Myrick Declaration- Civ. Action No. CV-J J-/997-RS

U.S.C. § 552; and the Privacy Act (PA) of 1974, 5 U.S.C. § 552a. SARF is the central DEA

IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF CALIFORNIA

office responsible for responding to, searching for, and processing and releasing DEA

information requested under the FOIA and PA.

Civil Action No. CV-II-1997-RS

DECLARATION OFKATHERINE L. MYRICKDRUG ENFORCEMENTADMINISTRATION

3. In preparing this declaration, I have read and am familiar with the Plaintiffs' Complaint for

Declaratory and Injunctive Relief filed on April 22, 2011, Motion for Preliminary Injunction filed

2. Due to my experience in responding to requests for DEA records since 1998, and the nature

of my official duties, I am familiar with the policies and practices of DEA and DOJ related to

searching for, processing, and the release of DEA information responsive to FOIA and PA

requests, and in particular, I am familiar with the processing of Plaintiffs' request to the DEA

that is the basis of this suit.

)AMERICAN CIVIL LIBERTIES UNION, )OF NORTHEN CALIFORNIA; SAN )FRANCISCO BAY GUARDIAN )

Plaintiff, ))

v. )))

DRUG ENFORCEMENT )ADMINISTRATION )

)Defendants. )

)

1. I am currently assigned as the Chief of the Freedom of Information Operations Unit,

(SARF), Drug Enforcement Administration (DEA), United States Department of Justice (DOJ),

located at DEA Headquarters in Arlington, Virginia. I have served in this capacity since 1998

and oversee the processing of requests to DEA under the Freedom of Information Act (FOIA), 5

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on April 28, 2011, and Reply in Support of Preliminary Injunction Motion filed on May 10,

2011, for the above titled action. The statements I make hereinafter are made on the basis of my

own personal knowledge, review of DEA records, and information acquired by me in the

performance of my official duties as Chief of SARF. The purpose of this declaration is to

provide the Court with information regarding DEA's search for responsive records pursuant to

Plaintiffs' twelve-item request dated January 4, 2011.

ADEQUACY OF SEARCH

4. On February 01, 2011, SARF initiated a search pursuant to the Plaintiffs' FOIA request by

submitting a search memorandum along with the Plaintiffs' January 4, 2011, request to the

Deputy Assistant Administrator, Office of Diversion. The Office of Diversion was identified as

the DEA Headquarters element likely to have records as its oversight responsibilities include the

importation of controlled substances. As a result, the Office of Diversion performed a search for

responsive records in its Regulatory Section and Policy and Liaison Section and identified

responsive documents maintained at DEA's Headquarters. The DEA completed this initial

search for records on or about February 8, 2011.

5. On or about April 23, 2011, the DEA received notice of the Complaint in the instant FOIA

suit. In response to the suit, the DEA conducted a standard litigation review of the FOIA

administrative file, which prompted a supplemental search for responsive records. In

determining where responsive records may be located, agency personnel familiar with the issues

raised in Plaintiffs' request were consulted to identify those DEA offices/activities and/or

personnel likely to possess responsive information. It was determined that the Deputy Assistant

Administrator, Office of Diversion, who oversees the DEA Diversion program, was likely to

possess communications responsive to the Plaintiffs' request and the Phoenix, Atlanta, and/or St.

Louis Division Offices may possess responsive records due to known or contemplated

Myrick Dec/aration- Civ. Action No. CV-II-1997-RS - 2 -

1 seizures/surrenders of sodium thiopental from State authorities.

23 6. On April 27, 2011, the Office of the Deputy Assistant Administrator was informed of the

4 Plaintiffs' suit and provided all of the Deputy Assistant Administrator's emails stored in a folder

5 assigned to the topic of sodium thiopental. On that same date, DEA sent search requests to the

6 Phoenix and Atlanta Division Offices requesting a search for records responsive to the Plaintiffs'

7 request. On or about April 29, 2011, the St. Louis Division was contacted to initiate a search for

8 any records responsive to the Plaintiffs' request.

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10 Headquarters Search

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7. In addition to the searches described in paragraphs four (4) and six (6), the Office of

Diversion also concluded that any responsive records would likely exist in the Controlled

Substances Import/Export Database (CSIMEX) and conducted searches of the CSIMEX for

records of actual importation! of Sodium Thiopental since January 1,2010. CSIMEX is a

database used to process and maintain import and export declarations of controlled substances.

Search terms that were used to query CSIMEX included "Sodium Thiopental" and "Thiopental."

Searches of CSIMEX found no records of the actual importation of sodium thiopental, since

January 1,2010, by state officials for the purpose of execution.

