DEA bulk telephone metadata database Sept 2013 termination memo

Shawn Musgrave filed this request with the Drug Enforcement Administration of the United States of America.
Tracking # AP-2015-05406, DOJ-AP-2016-005437
Est. Completion None
Status
Awaiting Appeal

Communications

From: Shawn Musgrave

To Whom It May Concern:

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

The order, memorandum or other document ordering the termination/suspension of the telecommunication metadata database revealed in filings by the DEA in US v. Hassanshahi. Per an affidavit submitted by DEA Assistant Special Agent in Charge Robert Patterson, this database was suspended in September 2013.

A copy of this affidavit can be found here: https://ia802702.us.archive.org/24/items/gov.uscourts.dcd.162295/gov.uscourts.dcd.162295.49.1.pdf

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

From: Drug Enforcement Administration

An acknowledgement letter, stating the request is being processed.

From: Drug Enforcement Administration

An interim response, stating the request is being processed.

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Jan. 23, 2015. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #15-00261-F.

Thank you for your help.

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Jan. 23, 2015. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #F-00261-F.

Thank you for your help.

From: Drug Enforcement Administration

An interim response, stating the request has been delayed

From: Shawn Musgrave

Hello,

Thank you for acknowledging my request. Please confirm that I have been categorized as a media requester for the purpose of fees for this request.

Best,
Shawn Musgrave
Investigative reporter and editor, MuckRock

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Jan. 23, 2015. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #15-00261-F.

Thank you for your help.

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Jan. 23, 2015. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #15-00261-F.

Thank you for your help.

From: Drug Enforcement Administration

The request has been rejected, with the agency stating that the information or document(s) requested are exempt from disclosure.

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Jan. 23, 2015. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #15-00261-F.

Thank you for your help.

From: Shawn Musgrave

Director, Office of Information Police (OIP)
US Department of Justice
1425 New York Ave, NW, Suite 11050
Washington, DC 20530-0001

To Whom It May Concern:

This is an appeal for the rejection of FOIA 15-00261-F by the Drug Enforcement Administration.

On 01/23/2015, I requested the following document:

"The order, memorandum or other document ordering the termination/suspension of the telecommunication metadata database revealed in filings by the DEA in US v. Hassanshahi."

In a response dated July 27, 2015 (attached), the DEA responded that the Office of Chief Counsel, the El Paso Intelligence Center, and the Special Operation Division had found no responsive records. The letter also indicated that the Intelligence Division had found two pages of responsive documents but was withholding them in full.

Per an affidavit submitted by DEA Assistant Special Agent in Charge Robert Patterson, the database in question was suspended in September 2013 (see https://ia802702.us.archive.org/24/items/gov.uscourts.dcd.162295/gov.uscourts.dcd.162295.49.1.pdf):

"Use of the [redacted] database [...] was suspended in September 2013. The database [redacted] is no longer being queried for investigatory purposes, and information is no longer being collected in bulk pursuant to 21 U.S.C. Section 876."

The matter of this program's suspension has been covered extensively. Such a suspension could not have happened without an order such as the document requested herein. As such, to the extent that the DEA claims that several components were unable to find responsive records, I request that you remand this request for a good faith search and provision of documents in keeping with government agencies' obligations under the FOIA.

To the extent that the DEA's Intelligence Division has withheld two pages of responsive documents in full, I also appeal. Foremost, the DEA has failed to explain fully how the invoked exemptions obligate the agency to withhold the documents in full rather than releasing them in part. In the attached response letter, the DEA indicates that these pages were withheld under exemption b(5) and a handful of provisions of b(7), the law enforcement exemption, but do not specify how these exemptions are relevant to the present request are the documents located by the DEA's Intelligence Division.

Neither of the invoked exemptions applies to the document requested herein. The b(5) exemption protects documents that are deliberative, whereas the present request is for a policy order. The b(5) exemption has been determined in litigation not to apply to documents that enshrine final policy decisions. Any "pre-decisional" contents of the withheld documents may be withholdable under b(5), but these portions may be redacted. The b(5) exemption does not justify withholding these documents in their entirety.

