• October 21, 2014

Advocacy Group Must Comply With Subpoena in Ethics Inquiry, Judge Rules

Eight months after a federal magistrate called a subpoena related to a former top official at the U.S. Department of Education a groundless "fishing expedition," a federal judge on Wednesday overturned that decision.

In a 14-page ruling, Judge Amy Berman Jackson of the U.S. District Court here said that the department’s Office of Inspector General had "undisputed" authority to pursue the investigation and that the documents it seeks from an education advocacy group under the subpoena are "plainly relevant to the ongoing investigation."

The subpoena relates to an ethics investigation of Robert M. Shireman and any communications related to federal rule making he may have undertaken with the Institute for College Access and Success, known as Ticas, from 2009 to 2011.

Those years were a time of contentious negotiations and lobbying over rules meant to curb recruiting abuses by for-profit colleges and what would become the first version of the "gainful employment" rule. Ticas, which Mr. Shireman had founded and headed before joining the Obama administration, favored stricter regulations.

Mr. Shireman, who began working for the administration in early 2009 and later became deputy under secretary of education, was seen as the architect of tougher rules. His many critics in the for-profit-college industry (and a few in Congress) have questioned whether he communicated improperly with outside parties as those rules were being formulated.

The investigation by the department’s Office of Inspector General, which seemed to have come to a conclusion in June 2012, was apparently revived after some Republican members of Congress publicly criticized it as telling just "half the story." Ticas was subpoenaed a couple of weeks later but, after providing some of the requested documents, began to fight the subpoena.

'Simply a Third Party'

As Judge Jackson made clear in her ruling on Wednesday, Ticas is not the subject of the investigation, but it cannot assert an exemption from the subpoena by claiming it is not part of the government or a government contractor. "It is simply a third party being called upon to provide information needed to advance a lawful OIG inquiry into someone else," the judge wrote.

In opposing the subpoena, Ticas had argued that the requirement that it turn over emails and other records, some of which involve other parties, would violate its and others’ First Amendment protections. The judge said those free-speech concerns were not enough to thwart the enforcement of the subpoena.

"We’re disappointed in the judge’s ruling and are reviewing the opinion carefully and considering our options," Ticas said in a prepared statement.

Mr. Shireman could not be immediately reached for comment on Wednesday night.

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