Let me start off this post by saying that the Freedom of Information Act (FOIA) office at the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) has always been responsive, polite, and professional in my dealings with them. Nothing said in this post is meant to slander them. That said, however, disclosures by OFAC under FOIA can be a problem. One shining example of those problems can be found in the story of Joaquin Mario Valencia-Trujillo, an OFAC Specially Designated Narcotics Trafficker (SDNT) who was tried and convicted on money laundering and drug charges in the U.S.

Valencia-Trujillo had filed a FOIA request following his conviction on those charges and requested twelve categories of documents relevant to his OFAC SDNT designation and the OFAC designation process and procedures. When it took OFAC longer than Valencia-Trujillo wanted to wait to produce those records he filed an appeal to the U.S. District Court, despite OFAC’s protestations that the appeal was premature. During that time OFAC searched and found 638 pages of records responsive to Valencia-Trujillo’s request. Of those, OFAC released 381 of those pages in full, made partial redactions on 235 pages, and withheld the other 22 pages. Those records were released approximately two (2) months after the appeal was filed.

Less than a week after disclosing those documents, OFAC became concerned that the 616 fully and partially disclosed documents from the first release may have contained some of the 22 fully withheld pages. To ensure that the withheld pages had not been inadvertently disclosed, OFAC contacted prison officials where Valencia-Trujillo was incarcerated and asked that they verify that the 22 pages had not been included in the disclosed documents. Prison officials then briefly retrieved the relevant documents and gave Valencia-Trujillo and gave him a confiscation form. The next day, OFAC officials consulted with prison officials and determined that the 22 pages of concern had not been released to Valencia-Trujillo. The following day, prison officials returned the documents to Valencia Trujillo.

Following this incident, Valencia-Trujillo wrote an ex parte letter to the Court claiming that the documents had been confiscated. He also filed a Motion to Compel, which, though denied, prompted OFAC to undertake another search to ensure that it had responded fully to Valencia-Trujillo’s request. Upon further review OFAC identified 353 more pages of records to be released pursuant to the FOIA request. That’s almost half as many pages as OFAC had initially released. In short, initially OFAC had failed to provide nearly a third of the documents responsive to Valencia-Trujillo’s request.

The FOIA process can surely be a useful one for a party challenging their OFAC SDN Designation. However, how can one be sure that OFAC is actually turning over all documents responsive to the request? Well one major problem OFAC has is that documents related to SDN designations often have to be compiled from multiple agencies. As such, its best to file separate FOIA requests on the various agencies involved in the designation process. This may include agencies functioning in a law enforcement/intelligence gathering role, as well as those in a consultative/advisory role. Thus, for example, a party designated under the Columbia Counter Narcotics Trafficking Sanctions may want to file FOIA requests not just with OFAC, but with the Department of State Bureau of International Narcotics and Law Enforcement Affairs, the Drug Enforcement Administration, and so on. The moral of the story is that, failure to be thorough in the FOIA process may leave an SDN seeking his reconsideration without access documents necessary to contest his or her designation, much like Mr. Valencia-Trujillo was.

The author of this blog is Erich Ferrari, an attorney specializing in OFAC matters. If you have any questions please contact him at 202-280-6370 or ferrari@ferrariassociatespc.com.