Parallel Construction Reviews (Drug Enforcement Administration)

Avinash Samarth filed this request with the Drug Enforcement Administration of the United States of America.
Tracking # 14-00680-F
Status
Rejected

Communications

From: Avinash Samarth

To Whom It May Concern:

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

In August 2013, Reuters reported that the DEA's Special Operations Division distributes tips from NSA surveillances to federal, state, and local law enforcement agents for use in their domestic criminal investigations. See http://www.reuters.com/article/2013/08/05/us-dea-sod-idUSBRE97409R20130805.

Identifying which criminal prosecutions involved those tips is critical to our system of justice. Myriad judges, prosecutors, and defense attorneys have stressed that without knowing whether an investigation involved NSA surveillance, defendants might be shielded from what they are legally entitled to: exculpatory evidence and the opportunity to challenge likely-unconstitutional surveillance deployed in their cases. Id.; see also Brady v. Maryland, 373 U.S. 83, 87 (1963); Klayman v. Obama, No. 13–0881(RJL), 2013 WL 6598728 (D.D.C. Dec. 16, 2013).

Moreover, in failing to disclose this information, the Government circumvents Congress's wish that a defendant be on notice when NSA surveillance is involved in his criminal prosecution. 50 U.S.C. § 1806.

Four methods of sharing intelligence-community information with the DEA are listed in a January 2014 FOIA production by the DEA. The first involves CIPA, the second involves a Supreme Court case from 1938 called "Scher v. United States," the third involves FISA, and the fourth is termed "parallel construction." See January 2014 DEA FOIA Production, https://muckrock.s3.amazonaws.com/foia_files/1-23-14_MR6434_RES_ID13-00541-F_1.pdf.

That FOIA production contains documents noting that: “The Government keeps close records of the use of these techniques to ensure that it can be proved to judges and/or oversight personnel from Congress or the administration that the defendant is was not unlawfully or unconstitutionally disadvantaged by these techniques.” Id. at 33, 114.

I hereby request:

(1) Copies of those "close records";

(2) Records identifying the number of cases in which "parallel construction" was used and classified information was not disclosed to the defendant;

(3) Records identifying the number of cases in which "parallel construction" was used and classified information was disclosed to the defendant;

(4) Records identifying the number of cases in which the CIPA method was used and classified information was not disclosed to the defendant;

(5) Records identifying the number of cases in which the CIPA method was used and classified information was disclosed to the defendant;

(6) Records identifying the number of cases in which Scher v. United States was relied upon to share intelligence-community information with the DEA and that information was not disclosed to the defendant;

(7) Records identifying the number of cases in which Scher v. United States was relied upon to share intelligence-community information with the DEA and that information was disclosed to the defendant.

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,

Avinash Samarth

From: Drug Enforcement Administration

An acknowledgement letter, stating the request is being processed.

From: Drug Enforcement Administration

The request has been rejected, with the agency stating that it can neither confirm nor deny the existence of the requested documents.

From: Avinash Samarth

Director
Office of Information Policy
United States Department of Justice
Suite 11050
1425 New York Avenue, NW
Washington, D.C. 20530-0001

To the Director of the Office of Information Policy:

This is an appeal under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq., concerning the Drug Enforcement Administration’s (“DEA”) response to FOIA request 14-00680-F.

In the request, dated August 21, 2014, I explained that a prior DEA FOIA production released to MuckRock in January 2014 had acknowledged the existence of the documents I was requesting. FOIA Request from Avinash Samarth, MuckRock to DEA (Aug. 21, 2014) [hereinafter “FOIA Request”]. The January DEA FOIA production’s documents described four methods through which the DEA obtains and uses intelligence-community information. See January 2014 DEA FOIA Production at 158, https://muckrock.s3.amazonaws.com/foia_files/1-23-14_MR6434_RES_ID13-00541-F_1.pdf [hereinafter “January FOIA Production”]. Those methods were: (1) “parallel construction”; (2) a method relying upon the Foreign Intelligence Surveillance Act (“FISA”); (3) a method relying upon the Classified Information Procedures Act (“CIPA”); and (4) a method relying upon a Supreme Court case, Scher v. United States. Id. at 143-58.

The January FOIA production explicitly said that: “The Government keeps close records of the use of these [four] techniques to ensure that it can be proved to judges and/or oversight personnel from Congress or the administration that the defendant is was not unlawfully or unconstitutionally disadvantaged by these techniques.” Id. at 158.

