The Department of Justice has asked a federal court to dismiss a Freedom of Information Act lawsuit seeking records of alleged communications between Drug Enforcement Administration officials and legalization opponents about marijuana rescheduling.
In a motion filed last Friday in U.S. District Court for the District of Columbia, DOJ attorneys argued that Texas attorney Matthew Zorn’s lawsuit is premature since he hasn’t exhausted administrative remedies and lacks standing to bring claims under the Administrative Procedure Act.
“Plaintiff has not suffered a concrete and particularized, actual or imminent injury in fact,” the government’s motion stated. “His status as an attorney representing clients in an administrative proceeding does not imbue him with Article III standing personally.”
The dispute centers on a FOIA request Zorn filed seeking DEA emails containing keywords related to marijuana rescheduling and Smart Approaches to Marijuana (SAM), an anti-legalization group. The request came after SAM’s president Kevin Sabet claimed insider knowledge about DEA’s position on rescheduling before it was public.
According to court documents, when these concerns were raised in administrative proceedings, DEA attorneys specified that SAM hadn’t had improper contact with “DEA counsel of record” but remained silent about potential communications with other agency officials.
The DOJ’s motion to dismiss argues that Zorn’s revised FOIA request – seeking emails only from DEA employees involved in alleged ex parte contacts – remains overly burdensome and fails to reasonably describe the records sought.
“DEA’s FOIA Office is unaware (and could not feasibly become aware) of whether anyone engaged in the ex parte contacts that Plaintiff references,” a DEA declaration states.
A DEA administrative law judge recently halted hearings over the allegations, though the DEA and SAM have denied any inappropriate contact.
Attorney Shane Pennington, who is spearheading that effort alongside Zorn and others, told Green Market Report that “if we went into the hearing as things are now, without any intervention, it was going to be trouble for a number of reasons, the main one being that the DEA has been working behind the scenes with these prohibitionist parties.”
The DEA is facing another FOIA challenge from government watchdog group Protect the People’s Trust, which sued HHS in January seeking communications between DOJ and HHS officials about the rescheduling recommendation. Derek Maltz, who has previously opposed marijuana reform, also became the DEA’s acting administrator last month.
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