It has been roughly 1,900 exhausting days since John Coleman, a researcher and author, filed his Freedom of Information Act (“FOIA”) request with the Drug Enforcement Agency (“DEA”). Under FOIA, departments have twenty days to respond to requests, plus a ten day extension for cause.
Coleman is still waiting. And after 1,900 or so days, he may still have to pay for the photocopies.
Coleman filed his initial request in February 2008, seeking information concerning the government’s regulation of the drug carisoprodol (a muscle relaxant also known as Soma). Carisoprodol became a Schedule IV controlled substance in 2011.
His initial request was met with ... nothing. One year, four months, and ten days after he filed his request, the DEA denied it because his promise to pay up to $1,000 would be insufficient to cover the cost of the search, review, and duplication. The DEA classified Coleman as a commercial requester and determined the cost to be $1,780.75, with $1640 due as prepayment to begin the search.
Coleman appealed to the Office of Information Policy, arguing that he was not a commercial requester, as he was a researcher and author who had published numerous scholarly articles and books on similar topics and because this information was being sought for a non-commercial purpose. He then requested a fee waiver, both because of his non-commercial status and because of the DEA's delays.
The OIP had twenty days to respond. They did. Seven months and eleven days later. The OIP agreed that the DEA didn't follow protocol, but they remanded the case to the DEA anyway. Coleman refiled his request (though he was not required to) and waited four months before filing this lawsuit.
The DEA finally acted on his request one day before answering the lawsuit. They denied him again, citing his affiliations with a for-profit pharmaceutical consulting firm and past relationships with drug manufacturers.
The District Court dismissed Coleman's lawsuit, finding that he failed to exhaust his administrative remedies, both because he didn't formally request a fee waiver until December 2010 and because he refused to pay the FOIA fees before filing the lawsuit.
The Fourth Circuit begs to differ. They began by pointing out that Coleman was free to commence litigation back in 2008, when the DEA passed the twenty-day mark. Ditto for the OIP's delay on the appeal. However, their eventual responses precluded suit. (Sue early, sue often.)
But much like Britney, we think they did it again. (Yes. Lame 2000 reference!) Whether on remand from the OIP or in response to Coleman's resubmitted request in 2010, the DEA again had twenty days to respond. They didn't before Coleman sued, four months later. Coleman, and his administrative remedies, are exhausted.
What about the lower court's prepayment prerequisite to filing in court? The FOIA has no such requirement.
John Coleman exhausted his remedies and properly filed his suit. What's left? On remand, there is still that issue of commercial v. noncommercial status and the $1,780.75 in estimated costs.