CONFIDENTIALITY OF DEA INFORMANTS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81M00980R000200020058-5
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 16
• Document Creation Date: December 16, 2016
• Document Release Date: March 4, 2005
• Sequence Number: 58
• Publication Date: March 15, 1978
• Content Type: MEMO

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MEMORANDUM FOR;:{ ~rAII/DI7~
As you can. see from the attached memo
the May 76 "harm theory" put out by DOJ is giving
a few problems to DEA. Generally speaking
we have not made many changes as a result of the
FORM 5.75 101 Eoi T I ONS{ous
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 JULY 1*7S 4 CF
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UNITED STATES' GOVERNMENT ~_ ? ~8- /, ,74
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ermorandum
Freedom of Information Division
Russ Aruslan, Chiefi
SU$JEcT: Confidentiality of DEA Informants
has always relied on a comprehensive exemption that protects
the unique relationship between DEA special agents and informants.
DA=: MAR 15 1978
In May of 1977, the Attorney General instructed all components
of the Department of Justice to review their procedures in the
processing of Freedom of Information and Privacy Act requests.
Because of the increasing backlog of such cases on the docket
of the Federal Courts, Freedom of Information offices through-
out the Department were instructed to release to the public
all requested information that would not constitute a direct
harm to government interests. The "harm theory" as it has
.come to be known has, in effect, replaced the statutory exemp-
tions of the Freedom of Information Act as the sole criteria
for the withholding of requested information.
For the past nine months, the primary effect of this change
has been to greatly increase the administrative burden of the
Freedom of Information Division. Material that was once
routinely withheld must now be scrutinized on a line-by-line
basis in an effort to ascertain the "harm" associated with
each document. While such rulings serve primarily. to frustrate
our administrative efforts, I feel the need to bring to your
attention a matter of more far reaching and potentially grave
consequences.
The seventh exemption of the Freedom of Information Act con-
tains a provision that protects both the identity of and
information supplied by a confidential source [5 U.S.C. 552
(b)(7)(D)]. CCFI has, since its inception, treated this as
an absolute exemption--releasing information pertaining to
informants only when the information is clearly a matter of
common knowledge. However, in the past few weeks, CCFI has
been advised by attorneys from the office of Privacy and
Information Appeals (OPIA) that, in applying the "harm
theory", it is possible to release much of the information
on DEA documents regarding confidential informants without
identifying the specific informants and without subjecting
them to personal harm.
While the threat presented to the individual informant is
undeniably the primary intention of the (7)(D) exemption, CCFI
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Specifically, this office is prepared to formally object to the
recent interpretation of the OPIA for the following reasons:
1.. The relationship between -the.DEA special agent
and the informant is one that is delicately based
on a trust and confidence that is nurtured on a
personal-level. If it becomes known (as it
inevitably will), that DEA is releasing documents
pertaining. to informant activity, . that. trust and
confidence will begin to erode. The inability to
obtain reliable information will thus weaken
future investigations and ultimately compromise-
the DEA mission.
2. It isivirtually impossible for the FOI specialist
or the special agent-assigned to:CCFI.to make
determinations of. this kind from Headquarters..
Any information, released could possibly contain
nuances which would disclose otherwise undiscernable
information to interested parties.. In short,.I-feel.
that the "harm theory" cannot-objectively be applied
to.information pertaining to informants.
Attached for your information is a sample DEA-6-that has been
processed-in accordance with the guidelines e-et'forth by the
OPIA. Please review this document and consider the results
of large-scale dissemination of this kind of'materi~al.
If CCFI is to be successful in its efforts to object to these
and other decisions that appear to compromise the mission of
this agency, it will be necessary to enlist.t,he support of
the Administrator. Freedom of Information and Privacy Act
requests are appealed directly to the Office of Privacy and
Information Appeals in the Office of the Deputy Attorney
General. The final determination is written for signature
and he will be the one to either accept or reject our position.
Please respond to this memorandum by indicating whether or not
you agree with our arguments as set forth above, and whether or
not you will support_CCFI in our objection.
