DEA Brushes Off FOIA Request on Stingrays

​The Drug Enforcement Administration’s response to three PPSA Freedom of Information Act (FOIA) requests shows just how far government respect for that law has fallen. As we’ve seen recently with other government agencies, DEA didn’t even try to pretend it was following that law.
 
Over the course of a year, PPSA filed three FOIA requests with the DEA seeking documents relating to the use of cell-site simulators, commonly known by the trade name Stingray. Government agencies use these devices to mimic cell towers, pinging consumers’ cellphones in a given geographic area to prompt them to give up private location data, and sometimes the content of communications. PPSA sought records since 2015 that reflect each use of a cell-site simulator by DEA that was conducted without a warrant based on emergency, exceptional, or “exigent” circumstances.
 
We thought it would be a useful guide for public policy to know how often the agency defined something as an emergency, side-stepping the need to obtain a probable cause warrant.
 
On Monday, DEA came back with one combined response to all three FOIAs we had issued over the course of many months. If DEA had followed the law, it would have conformed to a federal precedent, Truitt v. Department of State (1990), which held that it “is elementary that an agency responding to a FOIA request must conduct a search reasonably calculated to uncover all relevant documents, and if challenged, must demonstrate beyond material doubt that the search was reasonable.”
 
Instead, DEA did not even try to pass the laugh test. It waved away all three FOIA requests citing an exemption that covers personnel documents and other Human Relations files. How could PPSA’s request for the use of cell-site simulators for emergency circumstances, in the words of the law, fall under an exemption for subjects that relates “solely to the internal personnel rules and practices of an agency”?
 
In a letter to the Director of Information Policy of the Department of Justice, PPSA general counsel Gene Schaerr responded: “It is almost certain that at least some documents concerning broader surveillance policy or related record-keeping would be responsive. Of course, DEA does not know one way or the other whether this is accurate because it refused to look for responsive records.”
 
How would DEA know that this request only involved personnel records without a responsive search? It is clear that DEA simply wanted to clear this one FOIA request off its desk.
 
We wish this case was an exception. Federal FOIA responses are becoming increasingly farcical. A FOIA response from the Department of Justice included 40 redacted pages with an insulting valediction – “hope that’s helpful.” Expect this lawless attitude toward the Freedom of Information Act to continue until courts step in and start leveling sanctions against those who treat the law as an ignorable suggestion.