The nonprofit organization Students for Sensible Drug Policy announced late last week it has filed a lawsuit against the Department of Education alleging that the department is refusing to release state-by-state data on the number of students affected by a law barring them from receiving financial aid because they have a drug conviction unless SSDP pays a hefty fee for the service. The student group wants information about the impact of the Higher Education Act's (HEA) drug provision, authored by arch-drug warrior Rep. Mark Souder (R-IN), and in effect since 2000. SSDP is part of a large coalition of student, academic, professional, and civil rights organizations seeking to repeal the provision. (The coalition won a partial victory in their campaign to repeal the provision Wednesday when Congress voted to restrict the aid denial to students whose offense took place while they were enrolled in school and receiving aid. See related story this issue.)
Using FOIA, SSDP requested a state-by-state breakdown of the number of students affected by the drug provision, but the Department of Education has refused to waive the fee for the information search. In rejecting the fee waiver request, the department made some extraordinary claims, and it is the department's strange reasoning that has resulted in the lawsuit.
In denying SSDP's appeal of its decision not to waive the fees -- more than $4,200 -- the Department of Education argued that SSDP had not "asserted the intent, much less demonstrated the ability, to disseminate such information in a way that will contribute meaningfully or significant to the general public's understanding" of the policy issue. According to departmental FOIA officer Michell Clark, who authored the denial, the state-by-state information about how many people were denied aid would not contribute to public understanding of the issue because it would not include the number of people who had failed to answer the student financial aid questionnaire at all -- an unknowable number.
But Clark didn't stop there. She instead asserted that SSDP should be denied the fee waiver because it stood to profit from drug legalization. Her reasoning is worth quoting at length: "A review of the contents of SSDP's web site, and the materials you submitted in connection with your fee waiver request, reveal that the principal goal of your organization is to 'end the war on drugs,'" Clark wrote. "As SSDP's campaign could directly benefit those who would profit from the deregulation or legalization or drugs, I cannot conclude, based on the information before me, that SSDP has no commercial interest in the disclosure sought."
"It's no big surprise that the government is afraid to reveal the true impact of its punitive drug war policies," said outgoing SSDP executive director Scarlett Swerdlow. "If citizens and legislators knew how this misguided and ineffective policy impacts their communities, we would be much closer to erasing it from the law books. Blocking college access to thousands of would-be students only makes our nation's drug problems worse."
"We're just trying to get a state-by-state breakdown of who has been affected by the drug provision," said SSDP campaigns director Tom Angell. "When we go to Capitol Hill and talk to legislators about this issue, they naturally want to know how it affects their states, and we don't have that information. The Department of Education is trying to stifle us to the best of their ability," he told DRCNet.
The attitude of the department is indicative of the Bush administration's overall stance on its drug policies, said Angell. "This is part of a larger effort on the part of the administration and the federal government to hide the effects of the drug war, to put up a curtain to hide what they are doing. As students, we are trying to find out how these policies affect us, and the federal government doesn't want us to even get that information."
At a dead end with the Department of Education, SSDP turned to the only avenue left to it: legal action. The group made contact with the national nonprofit consumer advocacy group Public Citizen, which has frequently challenged the government on accountability issues. Public Citizen attorney Adina Rosenbaum, a FOIA specialist, took on the case.
"We do a lot of work on open government and government transparency, and we think this is an important case about the ability of public interest groups to get fee waivers," said Rosenbaum. "Under FOIA, requesters are supposed to get fee waivers if the request would contribute significantly to public understanding of government operations and is not being done to advance commercial interests. We took this case because we think that SSDP met that standard," she told DRCNet. "This is important not just for SSDP, but for other public interest groups making requests for accountability," she said.
"The Department of Education argued first that revealing this information would not help public understanding of the issue, but I think this is clearly information that would help people understand the impact of this government program," Rosenbaum continued. "And the fact that the department could not find that this was not predominantly in SSDP's commercial interest is very troubling because, as a nonprofit, SSDP does not have a commercial interest. The commercial interest they cited was something very attenuated, some unnamed person who may or may not benefit if drugs are regulated. That is not a good reason to deny the fee waiver," she said. "By this logic, it is difficult to imagine who would not have a commercial interest in any given request."
SSDP and Public Citizen weren't the only ones having problems with the department's reasoning. "This decision by the Department of Education sounds very imaginative. I guess that's the polite way to put it," said Steven Aftergood of the Federation of American Scientists' Project on Government Secrecy, which has long experience dealing with FOIA requests. "Another way to put it is that it sounds completely spurious. SSDP is not an entity poised to go into the drug dealing business, thus there will be no evidence to support that claim," he told DRCNet.
"The decision to deny the waiver should be firmly appealed," said Aftergood. "It sounds like an abuse of the fee waiver provisions to avoid responding to the request, and the fee Education is demanding is prohibitively high for a nonprofit organization."
The Department of Education was tight-lipped, but sticking to its guns this week. "We haven't been served and we can't comment on the suit itself," said department spokesperson Stephanie Babyak. "The department refused to grant the fee waiver because this organization failed to demonstrate that its request was in the public interest (in that it was likely to contribute significantly to public understanding of the operations or activities of the government), and that it was not primarily in the commercial interest of SSDP," she told DRCNet via email.
"Also and you probably know this, in 1998 Congress decided that they didn't want federal taxpayer-funded student aid going to students convicted of drug offenses," Babyak volunteered unbidden.
Merely because the Department of Education may disagree with the policy goals of SSDP is not a reason to deny a fee waiver, Aftergood said. "The political orientation of the FOIA requester should play precisely zero role," he said. "The language of the act says that any person may request records, and it's not limited to any person who holds a certain policy position. While the department may be suggesting that SSDP is an interested party because it wants to sell legalized drugs, as a nonprofit, the group is legally incapable of doing that."
The government now has 30 days to respond to SSDP's initial filing. SSDP's Angell held out some hope the issue can be resolved favorably without having to go to court. "I think we have a very strong case. It is the FOIA administrator's job to try to stifle organizations like us and make us give up our quest for public information. It does cost the department time and money to compile this data, but it also costs to defend a case like this," he said. "I wouldn't be surprised if they ended up biting the bullet and just giving us the information now."
Time will tell about that. While many FOIA requests -- the number now exceeds three million a year -- are processed without problems, requesters can face both recalcitrant individuals and a federal government hyper-focused on secrecy, said Aftergood. "Many FOIA requests are processed in good faith, but in some cases one runs into an agency or an officer who has a bad attitude," he said. "There has also been a distinct tightening up in many areas of government information. There are many categories of documents no longer released to the public, and documents that were once available on government web sites have been withdrawn. When it comes to federal government information policy, we are living in a climate of growing official secrecy."