ATA Upset Feds Withholding Hair-Testing Deliberations
This story appears in the April 20 print edition of Transport Topics.
American Trucking Associations said the federal government has failed to comply with a freedom of information request for transcripts of deliberations about the use of hair testing to detect drug use in truck drivers.
It is not “credible” that all the information being withheld is protected under the federal Freedom of Information Act, ATA said in an appeal to the Substance Abuse and Mental Health Services Administration for meeting transcripts.
Rather than making “a good faith effort” to separate what is justly protected under FOIA and what ought to be public, “SAMHSA took the easier, but unlawful, approach of indiscriminately redacting nearly everything” about hair testing deliberations by the agency’s drug-testing advisory board, ATA said.
ATA has been pressing federal agencies and Congress to allow carriers to do hair testing in lieu of the federally mandated urinalysis.
Some of the nation’s largest carriers have for years been conducting hair tests. They have said the method is superior to urine testing in detecting drug use and that carriers should not have to do both tests.
ATA filed an initial FOIA request in 2013 asking SAMHSA, — housed in the Department of Health and Human Services — for drug advisory board transcripts dating to 2011.
The board has been studying hair testing with scientists and experts at other government agencies. including the White House Office of National Drug Control Policy.
In its answer to the FOIA request, SAMHSA in March sent ATA 1,500 pages of transcripts. Transport Topics obtained the transcripts, but most were totally redacted and others had only witness names, remarks about board travel and lunch schedules.
In a letter accompanying the material, SAMHSA invoked the “deliberative process privilege” in FOIA, which allows agencies to withhold deliberations that take place prior to a recommendation or regulation.
Under FOIA, however, if a petitioner is not satisfied with what a request for information yields, the petitioner can appeal.
In its appeal letter, ATA noted that President Obama in 2009 “strongly” encouraged federal agencies to disclose information whenever possible.
“We’re not talking about national security secrets,” Dave Osiecki, ATA chief of national advocacy, told TT. “We’re talking about drug testing. We’re talking about a safety issue that [SAMHSA] . . . cares about. They should be facilitating improved testing processes. So our question is, ‘What’s the big deal?’ ”
Henry Jasny, general counsel for the public interest group Advocates for Highway and Auto Safety, said the organization also has queried SAMHSA.
While it did not request transcripts under FOIA, the Advocates asked whether the advisory board is addressing such issues as whether drivers who attend a concert where others are smoking marijuana will test positive, Jasny said.
Likewise, the Advocates asked whether hair testing results will yield false positive findings on the hair of some ethnic groups, he said.
“Do they have a uniform procedure for how they prepare the samples, how the samples are tested and what the minimum is for a positive result?” Jasny said.
“Those are the kinds of questions we’re asking and trying to find out about,” he added.
Jasny said SAMHSA has sent its responses and the Advocates’ staff will begin reviewing them this week.
ATA is supporting a bill introduced in the House and Senate last month that would allow carriers to hair test in place of the required urine testing on driver applicants and for the random drug tests carriers must do annually on drivers.
Jasny said the Advocates have not yet decided whether to support the bill.
