U.S. Department of Justice Of?ce of the Inspector General June 16, 2016 Brad Heath bheath@usatoday.com Subject: Freedom of Information/Privacy Act Request Dear Mr. Heath: This responds to your Freedom of Information Act request to the Of?ce of the Inspector General (OIG). Speci?cally, your request seeks ?a complete copy of the Inspector General?s ?nal report referenced in Findings Concerning the Use of Amtrak Employees as Paid Con?dential Sources.? The responsive report has been reviewed. It has been determined that certain portions of such report be excised pursuant to the Freedom of Information Act, 5 U.S.C. ?552(b)(6) and Consequently, please ?nd enclosed that information which can be released pursuant to your request. If you are not satis?ed with my response to this request, you may administratively appeal by writing to the Director, Office of Information Policy (OIP), United States Department of Justice, Suite 11050, 1425 New York Avenue, NW, Washington, DC 20530?0001, or you may submit an appeal through OIP's FOIAonline portal by creating an account on the following web site: Your appeal must be postmarked or electronically transmitted within 60 days of the date of my response to your request. If you submit your appeal by mail, both the letter and the envelope should be clearly marked ?Freedom of Information Act Appeal. For your information, Congress excluded three discrete categories of law enforcement and national security records from the requirements of the FOIA. See 5 U.S.C. 552(c) (2006 85 Supp. IV 2010). This response is limited to those records that are subject to the requirements of the FOIA. This is a standard notification that is given to all our requesters and should not be taken as an indication that excluded records do, or do not, exist. rely, ernment Information Specialist Office of the General Counsel Department ofJustiee Of?ce ofthe Inspector General REPORT OF INVESTIGATION SUBJECT NUMBER no.1 San Francisco Area ()llice Drag linloreement Administration stuvrt's Field Of?ce xii-m UPI-ZN PENDING rum-2 ) PREVIOUS N0 Component DEA Dale of Previous Report: [1 Other SYNOPSIS The Department ot?Justice Office ol'the Inspector General initiated this investigation ttpon the receipt of ation from the Amtrak Office of Inspector General (Amtrak alleging that Amtrak? vas acting as a Drug Enforcement Administration (DEA) Confidential Source (CS) and providing con 1 ential Passenger Name Reservation information to DEA without Amtrak approval. According to the information provided by Amtrak 016. the Amtrak Police Department (APD) and DEA participate in a joint task force whose goal is to inlerdict passengers traf?cking contraband on Amtrak trains. As a task force member, APD provides confidential PNR information to DEA at no cost. therefore, DEA CS funds were being wasted ifthc DEA agents were paying_ to provide information. The 016 conducted this investigationjointly with Amtrak OIG. The (NO also investigated whether_ and- violated DEA policy by requesting that provide them with PNR information when doing so constituted a violation of corporate policy applicable to and whether they exceeded the terms of proactively requesting information t'ron CS classification as a ?Limited Use Confidential Source" by The OIG investigation concluded that- and - paid- for information that was available at no PREPARED SPECIAL AGENT om; November 4, 2015 DIG Form (fitment-dint: Farm 25-717) Puritans ntht- Report of Investigation may rm! be areon under me freedom hy?urmimutt Act (5 ?St 55 2) am! the Privacy Act (5 553?). cost to the Government in violation ofChapter 5 oflhe Code of Federal Regulations, Section 2635.704, relating to tlte use of Govermnent preperty. thereby wasting substantial government funds. Speci?cally. DEA records slim? began receiving payments from - as a CS in 1995. Over the next 20 years the DEA paid $854,460 from both asset forfeiture funds and government funds. Additionally, while conducting this investigation, the 01G learned that an APD of?cer assigned to a DEA task force in recruited an Amtrak civilian employee as a DEA CS. DEA records show that this CS was paid $9,701 with DEA asset forfeiture funds for providing PNR information that resulted in interdiction actions. The APD of ftcer acknowledged to the OIG that he could have obtained the same information from this Amtrak employee at no cost without having registering this person as a CS. The CS was deactivated in 2014. The OIG did not identify any DEA policy that would prohibit- and - from requesting and using information that- obtained in violation ofAtnu'ak corporate policy. Accordingly, the 016 did not ?nd that- and - violated DEA policy by using con?dential PNR information that- obtained in violation of Amtrak corporate policy. However, consistent with the 016?s recently issued audit of CS program (Audit of the Drug Enforcement Administration's Con?dential Source Policies and Oversight of Higher-Risk