The law enforcement exemptions, in turn, are meant to protect sensitive law enforcement techniques, procedures or investigations. The present request is for a policy order pertaining to a DEA program that is already publicly known. As such, the b(7) exemptions do not allow the DEA blanket cover to withhold documents regarding this program. Furthermore, any portions of requested documents that are exempt under the b(7) exemptions can be redacted in part.

In light of the above, I ask that you remand this request back to the DEA for a good faith search for all responsive documents and provision of responsive records in keeping with the DEA's FOIA obligations. Furthermore, I ask that you review the DEA's withholding in full of two pages from the Intelligence Division, and for an order to release the documents in part even if portions must be redacted.

Finally, I appeal my designation as an "all other" requester for the purpose of fees. As indicated in my original request letter, I have a considerable publication history on matters involving federal law enforcement, emerging technologies, and surveillance. I submitted this request in my capacity as a journalist who is preparing material for publication. As such, the DEA inappropriately classified me as an "all other" requester. Please order the DEA to correct my classification to reflect the bare fact that I am a reporter.

Respectfully,

Shawn Musgrave
MuckRock

From: OIP-NoReply

Please do not reply to this e-mail, as this account is not monitored. To ensure a prompt reply, please direct any inquiries to the contact information listed in the correspondence provided to you. Thank you.

From: OIP-NoReply@usdoj.gov

DOJ-AP-2015-000671 has been processed with the following final disposition: Partially affirmed & partially reversed/remanded -- Other -- Agency Performed Adequate Search.

From: Drug Enforcement Administration

A copy of documents responsive to the request.

From: Shawn Musgrave

To Whom It May Concern:

I hereby appeal the withholding of one of the two documents in response to my long-outstanding FOIA request, which the DEA assigned tracking number 15-00261-F.

On 01/23/2015, I requested the following document:

"The order, memorandum or other document ordering the termination/suspension of the telecommunication metadata database revealed in filings by the DEA in US v. Hassanshahi."

In a response dated July 27, 2015, the DEA responded that the Office of Chief Counsel, the El Paso Intelligence Center, and the Special Operation Division had found no responsive records. The letter also indicated that the Intelligence Division had found two pages of responsive documents but was withholding them in full.

Per the latest response dated July 19, 2016, the DEA has provided one heavily redacted page from the Intelligence Division, and withheld a second page in full.

As I wrote in my first appeal a year ago, the matter of this program's suspension has been covered extensively. To the extent that the DEA's Intelligence Division has withheld the second page of responsive documents in full, I once more appeal, as well as the extensive redaction of more than half the first page.

Foremost, the DEA — even under a subsequent search and (presumably) review by the Office of Information Policy — has failed to articulate fully or with specificity how the invoked exemptions obligate the agency to withhold the second page in full rather than releasing it in part as it has the first page. The DEA and OIP jointly indicate that these page is withheld under three provisions of exemption b(7), the law enforcement exemption, but do not specify how these exemptions are relevant to the document located by the DEA's Intelligence Division.

Rather, as is the Department of Justice's way, an attached boilerplate checklist and a reference to the DEA's FOIA regulations in the Federal Register together purport to satisfy the specificity requirement. This is unacceptable under both the spirit and letter of the FOIA, particularly to withhold a document in full rather than to redact it in part.

In light of the above, I ask that you remand this request back to the DEA for a good faith search for all responsive documents and provision of responsive records in keeping with the DEA's FOIA obligations. Furthermore, I ask that you review both the redaction of the first page as well as the withholding in full of the second page from the Intelligence Division, and for an order to release the documents in part even if portions must be redacted.

Respectfully,
Shawn Musgrave

From: OIP-NoReply@usdoj.gov

09/20/2016 02:37 PM FOIA Request: DOJ-AP-2016-005437

From: OIP-NoReply@usdoj.gov

DOJ-AP-2016-005437 has been processed with the following final disposition: Completely reversed/remanded.

