An attorney for the federal government asked a judge Tuesday to reconsider his recent order declaring that parts of some tightly guarded documents dating back 35 years should be disclosed to a woman searching for clues to her son's 1987 death in Saline County.
The request concerns Chief U.S. District Judge Brian Miller's Aug. 2 order finding that the Drug Enforcement Administration improperly withheld some information requested years ago under the Freedom of Information Act by Linda Ives. Ives sought information from a number of law enforcement agencies in an ongoing effort to find out how her 17-year-old son, Kevin Ives, and his friend, 16-year-old Don Henry, died early Aug. 23, 1987.
The boys were run over by a 4:25 a.m. train in a remote area of Saline County moments after the train's engineer spotted them lying side by side across the tracks, face-up and motionless despite him sounding the train's horn. The engineer said that when the train's spotlight illuminated the boys as it chugged toward them at a speed of 50 mph, he could see that they were lying in a somewhat unnatural position, were covered by a tarp from the waist down, and that a rifle and a flashlight lay beside them.
A controversial finding by the state medical examiner that the boys were run over while in a deep, marijuana-induced sleep led to a second autopsy by an out-of-state pathologist who said he believed they were killed before their bodies were placed on the tracks. The cause of death was never determined, but rumors have persisted for years that the boys, who had told friends they were going "headlighting" for deer that night, may have been killed after stumbling upon a clandestine drug deal or another crime.
There had been reports of low-flying planes seen in the area, and some speculated that the planes were dropping illegal drugs. Pilot Barry Seal, who regularly flew in and out of the Mena Airport in Polk County in the 1980s and was killed in an execution-style shooting in 1986 in Louisiana, had testified in 1985 that he smuggled tons of cocaine from Colombia to drop zones in the Louisiana swamps.
Speculation about whether the boys' deaths were connected to operations that had involved Seal, who was believed to have been an undercover informant for the DEA, have been the focus of at least one book and one documentary, as well as countless articles.
That speculation fueled Ives' requests for information related not only to her son, but to Seal and his activities as well.
In 2016, Ives asked a federal judge to order the various law enforcement agencies to more fully provide the information she had requested over the years, noting that the bits of information she received was so heavily redacted as to be incomprehensible and useless.
Miller dismissed most of the agencies from the suit, but he agreed in November to privately review the unredacted documents at issue from the three remaining defendants -- the Executive Office of U.S. Attorneys, the DEA and the Department of Homeland Security.
In his Aug. 2 order, he said his private review showed that the U.S. attorney's office should also be dismissed from the suit, but that Homeland Security didn't properly search for the information and the DEA improperly withheld some information that was "directly related" to Ives' FOIA requests.
Miller said the DEA could have segregated out some disclosable information from documents that were otherwise exempt from disclosure because their release would invade privacy, reveal the identities of confidential sources or place people in danger.
But in a motion filed Tuesday, Assistant U.S. Attorney Stacey McCord of Little Rock said the court "failed to properly apply" an exemption that pertains to information provided to the DEA by confidential sources.
Miller's order said the information that the DEA improperly withheld is contained in two investigative reports, one prepared on May 4, 1983 -- more than four years' before the boys' deaths -- and the other prepared on Jan. 24, 1995 -- more than seven years after the deaths.
He ordered the DEA to provide him -- by Friday -- with suggested ways to redact the confidential information while supplying the rest of the information to Ives. If he agrees with the suggestions, the documents will be provided to Ives after those changes have been made. Otherwise, Miller said, he will make the redactions himself and then permit the DEA to object.
But McCord argued that "the information contained in the [reports] was properly withheld or redacted." She said she believes Miller didn't take into account the second part of a rule that exempts information provided by a confidential source to law enforcement during a criminal investigation.
McCord argued that "if the source provided information under an express assurance of confidentiality or in circumstances from which such an assurance could be reasonably inferred," the source is exempt from disclosure.
"The question," she wrote, citing 1993 U.S. Supreme Court case law, "is not whether the requested document is of the type the agency usually treats as confidential, but whether the particular source spoke with the understanding that the communication would remain confidential."
"A source is deemed confidential if the source furnished information with the understanding that the FBI would not divulge the communication except to the extent the Bureau thought necessary for law enforcement purposes," McCord wrote, adding, "Courts have concluded that the violence and risk surrounding drug trafficking warrant an implied grant of confidentiality for a source."
She cited a declaration made by the DEA to the court that the five-page 1995 report "contains information provided by an individual who was close to the illicit trafficking in cocaine and marijuana of Barry Seal and others."
The report also "contains names and information about third parties and special agents and law enforcement personnel" which are exempt, she said.
"Likewise," McCord argued, the 1983 report "states at the bottom of page two, that an informant provided information to local law officials. This four-page [report] consists of information obtained from the local law officials. As stated in [case law], disclosure of confidential information could hinder present and future law enforcement investigations and could affect relations between local and federal law enforcement agencies."
McCord said that despite the arguments of Ives' attorney, R. David Lewis of Little Rock, that enough years have passed now to render irrelevant any disclosures of old information, the exemption "is not extinguished with the termination of an investigation."
She said the release of the information in question would also constitute "an unwarranted invasion of personal privacy when balanced against the public interest" and could jeopardize the lives and safety of third parties, including law enforcement agents.
The DEA also asked Miller to extend the deadline to respond to his order beyond Friday, noting that attorneys involved in the case were out of town when the order was issued and need more time to confer.
Metro on 08/15/2018
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