PPSA Sues After Justice Department Stonewalls and FBI Responds to FOIA with a “Scavenger Hunt”

​Administrative subpoenas are the backstage pass for federal agents seeking to warrantlessly surveil millions of Americans. PPSA filed a FOIA lawsuit on Tuesday against the Department of Justice to bring this practice to light.
 
Thanks to the investigative efforts of Sen. Ron Wyden (D-OR), we have had a glimpse into the murky practice of using what is really an administrative order (given the deference of courts to such “subpoenas”) to collect bulk data. Sen. Wyden revealed that the Homeland Security Investigations unit of the Homeland Security Department fired off administrative subpoenas to acquire millions of financial records from wire-money transfers. In this way, the government got its hands on millions of financial records, complete with personal information, that included money transfers between Arizona, California, New Mexico, Texas, and Mexico.
 
But a multitude of other agencies also issue administrative subpoenas – and there is no telling what they are collecting.
 
“It is likely that in most cases, they are seeking bulk data of millions of innocent Americans to sift through, rather than targeted data against an individual based on probable cause,” said Gene Schaerr, PPSA general counsel. “It is hard to think of a more direct violation of the Fourth Amendment.”
 
PPSA submitted a FOIA request in June 2023, asking the Justice Department and its units for records on whether probable cause standards were applied to administrative subpoenas. How many administrative subpoenas were issued without probable cause? How many were rejected for lacking probable cause? Perhaps most importantly: How many administrative subpoenas were not directed at a particular identifiable investigation or target?
 
In the year-and-a-half since the filing of our FOIA request, the Justice Department and its constituent parts have failed to respond “promptly” – or at all – to PPSA’s query, as the law requires.
 
The FBI did direct PPSA to its Vault website. But the FBI did not state that the Vault contained all responsive records, and did not identify under what categories in this voluminous online chamber of documents the requested records could be found. The FBI and the Executive Office for the United States Attorneys were only a little more responsive than Justice’s Office of Information Policy, the Criminal and Civil divisions of the Justice Department, and the Bureau of Alcohol, Tobacco, Firearms and Explosives – which did not respond in a substantive way at all.
 
“Courts have held that the Freedom of Information Act does not permit agencies to send requesters on a ‘scavenger hunt,’” Schaerr said. “Yet that is what the FBI is doing. Most of the other Justice Department agencies are completely unresponsive. That is why we are filing suit in the U.S. District Court in Washington, D.C., to ask a federal judge to end this lawlessness.”
 
PPSA will report significant developments in our case as they occur.

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