Donald E. Miller, Chief Counsel
John G. Evans, Assistant Administrator for Enforcement
William G. Fink, Assistant Administrator for Intelligence
Joseph E. Krueger, Acting Chief Inspector, Internal Security
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 QUINLAN J. SHEA
DIRECTOR OF THE OFFICE OF
PRIVACY AND INFORMATION APPEALS
OFFICE OF THE DEPUTY ATTORNEY GENERAL
THE SUBCOMMITTEE ON CRIMINAL
LAWS AND PROCEDURES
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
MARCH 9, 1978
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Mr.. Chairman and Members of the Subcommittee:
I am Quinlan J. Shea, Jr., Director of the Office of
Privacy and Information Appeals, Office of the Deputy Attorney
General. I appreciate the opportunity to appear before you
today on behalf of Attorney General Bell to provide the views
of the Department of Justice regarding the impact of the
Freedom of Information and Privacy Acts on the criminal justice
law enforcement process.
These two statutes have had a definite impact on the
Department of Justice and law enforcement in general, but that
impact has not been as adverse as some persons would have you
believe. On the other hand, statements to the effect that the
adverse impact has been minimal and results primarily or solely
from Executive Branch intransigence display either an inability
to recognize or unwillingness to accept unpleasant facts. As
is true in most controversies, the truth of the matter lies
somewhere between the two extreme positions. As I will detail
below, the Freedom of Information and Privacy Acts have caused
serious problems for and imposed severe burdens on our Depart-
ment. On the other hand, they have resulted in benefits to the
Government as a whole, to the Department of Justice, and even
to the criminal justice law enforcement process. Attached to
my statement are the Department's answers to the sixteen ques-
tions posed by Senator Eastland, but I would appreciate being
allowed to make certain additional comments at this time. Before
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doing so, however, let me.stress that the Department of Justice
continues to believe that most problems in this area could be
substantially reduced in terms of magnitude by a cooperative
effort between Congress and the Executive Branch.
it is the firm and unequivocal position of the Department
of Justice that there is no inherent conflict between efficient,
.effective criminal law enforcement and the principles underlying
the Freedom of Information and Privacy Acts. We recognize that
we are dealing with two very important societal interests --
openness in Government and the valid needs of the law enforce-
ment process. At certain points these interests do conflict
to some extent and decisions have to be made as to which is
to control. For the most part, however, we believe that each
of these important interests can be served without doing violence
to the other.
What kinds of problems do we face as we attempt to satisfy
both of these societal interests to the maximum possible extent?
Many have their roots in the actual language of the statutes
and their respective legislative histories. In 1966 and again
in 1974, Congress correctly concluded that the Executive Branch
of our Federal Government had abused the discretion vested in it
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by then-existing law in making decisions as to what records
should be made available to the American public. As a result,
however, these two statutes are written to eliminate any
Executive Branch discretion as to materials intended to be
subject to mandatory release, and the legislative history on
which the courts must rely is replete with statements that
the statutory exemptions are to be construed as narrowly as
possible. The problem with this approach is, as I shall point
out more explicitly below, that the statutes themselves lack
precision. As a result, we are having trouble defending in
the courts propositions we feel are essential to preserving
our ability to carry out successfully our law enforcement
mission. The Department of Justice has been calling attention
to these problems since 1975, and we are encouraged by the in-
terest being shown by this Subcommittee, as well as by others
with legislative and oversight jurisdiction.
The second kind of adverse impact has been one of ad-
ministrative burden and largely unfunded costs. As the answers
to certain of the sixteen questions make clear, the dollar cost
to the Department of Justice in CY1977 was, at a minimum, be-
tween-thirteen and fourteen million dollars. For the Federal
Bureau of Investigation alone, the figure for the year was in
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excess of ten million, six hundred thousand dollars. My own
judgment is that the correct total, if we could recover all of
our cost data, would be in excess of fourteen million dollars.
The two statutes with which we are concerned today im-
pose definite.obligations on the Department of Justice and all
other Executive Branch agencies. Resources have not been provided.
Therefore, the personnel, supplies and equipment dedicated to
activities in these areas have had to be taken from resources
appropriated by Congress in contemplation of other departmental
missions.
I would like at this time to address briefly.some of
the more serious specific problems presented by the language
and legislative history of the Freedom of Information Act.
