010 student-loan repayment meeting.

Though the institute complied with the third request, it objected to the first two and told the Inspector General that it would not comply with the subpoena.

The feds petitioned for summary enforcement last year, but U.S. Magistrate Judge Alan Kay found in July that the inspector general lacked authority to subpoena to a private nonprofit. That ruling called the second request "so unmanageably broad as to render its results irrelevant to the investigation's goals."

In response to the government's objections, U.S. District Judge Amy Berman Jackson granted the petition and said the magistrate judge's ruling was "contrary to law and clearly erroneous."

"Here, it is undisputed that OIG has authority to investigate Shireman's conduct during his employment at the Department, and the three requests all relate to that lawful investigation," Jackson wrote. "So it does not matter whether [The Institute for College Access and Success] TICAS is a government contractor or if it receives federal funds because it is simply a third party being called upon to provide information needed to advance a lawful OIG inquiry into someone else."

The inspector general has a statutorily assigned duty to find out whether Education Department employees violated federal ethics laws, according to the ruling.

"The documents subpoenaed from TICAS relate directly to that inquiry," Jackson wrote. "The subpoena therefore fits within the plain language of OIG's statutory authority."

The government's narrowed second request is satisfactory, the ruling states.

"Contrary to TICAS's suggestion, the second request no longer requires production of any document with the words 'negotiated rulemaking' and the name of any Department employee; it requires production of any document with the words 'negotiated rulemaking' and the name 'Robert Shireman,'" Jackson wrote (emphasis in original). "Those documents requested are plainly relevant to the ongoing investigation. Thus, the court finds that the conclusion that the second request was an impermissible 'fishing expedition' is clearly erroneous."

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