Of this total, nearly one-third of the effect in the high-level investigations was attributed to the FOIA while only 11 percent of the effect in low-level investigations was so identified. Once again, most respondents indicated that they were unable to determine whether or not the FOIA was

the principal cause of the problem.

Figure 3-Percentage of Investigations in which DEA Investigative Techniques and Operations Appear to have been known to Defendants

"In some Federal agencies, a considerable number of FOIA requests come from incarcerated offenders, presumably trying to identify informants or from organized crime figures and drug dealers seeking to find out what the government knows about them and their criminal activity."

The extent to which FOIA-related problems affect DEA's more sensitive investigations is a continual finding. As was indicated, 14 percent of the DEA Agents surveyed reported that the FOIA had significantly affected the outcome of the sampled investigations. However, when isolating DEA's high-level investigations, 30 percent were significantly affected by the FOIA.

Figures 1 through 3 indicate the large differences between sensitive and nonsensitive investigations in the percentage of FOIA-related problems identified for each group and the extent to which those problems can be attributed to the law itself. Table 7 summarizes these differences.

*Figures in parentheses reflect the extent to which the problem was attributed to the FOIA.

87-749 - 82 - 68

experienced

When isolating DEA's most sensitive investigations, the effect is very significant. As shown in Figure 4, Agents in 66 percent of DEA's most sensitive investigations involving confidential sources difficulty in acquiring information from witnesses or defendants (31 of 47 investigations), with this difficulty attributed to the FOIA in 9 of these cases (29 percent). Forty-five percent of these investigations (21 of 47 investigations) involved informants that were either reluctant or unwilling to fully cooperate with DEA and nearly two-thirds of these instances were attributed to the FOIA.

Figure 4-Percentage of DEA's Most Sensitive Investigations (Class I) in which Confidential Sources Were Reluctant or Unwilling to Fully Cooperate with DEA and in which Investigative Techniques Appear to Have Been Known to Defendants

Source: Random sample of DEA investigations initiated during 1980.

Finally, in 62 percent of DEA's most sensitive investigations (33 of 53 investigations), Agents reported that DEA's investigative techniques and operations appeared to be known to defendants. Of this total, problems encountered in 12 of these investigations (36 percent) were attributed to the FOIA. Once again, it is noted that many Agents suggested that a large portion of the problems in which the cause was not specifically identified may actually be attributed to the FOIA.

This finding clearly suggests that FOIA-related problems are directly related to the sensitivity of the investigation. In every instance, both the level of difficulty and the percentage attributed to the FOIA are significantly higher in DEA's most sensitive investigations than they are in DEA's high-level investigations generally, which are more dramatically affected than are DEA's low-level investigations. These findings support the conclusion that the FOIA is a highly constraining influence in narcotics investigations.

V. Information from the Private Sector

Item A DEA district office in the southern United States reports that during the past 2 years, the majority of motels and hotels in the coastal area have established a policy of refusing to allow law enforcement officers to even peruse their registration records informally without a subpoena. These businesses indicate that their attitude has been based on a fear of lawsuits emanating from the FOIA.

DEA's problems in obtaining information from the private sector have been somewhat tempered by the current practice of the agency's obtaining administrative subpoenas for much of the information required during the course of an investigation. While this has the unintended effect of minimizing the amount of voluntary information given to DEA investigators, it

generally results in the ability of DEA Agents to obtain specific information. However, DEA Agents report that the time required to identify the information desired and prepare an administrative subpoena or comply with other procedural requirements often limits the utility of the information when it is received.

Although DEA Agents reported that only 23 of the investigations surveyed experienced difficulty acquiring information from the private sector, more than one-third of them attributed this difficulty to the FOIA. Several offices reported that the procedural requirements also increase the chance that the investigation will be made known to those under investigation.

For example, one district office reported that, given the disclosure requirements of the Financial Privacy Act, DEA Agents were reluctant to request access to an individual's bank records at the outset of an investigation for fear that DEA's interest would be made known to the subject of the investigation. Similar problems exist with respect to the administrative subpoena of telephone toll receipts. The policy of the telephone company to advise individuals that their records have been furnished to DEA often alerts suspects of ongoing investigations.

Finally, the uncertainties associated with both Federal and state disclosure and privacy laws have inhibited the routine reporting of "suspicious activity" to Federal authorities. A DEA field office reported that an investigation was delayed by nearly 6 months because employees of a telegraph company had been reluctant to notify DEA that a high-level violator had for a long period been using the telegraph system to make fianancial arrangements for illicit shipments of controlled substances.