Program 1033 transfers nationwide 2000 to 2014

To Whom It May Concern:

This is an EXPEDITED request under the Freedom of Information Act. I hereby request the following records:

The database of all equipment transfers via the 1033 program, including receiving agency, since 2000 or as far back as the database is maintained. To be clear, this is a request for export of the 1033 program database in native format including all fields going back to January 1, 2000, or as far back as the database is maintained.

This is an EXPEDITED FOIA request in light of the considerable media coverage of the 1033 program in light of the ongoing situation in Ferguson, MO. In support of my request for EXPEDITED processing, please note the intense public and Congressional interest in the 1033 program, as evidenced by considerable media coverage as well as the introduction of at least one bill to modify the 1033 program.

In further support of my request for expedited processing, please note that I am a journalist with considerable experience covering law enforcement, and specifically law enforcement equipment. My ongoing series on unmanned aerial vehicles (motherboard.vice.com/tag/The+Drone+Census) has garnered nationwide attention for my thorough examination of UAVs as acquired by government agencies across the country. Via MuckRock and extensive freelance relationships, I have a number of outlets for the dissemination of not only the data I request above, but also unique media content that employs editorial skill to distill complex governance matters to a wide audience.

I also request that, if appropriate, fees be waived as I believe this request is in the public interest. The requested documents will be made available to the general public free of charge as part of the public information service at MuckRock.com, processed by a representative of the news media/press and is made in the process of news gathering and not for commercial usage.

In the event that fees cannot be waived, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires.

Sincerely,

Shawn Musgrave

Hello,

Please note that this is an EXPEDITED request for government data under the Freedom of Information Act. Please confirm receipt immediately.

Thank you,
Shawn

Please acknowledge this expedited FOIA request, and provide an update as to its status.

Best,
Shawn

Apologies for not getting back to you sooner -- please let me know when a good time to call would be for Friday? Also, please clarify whether my request for expedited processing has been granted.

Best,
Shawn

Ms. Mansfield -

Apologies that we did not get a chance to speak Friday. When in the next couple of days would work to discuss this request?

Additionally, I have yet to receive any response to my request for expedited processing of this request. Please advise.

Best,
Shawn

Ms. Mansfield -

I concur to the revision above, and emphasize that I am requesting the standard pull for all equipment transfers down to the agency level, including both general and tactical equipment.

Best,
Shawn

Judith -

I have yet to receive a formal response as to my request for the full inventory of equipment. Please advise as to status?

-Shawn

General Counsel, Defense Logistics Agency, ATTN: DGA
Suite 1644
8725 John J. Kingman Road
Fort Belvoir, Virginia 22060-6221

November 21, 2014

To Whom It May Concern:

This is an appeal for the partial denial of FOIA request DRMS-14-MFOI-00040, in which I requested the LESO standard data pull, Active Inventory List for all participating US States and US Territories with regard to equipment transferred from the Department of Defense to law enforcement via the 1033 program. Via the attached letter dated September 30, 2014, the Defense Logistics Agency denied my request with regard to tactical items at the Law Enforcement Agency (LEA) level.

To justify this withholding, Col. Michael Cannon of the Defense Logistics Agency, Disposition Services cites FOIA exemption 7(f), which protects “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information [...] (F) could reasonably be expected to endanger the life or physical safety of any individual.”

Foremost, the attached rejection letter fails to acknowledge that all of exemption 7 covers "records or information compiled for law enforcement purposes." The requested data pertains to administrative matters — particularly, equipment transferred from one branch of government to another, and in many cases from the federal government to agencies at the state and local levels. It is not clear that the requested data was "compiled for law enforcement purposes," given its fundamental administrative nature. As such, the notably short rejection letter sent by DLA Disposition Services fails to meet its obligation to adequately justify the withholding of data that is presumed to be open to public accountability unless otherwise protected specifically by statute. The DLA Disposition Services FOIA staff has not established a clear relation between law enforcement exemption 7 overall and the requested data as a preliminary matter given the nature of the requested data.

As noted in the Department of Justice Guide to the Freedom of Information Act (see http://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/exemption7f.pdf), exemption 7(f) most typically protects the identities of law enforcement personnel or persons connected to law enforcement matters. Even presuming that any of the law enforcement exemptions address the requested data, exemption 7(f) has a much more strained relation given that the requested data includes no names of individuals, but rather pertains to equipment transferred to police departments, sheriff's offices and other law enforcement agencies nationwide.

Furthermore, the Justice Department guide notes that courts consistently "require agency declarations to provide an adequate justification for the withholding" under exemption 7(f). The Second Circuit Court of Appeals determined that, "in order to justify withholding documents under exemption 7(F), an agency must identify at least one individual with reasonable specificity and establish that disclosure of the documents could reasonably be expected to endanger that individual." The DLA Disposition Services rejection letter provided no such justification as to how the requested data might reasonably be expected to endanger any life, and certainly failed to identify any such individual (or even a broad group) whose life or safety might be endangered by such a release.

It is dubious that any such justification could even be made that the requested data could "reasonably be expected" to endanger life or safety of any individuals. Foremost, such individuals and agencies that receive the equipment summarized in the requested data routinely report such acquisitions in annual reports or disclosures to legislative oversight bodies, documents which are themselves subject to disclosure under public records statutes. Many individual departments even flaunt or otherwise broadcast off their acquisitions from the 1033 program via social media, department newsletters and community events where the public is invited to view the tactical vehicles or other equipment received via the program. Such proactive disclosures by the recipient police departments themselves considerably undercut any claim to reasonable expectation of the requested data to endanger safety of these departments' officers.

Furthermore, a total of 37 states so far have released to me the requested data down to the individual agency level. A handful of states have even posted online such spreadsheets as are requested here. See, for example, the website of the California Office of Emergency Services, which coordinates the 1033 program in California: http://www.calema.ca.gov/publicsafetyandvictimservices/pages/about-the-1033-program.aspx

Such disclosures by an overwhelming majority of the state coordinators of the 1033 program as well as by the individual departments that receive such equipment distributed by the program critically undercut any arguments that releasing such transfer data might "reasonably" be expected to endanger lives, as is the standard under exemption 7(f).

Beyond the inapplicability of exemption 7(f) to the requested data, I point to the nationwide calls for accountability from the public as well as elected officials regarding the 1033 program: A coalition of civil rights and public service organizations have called for a moratorium of the program (see http://www.naacpldf.org/press-release/civil-rights-groups-ask-moratorium-defense-1033-program-transferring-weapons), and at least one federal bill has been introduced to prohibit transfers of certain tactical equipment (see https://www.congress.gov/bill/113th-congress/house-bill/5478).

There cannot be thorough consideration, scrutiny or weighing of the merits and pitfalls of the 1033 program without transparency as to the particular law enforcement agencies that received tactical equipment. As such, I respectfully request that this FOIA request be remanded to DLA Disposition Services for a full release of the 1033 program transfer inventory for both general and tactical equipment.

Sincerely,

Shawn Musgrave
MuckRock

Hello,

A copy of the appeal below has been sent to the appropriate address, along with the attached partial rejection letter. Please confirm receipt of both copies.

Best,
Shawn Musgrave
MuckRock