Accordingly, I requested:

(1) Copies of those "close records";

(2) Records identifying the number of cases in which "parallel construction" was used and classified information was not disclosed to the defendant;

(3) Records identifying the number of cases in which "parallel construction" was used and classified information was disclosed to the defendant;

(4) Records identifying the number of cases in which the CIPA method was used and classified information was not disclosed to the defendant;

(5) Records identifying the number of cases in which the CIPA method was used and classified information was disclosed to the defendant;

(6) Records identifying the number of cases in which Scher v. United States was relied upon to share intelligence-community information with the DEA and that information was not disclosed to the defendant;

(7) Records identifying the number of cases in which Scher v. United States was relied upon to share intelligence-community information with the DEA and that information was disclosed to the defendant.

FOIA Request. The request was assigned tracking ID 14-00680-F. Letter from DEA to Avinash Samarth, MuckRock at 1 (Aug. 28, 2014) [hereinafter “Confirmation Letter”].

By letter dated September 15, 2014, the DEA stated:

The requested information, if it exists at all, would be exempt from disclosure under the FOIA, and DEA is not obligated to perform any search for, nor confirm or deny the existence of the requested information. If it exists at all, the information would be classified for national security purposes and exempt from public release according to 5 U.S.C § 552(B)(1). Also, any such information would be exempt from public disclosure pursuant to 5 U.S.C. § 552(B)(3), due to laws such as the National Security Agency Act of 1959. Finally, any such information would be exempt from public disclosure to 5 U.S.C. § 552(B)(7), to the extent that the information was compiled for law enforcement purposes and met one or more of the qualifications in that subsection.

Letter from DEA to Avinash Samarth, MuckRock at 1 (Sept. 15, 2014) [hereinafter “DEA Response”].

The DEA was incorrect in its response for several reasons:

First, the DEA’s refusal to confirm or deny the existence of the requested documents was inappropriate. This response—known as a Glomar response—cannot be made when an agency has already acknowledged the existence of the requested documents, which it did in the January FOIA production. I therefore request that you reverse the DEA’s Glomar response.

Second, the DEA’s invocation of Exemption 1 is inadequate because it fails to meet its obligation under that exemption to specify an Executive order under which it alleges responsive documents to be properly withheld. I therefore request that you direct the DEA to specify, or specify yourself, the Executive order on which documents responsive to my request have been withheld pursuant to Exemption 1.

Third, the DEA’s invocation of Exemption 3, relying on the National Security Agency Act of 1959 (“NSAA”), is likely overbroad. The NSAA only authorizes withholding documents that disclose specific information about National Security Agency (“NSA”) persons, functions, activities, or organization. It is highly unlikely that every single responsive record to my request contains only such information about the NSA. I therefore request that you instruct the DEA to disclose, or disclose yourself, any responsive documents or portions of documents that are not covered by the NSAA.

Fourth, the DEA’s invocation of Exemption 7 is effectively impossible to analyze because the DEA did not specify which of the six subsections of Exemption 7 it believes to be relevant in withholding documents responsive to my request. I therefore request that you instruct the DEA to disclose, or disclose yourself, the specific subsections pursuant to which relevant documents have been withheld.

I discuss each point in turn:

I. The DEA’s Refusal To Confirm Or Deny The Existence Of The Requested Records Was Inappropriate.

The DEA has already admitted the existence of the records in dispute and so its refusal to confirm or deny the existence of those records is inappropriate. In response to a prior FOIA request about “parallel construction,” submitted on August 5, 2013 and designated Request #13-00541-F, the DEA produced documents that acknowledged four “techniques” the agency uses to incorporate intelligence information into its investigations. January FOIA Production at 143-58. Two of the disclosed pages explicitly said: “The Government keeps close records of the use of these techniques to ensure that it can be proved to judges and/or oversight personnel from Congress or the administration that the defendant is was not unlawfully or unconstitutionally disadvantaged by these techniques.” Id. at 158. After citing these pages, I specifically requested those “close records.” FOIA Request ¶ 1.

The issue here is straightforward. As a matter of law and common sense, the DEA cannot plausibly refuse to “confirm or deny the existence” of documents it has already admitted exist. Requesters “overcome a Glomar response by showing that the agency has already disclosed the fact of the existence (or nonexistence) of responsive records, since that is the purportedly exempt information that a Glomar response is designed to protect.” ACLU v. CIA, 710 F.3d 422, 427 (D.C. Cir. 2013). “If the government has admitted that a specific record exists, a government agency may not later refuse to disclose whether that same record exists or not.” Wilner v. NSA, 592 F.3d 60, 69 (2d Cir. 2009).