Con?dential Sources, Audit Report 15-28; the 010 recommends that DEA ensure that its CS program policies are consistent with Attorney General Guidelines. The 010 investigation further concluded that by proactively requesting information from-- and - exceeded the terms of- designation as a Limited Use Con?dential Source as de?ned in the DEA Agent?s Manual, Subchaptcr 6612.22. The DEA Agent?s Manual states that a Limited Use CS must provide information to the DEA independently, without DEA direction. - said both - and - directed him to conduct speci?c PNR checks for them. Lastly, the 016 determined that DEA documents used tojustify payments to- and the -CS, which were submitted to DEA management for approval by the line agents/APB of?cer, included only generic information that would not have alerted DEA management to the fact that the agents/APD of?cer were requesting authorization to pay Amtrak employees or that such information could have been obtained from Amtrak at no cost. The 016 is providing this report to the DEA for its review and action it deems appropriate. Page 2 Case Number: Date: November 4. 2015 ADDITIONAL SUBJECTS M3 comma Date: W4, 2015 DETAILS OF INVESTIGATION Predication information ?'onl the Amtrak O?ice of Inspector General (Amtrak OIG) alleging that Amtrak was acting as a Drug Enforcement Administration (DEA) Con?dential Source cs to co dential er Name Reservation information to DEA ial ABM Win. up . moms to 'on provided byAmtrakOIG,tlleAnlttak Police Department (APD) and DEA participateina jointtaskfolcewhosegoal onAlntlaktrains. Asatasltfome wasted if the were paying- to provide PNR information. The 010 conducted this investigation joi Amtrak 016. The Department of Justice O?'ice of the Inspector General (016) initiated this investigation upon the of and- violated DEA policy by requestingthat them with PNR information when so constituted a violation of corporate policy applicab to whether they exceeded the terms 0 CS classi?cation as a ?Limited Use Con?dential Source lle information ?om him. Investigative Process The 010?s investigative e?orts consisted of the following: - Review of the following: DEA Agent?s Manual 5 CPR 2635.704 Peg? Casanan Date: m4. 20l5 Background ?Ihis investigation involved an Amtrak employee recruited by the DEA as a CS. Amtrak is a publicly funded railroad service operated and managed as a for-pro?t corporation. Although receiving public funding, individuals working for Amtrak are not considered employees of the federal government. However, according to the information provided by Amtrak OIG, Amtrak employees are required to report suspicious information acquired on the job to the APD. Moreover, Amtrak?s Ethical Conduct and Con?ict of Interest Policy prohibits employees ?om using information learned in the cornea of their Amtrak ployrnent for private gain. APD participates withDEAinajointtaskforcewhose goal isto interdictpassengers traf?ckingcontrabandon Amtrak trains. As a task force member, APD provides such suspicious information reported by Amtrak employees, including con?dential PNR information, to DEA at no cost. and Used Government Funds to Pay For Information That Was Available at No Cost to Law Enforcement Chapter 5 of the Code of Federal Regulations, Section 2635.704, relatingto the use of Government property, This sectionde?nes?property?ms?uan intangibleinterest The 016 and Amtrak OIG interviewed who stated that andtrackp resavations. statedhemet theAmtr-ak station. saidthatatthattrme, edhimtonmapassenger?sPNRusing Arrow. saidthattherea?er, illegal introducedhimto . informationfor and-onaregularbasis,-saidhedi - acknowledged that over the years, he received approximately $854,000 in award money from- for PNR information he had provided. - acknowledged he violated Amtrak?s Ethical Conduct and Con?ict of Interest Policy that prohibits using company information obtained by virtue ofhis employment with Andrak for pasonal gain. The are reviewed DEA doernnenrnaen relating to- including his Con?dential Source Pro?le, Con?dential Somoe Establishment (Form DEA-512), Requests for Payment (Faun DEA-499), and Vouchers for Purchase of Bvidmce or Payment to Con?dential Source (Form DEA-103). From the documents that were provided by DEA, it was determined that: Page: cucumber. - Date: Novemberd. zors was recruited by in 1995. Based on available CS establishment forms, DEA classi?ed as a limited use was paid a total of $854,460. Of that amount, approximately $713,210 came from asset forfeiture awards. These awards represent a percentage of the total value of the seizures that resulted from information; The remainder of the money paid to - $141,250, represents payments for information that came primarily ?'om the DEA budget; Vouchers for Payment were completed almost exclusively and Requests for Pa ent were generally completed by either or with the vast majority completed by A very few of the requests were comp eted by EA agents