There are various very sensitive records that are created to
enable us to carry out our law enforcement missions. Among
these are certain agents manuals and instructions prepared by
law enforcement agencies and components, the release of which
would assist individuals in breaking the law or avoiding appre-
hension. One recent court decision held that even the most sen-
sitive portions of. the agents manual of the Bureau of Alcohol,
Tobacco and Firearms -- specifically found by the court to be
too sensitive to be released-for the reasons indicated above --
were not exempt from release under any provision of the law.
Relying on the manifest intent of Congress, the court none-
theless refused to release these manual portions, on the
theory that it had equitable discretion not to order release
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of nonexempt records. This is a minority view in the courts,
however, and is vigorously resisted by many commentators on the
statute. The Department of Justice certainly does not concede
that this kind of very sensitive material is not exempt from
mandatory release under the Act, but we respectfully suggest
that the statute governing access to materials of this kind
should be written in such clear and unequivocal terms that there
is no room for any doubt. We have had. considerable success in
relying on 5 U.S.C. 552(b)(2) as a basis for withholding such
materials, but this particular court looked to the Senate Report
.on that provision (rather than the more expansive House Report)
and ruled against us. It seems logical that manuals, as well
was such materials as lists of radio frequencies in current use
by border agents, the formula for the ink used to print our
currency, etc., should be subsumed.under the provisions
of.5 U. S. C . 552(b).(7), which is generally referred to as the law
enforcement records exemption. But that exemption is specifi-
cally limited to "investigatory records" -- as opposed to en-
compassing any records created, compiled or maintained for law
enforcement purposes -- and we have had some difficulty selling
the proposition that agents manuals and other materials of com-
parable sensitivity are "investigatory" in nature.
Even where records are clearly investigatory in nature,
and were compiled'for law enforcement purposes, they are not
exempt from mandatory release unless they fall within one of the
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six clauses of 552(b)(7). The first of these exempts records
the release of which would interfere with law enforcement pro-
ceedings. Some courts have held that this provision is, in
effect, coextensive with the access provisions of the Federal
Rules of Criminal procedure, but others have refused to-do so
and have required records in open, active cases. to be reviewed.
This is a burden that benefits society not at.all and we suggest
that the Act should not permit it." Once it is established that
there is in fact an open and active investigation in progress,
that should ordinarily be the end of the matter. It is unfortunate
enough that we have to admit the existence of such records before
we can deny access to them, that is, to tell the subject that he
is under investigation. This is the result of the "confession and
avoidance" nature of the statute. It is hard to understand what
societal interest is served by making us stop an investigation
and review the records generated in its course to see if any of
them can be released to the requester -- most often, of course,
the requester is the individual under investigation.
There is no doubt that there has been an adverse impact
on our ability to recruit and retain informants and to obtain
needed information from such organizations as state and local
law enforcement agencies, business enterprises, etc. Until quite-
recently we had been successful in our efforts to persuade courts
that police departments, for example, are "confidential "sources"
within the meaning of 5 U.S.C. 552 (b) (7) (D) . In a few recent
instances, however, courts have questioned this position. We
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were already having a difficult time convincing such agencies
that we could and would protect the informatioh'they provide
us in confidence. For these reasons the Department'of justice
would find it preferable to operate under a statute which makes
unmistakably clear the fact that "source" is used in the broad,
dictionary sense, and is in no way limited by the tra-
ditional concept of "informant." The legislative history of the
specific provision actually supports our position, but the fact
is that at least some courts are relying instead on the numerous
indications in the same legislative history that all of the exemp-
tions are to be narrowly construed. If our right to protect
the identities of all our sources were clear, as well as our
right to protect any information provided by a source that either
we or the source felt must be held in confidence, we would in
time be able to reverse the current erosion of our information-
gathering capability. Absent such clarification in the statute
itself, the situation will almost certainly continue to de-
teriorate.
Several courts have questioned our contention that the iden-
tities of law enforcement personnel can lawfully be excised from
records, on personal privacy grounds, before they are released.