I also requested categories of documents whose existence are predicates of the “close records” that the DEA has already acknowledged to exist. FOIA Request ¶¶ 2-7. If the Government keeps “close records” on the use of the four acknowledged “techniques” in order to prove to oversight personnel that criminal defendants had not been “unlawfully or unconstitutionally” disadvantaged, it is obvious that the Government also keeps records that would identify the number of cases in which each of the four techniques were used.

Even if that were not obvious, it is not “plausible” that disclosing the existence of documents identifying the number of cases in which each of the four techniques were used would cause any marginal harm, given that the DEA has already disclosed that it keeps “close records” on the use of the four acknowledged techniques. See Wilner, 592 F.3d at 75. Glomar responses may only be invoked when confirming or denying the existence of records itself would “cause harm.” Roth v. U.S. Dep’t of Justice, 642 F.3d 1161, 1178 (D.C. Cir. 2011) (emphasis added); Wolf v. CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007).

Thus, the DEA’s refusal to confirm or deny the existence of the requested records was clearly inappropriate and should be reversed.

II. The DEA Has Not Provided Adequate Information To Invoke Exemption 1.

Exemption 1 allows responsive records to be withheld if they are “(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense of foreign policy and (B) are in fact properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1) (2013). The DEA has not specified what Executive order in particular would justify keeping secret either the “close records” of its use of the four techniques or records identifying the number of times those techniques have been used. Without knowing what Executive order the DEA relies upon, it is impossible to analyze the agency’s claim.

I therefore request that you instruct the DEA to identify, or identify yourself, the Executive order under which Exemption 1 permits withholding documents responsive to my request.

III. The DEA’s Invocation Of Exemption 3 Was Likely Overbroad.

Exemption 3 requires a two-pronged approach: “First, [one] must consider whether the statute identified by the agency is a statute of exemption contemplated by Exemption 3. Second, [one] must consider whether the withheld material satisfies the criteria of the exemption statute.” Wilner v. NSA, 592 F.3d 60, 72 (2d Cir. 2009) (citing CIA v. Sims, 471 U.S. 159, 167 (1985)).

The DEA invoked Exemption 3 “due to laws such as the National Security Agency Act of 1959.” Response at 1. The NSAA is probably a statute contemplated by Exemption 3. Wilner, 592 F.3d at 72. However, it only exempts records that disclose “the organization or any function of the National Security Agency, of any information with respect to the activities thereof, or the names, titles, salaries, or number of persons employed by such agency.” Pub. L. No. 86-36, § 6, 73 Stat. 63, 64 (emphasis added). “To qualify for exemption under the National Security Agency Act, the agency must show: (1) that the requested documents concern a specific NSA activity; and (2) that disclosure of the document ‘would reveal information integrally related to this NSA activity.’” Times Newspapers of Great Britain, Inc. v. CIA, 539 F. Supp. 678, 684-85 (S.D.N.Y. 1982) (quoting Hayden v. NSA, 608 F.2d 1381, 1390 (D.C. Cir. 1978), cert. denied, 446 U.S. 937 (1980)).

My FOIA request did not limit itself to records containing specific information about the National Security Agency’s persons, functions, activities, or organization. See FOIA Request. Thus, unless the DEA can show that every single responsive record to my request contains only such specific information about the NSA, then the total withholding of all responsive documents to my request cannot rest on the NSAA.

I therefore request that you instruct the DEA to disclose, or disclose yourself, any documents or portions of documents that do not meet the requirements for NSAA-based Exemption 3 withholdings as described above.

IV. The DEA’s Invocation Of Exemption 7 Was Inappropriately Vague.

The DEA failed to specify which of the six subsections of Exemption 7 it was invoking to withhold responsive documents. Each subsection has its own doctrinal background and rules permitting agencies to legally withhold documents responsive to a FOIA request. Without knowing which subsections of Exemption 7 the DEA claims to be relevant, it is overly burdensome and effectively impossible to analyze the agency’s claim.

I therefore request that you instruct the DEA to specify, or specify yourself, which subsections of Exemption 7 authorize withholding documents responsive to my request.

***

Thank you for your prompt attention. In the event that this appeal is denied in part or in full, I request that you please provide a written response describing the reasons for denial, and the names and titles of each person responsible for the denial.

Sincerely,

Avinash Samarth

From: Drug Enforcement Administration

A letter stating that the request appeal has been received and is being processed.

From: Drug Enforcement Administration

A letter stating that the request appeal has been received and is being processed.

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.

  • Samarth, Avinash, AP-2015-00749, DEA - Affirm PMG categorical b1 & b3

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