from other parts of the country who had received information from The requests, which were each signed and approved by DEA group supervisors, Assistant Speci Agents in Charge (ASAC) and Special Agents in Charge (SAC), have a ?Justi?cation For Award? section. The information doctunented in this section by the asmrAmtr-akanployeeor zurecamefromAm Rather,itstatedgenerically that the CS provided original information that led to a seizure. The 010 learned that Section 6612.22 ofthe DEA Agents Manual concerning ?Limited Use Con?dential Source" precludes the registering of individuals who are lo of 0.8. law enforcement agencies who are working solely in their of?cial capacity with Since was not employed by a government agency. nor was he a lawenforcement o?icer, DEA would not have been precluded from registering- as a CS. compelled. -con?rmedherecruited asaCS. explainedhehasnotreceivedany actiomble information from APD inthe l9 hehasworked interdiction eases. -saidthattherewas butthathehasa? goodAmtr-akguyhere,? althoughthis Amtrak contact is not able to run the Amtrak computer. said hetha'eforerelied on- toprovidePNRinformation. Toillustrate said he became aware at some point that APD was attempting to learn the identity a? CS for disciplinary action MthinAmtr-akand believed they were doingso for?nan reasons. explainedthat because ofthe information prov: ed interdictionsuspects wereapproached said he believes thatspeci?c memba's of the APD,who Becauseof thisinformation, Pages cucumber. - Date: November-4. 2015 stated that - excelled at utilizing the Arrow database to look for indicators of drug tra?icking and was "one of the most valuable interdiction informants that DEA has ever known." - characterized- as a "goldmine" that was responsible for the seizure of millions of dollars during interdiction investigations. - said that because of success, he referred - to - who was working interdiction investigations in . The interviewed the Amtrak identi?ed. He con?rmed to the OIG and Amtrak 010 that in 2012, he recruited an Amtrak employee as a CS under the authority of the DEA task force. The Amtrak PD of?cer said the CS was utilized for about a year and was paid $9,701 with DEA asset forfeiture funds for information that resulted in three different interdiction actions. The Amtrak PD officer said the CS provided valuable information that he otherwise would not have had. As an example, the of?cer explained that the CS would provide him a name, physical description, and PNR information of a customer that purchased a long distance ticket at the last minute with cash, an indicator of possible illegal activity. The of?cer said if he was ?on the tracks? at the time he would approach the suspect to determine if the person was transporting drugs or drug money. This would sometimes lead to a positive hit and an arrest or seizure. The of?cer stated that the Amtrak employee provided him similar information prior to signing her up as a DEA CS. The OIG asked the of?cer if he could have continued to get information from the Amtrak employee without signing this person cost. The of?cer reSponded, ?Possibly yes. I don?t think there was a need to sign. up, but it just, I really can?t answer that question.? The of?cer said he obtained approval to sign up the CS from his DEA group supervisor, and that the DEA ASAC and SAC subsequently signed off on it. The OIG reviewed the three DEA Requests for Payment that were completed by the Amtrak PD of?cer in connection with payments made to the - CS and determined that the forms were also signed by a DEA group supervisor, ASAC, and SAC. In the justi?cation section of each form the of?cer wrote that the CS provided original information that led to the seizure of United States Currenc USC . Then speci?cally, ?The USC was seized after the CS alerted members of the the travel itinerary of. The genericjusti?cations provided by the Amtrak PD of?cer for payments made to the CS do not indicate the CS was an Amtrak employee who could have provided the information to the Amtrak PD of?cer at no cost. who stated that at one time, DEA in An APD detective had been the assigned task force of?cer. said the APD detective was supposed to be available to access the Arrow system for DEA interdiction investigations but that it was impossible to contact him on nights and weekends. - said the DEA asked the APD detective to leave the task force in 2008. said that since the detective?s removal, there has been no APD participation on the_ task force and the agreement with APD expired years ago. - said he has not received any PNR information from the APD since 2008. The OIG conducted a volunta interview of - said that since he did not receive PNR information from the APD, he began to rely on to provide him with actionable PNR information. - said that for at least the last 5 years, he contacted almost daily. - characterized - as an incredibly vital part of interdiction efforts whose information was invaluable. The OIG reviewed a State and Local Task Force A reement dated September 4, 2003, which established a DEA and APD task force in the region. According to this agreement, the APD Page 7 Case Number: - Date: November 4. 