Given the past history of vilification and harassment so often
directed against law enforcement personnel and members of their
families, our right to protect our agents from potentially serious
invasions of personal privacy should be clearly set forth in the
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Act. At the present time it appears that 5 U.S.C. 552(b)(7)(C)
may not be adequate, while 'we ' cannot invoke 5 U.S.C. 552(b) (7) (F)
except where the threat of loss of life or personal injury can
be shown to exist before the fact. Law enforcement personnel
and their families should not be left in this position.
The last specific example I would like to . bring-to th'e .-
attention of the Subcommittee is in the area of investigative
techniques and procedures.. We rely on 5 U.S.C. 552(b)(7) (E) in
any instance where release of the information could possibly
reduce the effectiveness of a technique or-procedure, or could
increase the risk to our personnel. Although I am not aware of
any case where a court has failed to uphold our position in this
area, our experience under some of the other exemptions is enough
to cause us some concern here as well.
To sum up all of the examplesI have mentioned, Mr.
Chairman, it'is the view of the Department of Justice that sen-
sitive law enforcement records should be able to be protected
for as long as they are in fact sensitive. Criminal justice law
enforcement records really warrant separate-statutory treatment,
because they are too important and too complex for anything less.
Absent that, however, the Act should be amended to give them
the protection they require, and to enable us to protect them
without expending excessive resources in doing so.
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9
Having mentioned that. there are definite benefits that
have redounded to law enforcement from these two statutes, it
seems appropriate to mention at least some of them. In no
particular order of importance I note first the fact that the
statutes do constitute specific, if imprecise, recognition by
Congress that criminal justice records can properly be withheld
under certain circumstances. Second, releases under the Acts
have definitely tended to assist in the restoration of public
confidence in government in general and. the criminal justice.
law enforcement process in particular. In certain cases of great
public interest and continuing controversy, such as the Rosenberg
and Hiss cases, and the assassinations of President Kennedy and
Dr. Martin Luther King, Jr., the releases of our records are
tending to-demonstrate clearly both the competence of our criminal
investigative process and the correctness of the conclusions
reached by juries, courts and such bodies as the Warren Commission.
Third, instead of merely acquiring and keeping data, our com-
ponents have begun the desirable process of studying just what
data they really need to acquire, how it should be used, and how
long it should be retained. The Privacy Act has had even more
impact in this area than. has the Freedom of Information Act, be-
cause of the former's requirement that notices be published con-
cerning systems of records containing data that can affect
individuals directly. Within the Department.o.f.Justice, as a
last and specific example, it is recognized that access by inmates
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to most of the records in their prison files has operated to
reduce tension in our confinement-facilities.
Mr. Chairman, the Department of Justice is.committed to
both criminal justice law enforcement and openness in government.
We have on a number of recent occasions suggested that what is
needed is a cooperative effort with Congress to work towards
a reasonable reformulation of these two statutes. On behalf
of Attorney General Bell, I renew that offer today. We believe
that, with no ignificant reduction in the amount of material
that can be made public, it is possible to reduce considerably
the burden that these Acts have placed on our Department, par-
ticularly the F.B.I., and to restore our damaged ability to
carry out our responsibilities to the American people in the
area of criminal justice law enforcement. In addition to
addressing the substantive points I have covered, such changes
should include extending the basic
limits for responses
under the Freedom of,_Information Act, providing that those time
limits can be extended based on the volume of the records that
must be reviewed pursuant to a request, and eliminating the
"quickie" lawsuits -- so terribly burdensome and wasteful of
resources -- now permitted under the Act.
That concludes my prepared statement, Mr. Chairman. I
ask that the statement and the Department's answers to Senator
Eastland' s sixteen "questions be :made a part of the record of the
Subcommittee's hearings. I am prepared to respond at this time to
any questions the Subcommittee may have.
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ROUTING AND RECORD SHEET
SUBJECT: (Optional)
FRO
EXTENSION
NO.
(:hie n orma ion and Privacy Staff
DATE
25
3 April 1978
TO: (Officer designation, room number-,,:,.and
building) 0 .
DATE
OFFICER'S
COMMENTS (Number each comment to show from whom
ax ?:
RECEIVED
FORWARDED
INITIALS
to whom. Draw a line across column after each comment.)
AI/DDA f
(BX-4)
pR 197
FYI .
2 3 .
3.
OGC/FOIA Division
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OLC
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7.
Chief, IPS
2E42 Has.
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