  • Musgrave, Shawn, AP-2016-005437 DEA.remand.further.processing

From: DEA.FOIA

Good Evening Mr. Musgrave:

Please see the attached signed Determination Appeal REMAND (Appeal Case Number 16-00160-AP) FOIA Case Number 15-00261-F with documents for your FOIA request you submitted to our the Office of Information Policy (OIP) office on June 05, 2017. If you have any question please feel free to contact the GIS Specialist listed on your letter or call the main line number below.

Respectfully yours,
Jewell Carroll
Program Specialist
Freedom of Information/Privacy Act Unit (SARF)
(Desk) 202-307-4006; (fax) 202-307-8556
FOIA/PA Main Phone Line 202-307-7596

  • Signed APPEAL REMAND DETERMINATION LETTER for the FOIA Case Number 15-

From: Shawn Musgrave

To Whom It May Concern:

This is my third appeal for the withholding of extensive portions of a policy document in response to my long-outstanding FOIA request, which the DEA assigned tracking numbers 15-00261-F, 15-00116-AP and 16-00160-AP, and which the Office of Information Policy has subsequently assigned appeal tracking numbers DOJ-AP-2015-000671 and DOJ-AP-2016-005437.

Once again, we find ourselves facing inadequate and broad invocation of exemptions without the requisite specificity or narrow application as required under the FOIA statute, case law and spirit of the law.

Please note that the below appeal is nearly identical to my second appeal. This is because the DEA, upon two remands now by the Office of Information Policy, has barely changed its own practice. The DEA indeed seems to be mining for comedy gold in this case in making the only alterations to the FIRST page of provided documents, whereas the bulk of my second appeal was as to the DEA's slapdash and unduly broad redactions as to the SECOND page.

Since the DEA has not seen fit to alter its own practices in any substantive fashion, I have accordingly altered the below appeal only modestly to reflect that we are now a year older and that much closer to death by unduly broad redactions. I respectfully request that the OIP remand this request AGAIN to the DEA with appropriate guidance as to the requirements for that agency to adequately substantiate with particularity the justification for withholding an entire page of a memorandum written in the wake of a highly publicized legal decision and which altered significantly a government program of considerable interest to the public.

Here we go.

On 01/23/2015, I requested the following document:

"The order, memorandum or other document ordering the termination/suspension of the telecommunication metadata database revealed in filings by the DEA in US v. Hassanshahi."

In a response dated July 27, 2015, the DEA responded that the Office of Chief Counsel, the El Paso Intelligence Center, and the Special Operation Division had found no responsive records. The letter also indicated that the Intelligence Division had found two pages of responsive documents but was withholding them in full.

Per a response dated July 19, 2016, the DEA has provided one heavily redacted page from the Intelligence Division, and withheld a second page in full.

As I wrote in both of my appeals — the first dated August 2015 and the second September 2016 — the matter of this program's suspension has been covered extensively. To the extent that the DEA's Intelligence Division has withheld the second page of responsive documents in full, I now appeal for a second time, as well as the extensive redaction of more than half of the first page. [To give the DEA credit, in its latest production the agency has removed redactions on approximately 1.5 sentences on the first page.]

Foremost, the DEA — even under its second subsequent search — has failed to articulate fully or with specificity how the invoked exemptions obligate the agency to withhold the second page in full rather than releasing it in part as it has the first page. The DEA indicates that this page is withheld under four provisions of exemption b(7), the law enforcement exemption, but do not specify how these exemptions are relevant to the document located by the DEA's Intelligence Division.

Rather, as is the Department of Justice's way, an attached boilerplate checklist and a reference to the DEA's FOIA regulations in the Federal Register together purport to satisfy the specificity requirement. This is unacceptable under both the spirit and letter of the FOIA, particularly to withhold a document in full rather than to redact it in part.

In light of the above, I ask that you remand this request — once again — back to the DEA for a good faith search for all responsive documents and provision of responsive records in keeping with the DEA's FOIA obligations. Furthermore, I ask that you review both the redaction of the first page as well as the withholding in full of the second page from the Intelligence Division, and that an order be issued release the documents in part even if portions must be redacted.

Thrice respectfully,
Shawn Musgrave

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