20 [5 to detailing one APD officer to the task force. Amtrak 016 con?rmed that the APD detective identi?ed by had been a task force o?icer (TFO) until October 2008 when he was removed by DEA. According to trek 016, the APD did not assign another of?cer to the task force. The 010 and Amtrak OIG interviewed the APD detective who said there has been much animosity between APD and DEA in general, and between him and speci?cally. The detective said there was little information sharing between APD and DEA, an DEA did not contact him with requests for information from the Arrow system. Likewise, the detective stated that he would not seek out and share information from Arrow with DEA. The APD detective said that much of the problem between the agencies has to do with arrest and seizmestatistics, aswell asassetforfeiture sharing. The detective saidthatovertheyeam-hasmade disparaging remarks about the APD and generally treated APD with disrespect. The detective stated that other DEA agents nationwide frequently operate on the trains without notifying the APD. The APD detective said that in 2008, he was removed from the task force because he could not commit to a hill-time presence. The 010 interviewed Amtrak Police who stated that APD has a good working relationship with DEA and has partnered with them on numerous forces-aid the APD provides PNR information to DEA at various locales throughout the United States. .aid APD regularly shares PNR Mn with federal, state, and local law enforcement agencies at no cost to the agencies. According to order to obtain PNR information, law enforcement agencies need to have a nexus to a criminal investigation and a violation of law, and request the information throu the APD Regional Detectives or the involved with requesting the information. Law enforcement agwcies can request PNR information in writing, e?maihorwithapbonecall. generalpublic. In addition, the information, paid for by the DEA, was available for ?ee from Upon reviewingadratiof this report. disagreed with, among other things, APD yshared PNR information with the federal, state, and local law enforcement. stated that Amtrak would not provide the information he needed for his investigations through a PNR request and, thaefore, the information he obtained was not available for free to the DEA. 010?: Conclusion investigation concludedthat and gmemnmatwas available atno cost to the DEA in violation of Chapter 5 Co 0 Regulations, Section 2635.704, relating to the use of Government property, thereby wasting substantial government funds. More speci?cally, the 016 investigation determined that PNR information is available for free to law enforcement and that and could have obtained speci?c sen data from the APD instead of using asset forfeiture 1'55 to get the information ?om . violated Amtrak?s corporate policy by providing DEA con?dentialPNRinformation. know-howto Pagc? enema: Date: Novemberd, 201$ produce the same kind of actionable intelligence tlrat- was producing, their resort to enlisting an Amtrak employee as a CS at the substantial expense of government funds was wasteful. They should have raised their concerns to DEA management who could have attempted to the problem through the APD chain of command, possibly even obtaining Amtrak authorization for to o?cially assist the DEA at no cost to the government. The 016 recommends that DEA improve its coo 'on with Amtrak to enhance its access to information that could substantially assist mission. Apart from and misuse of government ?nds, this investigation identi?ed potential weaknessesln stask rceprogram. considered for placement as TFOs have adequate training on the Arrow system so they can appropriately contribute to the effort. - Lastly,the010 determinedthatDEA documentsusedto justify payments to-andthe cs, which were submitted to DEA management for approval, included only gmeric infer-matron that we not have employees orthatsuchinformationcould Use of PNR Provided by - in Violation of Amtrak Corporate Policy Is Not a Violation of DEA Policy The are investigated whether- and- violated DEA policy by requesting that- provide lit with PNR information in violation of Amtrak corporate policy. The 016 was unable to identify any speci?c DEA policy that would preclude DEA agents from using information that a CS obtained in violation of his own corporate policy. interview, he was shown a copy of Amtrak?s Ethical Conduct and Con?ict of Interest Policy. ?Covered Individuals are prohibited ?om using con?dential Company information or any con?dential information of others obtained by virtue of their employment with Amtrak, for personal 83h? violatingAmtlakpolicyby using Arrowto provide informationtoDEA without authorization, butlrefelt it washiscivic dutyto report suspecteddrug smugglers. orshe is bound by all ofAmtrak?s policies (Policy 3.1.x) regarding computer usage. The warning states, in part, that electronically stored information created or utilized through Amtrak?s computer system may only be withAmtralcpolicies. could lead to disciplinary action, including termination. - admitted he is aware ofPolicy 3.1.x. M9 mum Date: Novemberd. 