executive order requiring agencies to err on the side of
disclosure when processing Freedom of Information Act requests, the
Drug Enforcement Agency exempted a record number of FOIA requests
in 2011 in nearly every category.
But it didn’t set records just in 2011: According to a
comparison of publicly available data from FOIA.gov, the DEA
rejected more FOIA requests in 2009, 2010, and 2011 than it did
during the last year of George W. Bush’s administration.
When every FOIA exemption is taken into account (exemptions are
the legal exceptions that allow agencies to withhold information
from requesters), the DEA cited 2,195 exemptions in 2011, a 114
percent increase over 2008, when it cited only 1,024
The number of FOIA exemptions the DEA cited in 2011 also
revealed an increase when compared to preceding years of the Obama
administration--an increase of 38 percent over 2010 (1,581
exemptions), and 5.7 percent over 2009 (2,075).
But the really incredible number
concerns the DEA’s citation of FOIA exemption 7(e). According to
the Justice Department, 7(e) “affords protection to all law
enforcement information that ‘would disclose techniques and
procedures for law enforcement investigations or prosecutions, or
would disclose guidelines for law enforcement investigations or
prosecutions if such disclosure could reasonably be expected to
risk circumvention of the law.’”
The use of 7(e), which allows the DEA to conceal its policies
regarding the use of wiretaps, raids, confidential informants,
straw buys, tracking devices, and other tactics, increased 620
percent between 2010 and 2011; and 912 percent between 2011 and
According to the
Justice Department, a tactic need not be secret for an agency
to withhold details about its use:
The first clause of Exemption 7(E) permits the withholding ofIn other words, the DEA might not just be withholding the
"records or information compiled for law enforcement purposes . . .
[that] would disclose techniques and procedures for law enforcement
investigations or prosecutions." This clause is phrased in
such a way so as to not require a showing of any particular
determination of harm -- or risk of circumvention of law -- that
would be caused by disclosure of the records or information within
its coverage. Rather, it is designed to provide "categorical"
protection of the information so described.
Notwithstanding the broad scope of Exemption 7(E)'s protection,
in order for the exemption to apply, the technique or procedure at
issue ordinarily must not be well known to the
public. Accordingly, techniques such as
"wiretapping," "mail covers" and the "use of post office
boxes," "'security flashes' or the tagging of
fingerprints," pretext telephone calls, and "planting
transponders on aircraft suspected of smuggling" have been
denied protection under Exemption 7(E) when courts have found them
to be generally known to the public.
In some cases, however, even commonly known procedures have been
protected from disclosure when "'the circumstances of their
usefulness . . . may not be widely known,'" or "their use in
concert with other elements of an investigation and in their
totality directed toward a specific investigative goal constitute a
'technique' which merits protection." Increasingly, moreover,
courts have endorsed the withholding of a wide variety of commonly
known procedures -- for example, polygraph
examinations, undercover operations, and surveillance
techniques -- on the basis that disclosure of their
details could reduce or even nullify their effectiveness.
use of these tactics in specific cases, but also more general data
that reveals how frequently the agency uses wiretaps and tracking
2011 saw a massive increase in the use of 7(e) exemptions: In
2010, the agency cited the exemption 45 times; in 2011, it cited
the exemption 324 times. Below is a chart compiled using FOIA.gov
that shows the DEA’s increase of FOIA exemptions between 2008 and
2011. With the with the exception of exemption 2, which protects
internal correspondence concerning personnel and human resources
issues, DEA FOIA exemptions have increased in every single category
During the same period that FOIA rejections were skyrocketing,
the DEA increased its full-time FOIA staff from 16 in 2008, to 21
in 2011. The cost of litigating DEA FOIA lawsuits, meanwhile,
increased from $206,892 in 2008, to $371,274 in 2011.
But the opacity doesn't end with rejections. According to
FOIA.gov, "the Attorney
General’s FOIA Guidelines encourage agencies to
systematically post information of interest to the public on agency
websites without the need for a FOIA request." As such, every
agency maintains a "FOIA Library" with a public catalog of FOIA
requests an agency has responded to. The DEA's "electronic reading
room" (the old label for a FOIA Library) is empty:
The page's last update? Oct. 10, 2008.