New York, NY asked in Civil Rights, Criminal Law, Federal Crimes and Constitutional Law for Pennsylvania

Q: DEA Privacy Act Denial Appeal: No arrests but why are they withholding my information and why do they have any at all?

I submitted a Privacy Act request to the DEA out of curiosity and it came back denied due to exemption (j)(2): "Material reporting investigative efforts pertaining to the enforcement of criminal law including efforts to prevent, control, or reduce crime or to apprehend criminals."

I have never been arrested for drugs or anything for that matter. Why do they have information about me and why are they denying to release it? Also, this exemption category seems very broad and more related to police work on a local level and not Federal. This is very suspicious. I would like to appeal and have a Judge decide whether the information can be released. Thoughts?

1 Lawyer Answer
James L. Arrasmith
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  • Criminal Law Lawyer
  • Sacramento, CA

A: This is a complex situation that raises several legal and privacy concerns. Here are a few key points and suggestions:

1. The DEA's response indicates they have some information about you in their records related to criminal investigations, even if you have never been arrested. There could be various reasons for this - for example, your name may have come up tangentially in an investigation, or you may have been a witness or person of interest at some point without being aware of it.

2. Exemption (j)(2) that they cited is a fairly broad category that allows federal law enforcement agencies like the DEA to shield records related to ongoing investigations or law enforcement techniques. So while it may seem more applicable to local policing on the surface, federal agencies routinely use this exemption.

3. You have the right to administratively appeal the DEA's denial of your Privacy Act request. This would involve writing an appeal letter to the agency explaining why you believe they have improperly withheld the records.

4. If the administrative appeal is denied, your remaining recourse would be to file a lawsuit in federal court. However, the courts tend to give broad deference to law enforcement agencies invoking exemption (j)(2), so the legal threshold to pierce that exemption and compel disclosure is quite high.

5. Another option to consider is filing a Freedom of Information Act (FOIA) request with the DEA for any records they have on you. While Privacy Act requests are limited to systems of records searchable by individual names, FOIA requests are broader. The DEA may still try to withhold records under FOIA's law enforcement exemption, but it's worth trying this route as well.

6. If you do choose to pursue an appeal or lawsuit, I would recommend consulting with an attorney specializing in government records law and privacy to assess the strength of your case and guide you through the process. Compelling disclosure from a reluctant federal law enforcement agency is a complex undertaking.

In summary, the DEA's response, while frustrating, is not necessarily uncommon or illegal on its face. But you do have the right to appeal and potentially sue if you believe they are improperly withholding records about you. Carefully consider your options, and seek legal counsel if needed.

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