10l5 told the 016 he believed use of the Arrow system to provide DEA information was likely in vro on of Amtrak policy and that could be reprimanded by Amtrak for releasing PNR information to DEA. of the Arrow system without authorization may lead to disciplinary action. Because the OIG could not speci?cally identify a DEA policy precluding its agents from requesting that a CS violate his employer?s policies by rovidin con?dential corporate information, the 016 interviewed DEA to determine of?cial position on this matter. stated that DEA licy would not have precluded use ofthe information provided by- erized as a Limited Use Con?dential Source, who is de?ned as a ?professional? business person ora?tipster.? aid-wasabletoutilize the interdiction subjects and notify DEA with this information. stated that 'on was that there was no statutory restriction prohibiting voluntary disclosure ofAmtrak records asioha?lt?lldone. - quoted Amtrak?s published reservation ofrights, which reads as follows: ?We reserve the right to disclose personal information when we have reason to believe that disclosing this information is necessary to identify, contact. bring or defend against legal action involving someone who may be violating this Policy or who may be causing injury to or interference with. . .Amtrak's rights or property, other Amtrak users or anyone else who could be harmed by such activities. We may disclose or access account information for administrative or other purposes that we deem necessary to maintain or immve our products, services or the operation of the site, for law enforcement purposes. or when we believe in good faith that the law requires it.? 016?: Conclusion TheOlGdidnot?ndthat-and- obtained in violation of Amtrak corporate policy. However. consistent with the 010?s recently issued it of DEA's CS program (Audit of the Drug Enforcement Administration's Con?dential Source Policies and Oversight of Higher-Risk Confidential Sources, Audit Report 15-28; the 016 recommends that DEA ensure that its CS program policies are consistent with Attorney General Guidelines. and - Exceeded the Limits of - Designation as a Limited Use Con?dential Source The ore investigated whether- and- exceeded the tenns- DEA cs classi?cation as a Limited Use Con?dential Source by proactively requesting information ?'om him. The DEA Agent?s Manual, Subchapter 661, regarding Information Sources, delineates the policy and procedures for the use of con?dential sources of information. It de?nes the qualifying criteria for a Limited Page?) cum-m Date: remnants Use CS, including that the person may be recruited by DEA but must provide infonnation independently (without direction by DEA). Subchapter 6612.22 of this manual provides the de?nition of a Limited Use Con?dential Source as follows: . ?Ifa CS is being established for payment purposes only and is a ?professional? business person or a ?tipster,? certain steps in the CS establishment and maintenance process are not required. An example of a ?professional? business person is an airline employee. An example of a ?tipster? is the concerned citizen who provides information about drug related activity in his/her neighborhood. For the C8 to fall into this category, the following (among others) must be established: 1. This person may be recruited by DEA but must provide information independently (without direction by DEA). 2. DEA anticipates rewarding this person for infomation/services rendered.? During his 016 interview, admitted that was ?following my instructions? when searching the Amwdatabaseforintelligence. said providedmostofthe infoma?ononhisowmbutonceor twiceamonthhewouldgoto torequestspeci?cinfonnation. -explainedthatDEAagents?'om all overthe called him with speci?c information abomaparticulartargetandasked if his could assist. would pass this information to- who would then run computer searches. Amtrak reviewed Amtrak e-mail account for 2010 to 2013 and identi?ed e-mails assistance in locating or identifying speci?c DEA targets. Altho forinfonna?omhestatedthat sitar somceandhasbeenin almoa Asstatedpreviousl inthisreport, the over$800,000to Of that amount, y$l41,250waspayme1u for information resultingfrom ?l'hisis demonstrated by the classi?cation of the money as paymentversus an award. Conclusion 'lhe 016 concluded that by proactively requesting information and- exceeded the m- designation as a Limited Use Con?dential Source as de?ned in the DEA Agent?s Manual. Subchapter661222. Page" Cmebm - Data: simmers