Despite President Obama’s 2009 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 exemptions.
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 2008.
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 of "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.
In other words, the DEA might not just be withholding the use of these tactics in specific cases, but also more general data that reveals how frequently the agency uses wiretaps and tracking devices.
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 since 2008.
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.