DEA's Dumb Secrets

Hey there, Joseph here, I'm back. Something I've noticed recently is U.S. government agencies refusing to comply with even the most basic, and specific, records requests. Here is a case demonstrating that: why did the DEA refuse to hand over spending information about its retirement medals? Bizarre. The full story with context follows below.

For months, I’ve been in a high stakes battle with the Drug Enforcement Administration (DEA). Legal letters fired back and forth. The DEA refused to release records under the Freedom of Information Act (FOIA). Another part of the DEA intervened to get those documents published. For what, you ask? Some standard expenditure records on the DEA’s purchase of retirement medals and other awards.

That information, of course, is not actually that important. But the DEA’s initial refusal to fulfill my FOIA request, despite it being written with specific language I’ve used for years to successfully learn what the U.S. government spends its money on, shows that agencies sometimes put up a fight for even the most trivial records.

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“One thing we've seen in the last few years is a backslide in things that used to be routinely released and of significant public value, everything from records indicating open financial irregularities investigations to processing notes of the FBI's FOIA requests,” Michael Morisy, founder and chief executive of FOIA-focused platform Muckrock, told me in an email.

In December last year I was scrolling through U.S. procurement databases looking for interesting things to FOIA, and I came across a DEA payment to a company called Classic Art of Brookland, LLC. Huh, I thought: I wonder if this $7,847.50 is for some paintings inside a DEA building. I wonder if I could see what exactly the DEA bought, that would be pretty funny.

So I filed a FOIA request with the following language:

All invoices, purchases orders, contracts, loan agreements, procurement documents (but not limited to solicitation documents or notices of proposed contracts, proposed bids, unsolicited proposals, and/or documents justifying contracting without full and open competition), statements of work, relating to Award ID 15DDHQ24F00000059.

I think this is language I adapted from an American Civil Liberties Union (ACLU) request I saw many years ago. For a while I’ve added the explicit ask for “statements of work” (SOW), though, because this is often where the actually interesting stuff is. SOWs lay out, in the clearest possible terms, why exactly an agency is buying whatever product it is.

The following month, I got my response. “A determination has been made to deny your request,” it read. Specifically, it cited the exemption (b)(5), which relates to “privileged communications within or between agencies,” including attorney-work product and attorney-client privilege.

Image: 404 Media.

Why would a contract with an art company, which has a handful of reviews on Yelp, trigger such an exemption? So I did what I think everyone should do when their FOIA request is denied: appeal.

“I am appealing this decision. I have successfully requested documents from the DEA using near identical language for other contracts,” I wrote a day later. “The exemptions here do *not* relate to law enforcement techniques, so that is not a concern. The DEA can instead provide redacted records that do comply with the exemptions.”

A few months later, I got a positive response. “After carefully considering your appeal, and as a result of discussion between DEA personnel and this Office, I am remanding your request to DEA for further processing of the responsive records,” the chief of the Administrative Appeals Staff wrote to me in May. 

At the end of August, I received what I had been waiting for. Two PDFs detailing the work between the DEA and Classic Art of Brookland. Opening them up, it quickly became apparent that the records themselves should not have been denied by the DEA.

“9 x 12 Walnut retirement shield with medallion and engraved gold plate,” one line item read, with a redaction over what I presume is the related event or name of the person receiving it. “13 x 16 - Retirement shadow box with engraved gold plate,” another read. A third specified a “blue background, regular glass, mahogany cap, hold inner frame, DEA 2” medallion or badge, at top, engraved brass plate.” Others are for the “Administrator’s Award of Valor,” and “Administrator’s Award for Distinguished Service.”

Image: 404 Media.

So, all entirely normal retirement gifts and awards for government officials. And yet, the DEA did not want to hand these records over.

It’s not just the DEA that has recently denied my requests which used clear, specific language seeking procurement documents. I’ve had similar experiences with various branches of the Department of Homeland Security (DHS) as well over the last 12 to 18 months or so. 

The reason this matters is because if agencies are prepared to deny records that are clearly releasable, they may not release stuff that actually matters either. A slow blocking of records that the public have a legal, and ethical, right to access.

Saying that, the records did reveal something actually interesting: although the individual contract I sent a request related to was for a few thousand dollars, an attached blank purchase agreement (BPA) says that “the government estimates, but does not guarantee, that the volume of purchases through this BPA will be $360,000.00 over the term of the BPA.” So, a lot more than a few thousand bucks.

“Often times reliance on third-party contractors, that lack the experience and independence of FOIA offices, are part of the problem. Other times we've seen agencies focus on getting ‘good’ numbers for their annual reports by quickly closing out requests when they don't think requesters will push back, or if they think they can stretch exemptions a little further thanks to corporation-friendly precedent like the Argus Leader case,” Morisy added.

Classic Art of Brookland did not respond to a request for comment.