The U.S. Department of Health and Human Services (HHS) has drawn criticism for heavily redacting a recommendation letter to the U.S. Drug Enforcement Administration (DEA) concerning the rescheduling of cannabis. HHS said the redactions were justified under Exemption 5 of the Freedom of Information Act (FOIA), which protects inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency. As Stephen C. Piepgrass, Agustin E. Rodriguez, Jean Smith-Gonnell, and Cole White noted in a recent article published by Law360, this has sparked debates about the balance between necessary secrecy and the public’s right to government information. Legal challenges to these redactions are expected. The deliberative process privilege, which safeguards deliberative discussions within government corridors, is often invoked in the context of FOIA.

A lawsuit filed against HHS in the U.S. District Court for the District of Columbia, Matthew Zorn v. U.S. Health and Human Services, challenges HHS’ redactions to the recommendation letter. The lawsuit claims that HHS failed to provide the rescheduling letter in response to a FOIA request and failed to make timely determinations regarding the request itself as well as a request for expedited treatment. The court’s ruling on this case will either reinforce the veil of administrative deliberations or peel back layers, significantly affecting how the legal community interprets and responds to shifts in federal policy and enforcement. We’ll continue to follow this case and its ramifications.

Our Cannabis Practice provides advice on issues related to applicable federal and state law. Marijuana remains an illegal controlled substance under federal law.