8. The Policy and Liaison Section, Office of Diversion, determined that any responsive records

of communication would likely exist in its "Chron Files" saved on a shared drive organized by

month. The office conducted a manual review of its Chron Files for DEA correspondence

responsive to the Plaintiffs' request. All records resulting from this search have been submitted

I Searches were conducted pursuant to item 9 of the Plaintiffs' January 4,2011, FOIA request.With respect to items 10 and II of the request, DEA has not received, nor does it maintain, any recordsregarding the transfer or purchase of sodium thiopental by state officials for the purpose of execution.DEA's records are limited to the receipt of DEA Form 236 for importation/exportation of this controlledsubstance.Myrick Declaration- Civ. Action No. CV-II-1997-RS - 3 -

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and processed under the FOIA.

Atlanta Division Office Search

9. The Diversion Program Manager (DPM) of the Atlanta Division was identified as a DEA

employee likely to have knowledge of the sodium thiopental issue referenced in the Plaintiffs'

request. The DPM is responsible for the oversight of DEA's Diversion Program in the Atlanta

Region and as a result of such duties was aware of two open multi-state criminal investigations in

the region related to the importation of sodium thiopental. Records of DEA's criminal

investigative activities are maintained in criminal investigative case files. To identify the files,

the DPM queried DEA's Investigative Management Program and Case Tracking System

(IMPACT) case management system. IMPACT is a web-based case management system that is

used to establish, record, access, and analyze information pertaining to DEA investigative

activities. This system is only accessible by DEA Field Division Offices and not accessible by

Headquarters. Based on information contained in IMPACT, the DPM identified the relevant

criminal case file numbers and Diversion Investigators. These Diversion Investigators then

retrieved the criminal investigative case files pertaining to the sodium thiopental matter and

conducted a search of their office files, to include emails, for any communications pertaining to

sodium thiopental that had not been incorporated into the criminal investigative case files. All

records resulting from the search of this Division Office have been submitted and processed

under the FOIA.

St. Louis Division Office Search

10. The DPM of the St. Louis Division was identified as a DEA employee likely to have

knowledge of the sodium thiopental issue referenced in the Plaintiffs' request. Based on the

DPM's responsibilities and knowledge, he was able to confirm that, at the time ofthe search

Myrick Declaration- Civ. Action No. CV-II-1997-RS - 4 -

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request, there was no active criminal investigation related to the importation of sodium thiopental

conducted in this region. The DPM manually searched for and retrieved communications related

to sodium thiopental from an email account. All records resulting from the search of this

Division Office have been submitted and processed under the FOIA.

Phoenix Division Office Search

11. There is no DPM at the Phoenix Division Office. DEA employees likely to have

knowledge of diversion activities mentioned in the Plaintiffs' request, including the Assistant

Special Agent in Charge, were identified and asked to search for responsive records. It was

determined that, at the time of the search request, there was no active criminal investigation

related to the importation of sodium thiopental in this region. It was also determined that records

of any communications responsive to the Plaintiffs' request would likely be maintained in these

individuals' email accounts. As a result, email accounts were queried using the terms "Sodium

Thiopental" or "Thiopental" and manually reviewed. All records resulting from the search of

this Division Office have been submitted and processed under the FOIA.

12. Despite the Plaintiffs' contentions, "the issue to be resolved is not whether there might

exist any other documents possibly responsive to the request, but rather whether the search for

those documents was adequate. The adequacy of the search, in tum, is judged by a standard of

reasonableness and depends, not surprisingly, upon the facts of each case" Zemansky v. EPA,

767 F.2d 569,571 (9th Cir.l985) (Citing Weisberg v. United States Dept. OfJustice, 745 F.2d

1476,1485 (D.C. Cir. 1984) (Emphasis in original)). The facts above attest to how and why each

agency search was conducted, demonstrating that DEA has conducted an adequate search

reasonably calculated to uncover documents responsive to the Plaintiffs' January 4, 2011,

request.

Myrick Declaration- Civ. Action No. CV-11-1997-RS - 5 -

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12. As a result of the above described searches, the DEA has processed a total of 277 pages of

responsive records. Detailed accountings of the DEA's processing efforts have been provided to

the Plaintiffs by letters dated May 4,2011, and May 16, 2011. True and correct copies of these

letters are attached as Exhibit A.

Myrick Declaration- Civ. Action No. CV-J J-J997-RS - 6 -

I declare under the penalty of perjury that the foregoing is true and correct.

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DATE

4~JefKatherine L. Myrick

Chief, Operations Unit

Freedom of Information Section (SARF)

Drug Enforcement Administration

Washington, D.C. 20537

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