                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


GRISELLE MARINO,

              Plaintiff,

       v.                                                    Civil Action No. 06-1255 (GK)

DRUG ENFORCEMENT
ADMINISTATION,

              Defendant.


                                      MEMORANDUM OPINION

       Plaintiff Griselle Marino                           ("Plaintiff" or "Marino")                brings

this      action      against              the        United         States        Drug        Enforcement

Administration        ("DEA" or "the Government")                               under the Freedom of

Information        Act        ( '' FOIA") ,       5        u.s.c.     §     552.          Marino        seeks

documents      related          to     a      Government             cooperator          who     testified

against her deceased ex-husband, Carlos Marino, at his trial for

drug conspiracy in 1997.

       This matter is before the Court on the DEA's Renewed Motion

for Summary Judgment                 [Dkt.       No.       65].      Upon consideration of the

Motion,      Opposition,             Reply,        Sur-reply,             oral     argument        at     the

Motion      Hearing      of      February             5,     2014,        and    the     entire     record

herein,      and   for        the     reasons              stated     below,       the     Government's

Motion is denied.
I.      BACKGROUND

        A.         Factual Background1

                   1.      The Criminal Prosecution

        In         1997,        Carlos      Marino          was     convicted       of         narcotics

conspiracy in the Northern District of Florida and sentenced to

365 months in prison.                      The Government's primary witness at his

trial    was        a   co-conspirator           named       Jose     Everth Lopez         ("Lopez").

Lopez        testified           that     he     and    Carlos        Marino       worked       for     an

international              drug       importation       and       distribution      ring       known    as

the "Company," which was run out of Bogota,                                   Columbia by a man

named Pastor Parafan-Homen.                           Pl.'s Opp'n Ex.          B   (Trial Tr.)          at

16, 20 [Dkt. No. 66-5 at ECF pp. 6-7].

        Lopez stated that his job was to transport cocaine in flat-
             ~~




bed trailer             trucks        from Texas       to     South    Florida,        where     he was

paid by Carlos Marino.                     Id.    at 16,      20-27,     31    [Dkt.     No.    66-5 at

ECF pp.           6-15].        Lopez further testified that Carlos Marino was

the   "banker"             or     "money       man"    of     the     organization,            and    that

whenever           money        was    spent     by     the       conspiracy           whet.her        for

1
  Unless otherwise noted, the facts are undisputed and drawn
either   from  the  parties'   briefs,   the  Complaint,  or  the
Government's Statement of Undisputed Material Facts submitted
pursuant to Local Civil Rule 7 (h).    For ease of reference, the
Court's citations to the exhibits appended to Plaintiff's
Opposition include, in brackets, the page numbers supplied by
the Court's Electronic Case Filing ("ECF") system.


                                                      -2-
drivers,       vehicles, warehouse space,                         or other expenses - it came

from Marino.               Id.    at 33,      36,        39,    191-92     [Dkt.       No.     66-5 at ECF

pp.   3-4,      18,    21-22];       see also Pl.'s Opp'n Ex.                          F (Order,        Report

and     Recommendation             on     §    2255        petition            in    United      States        v.

Marino,        3:97cr84/RV           (N.D.          Fla.        Oct.      4,        2002))      ("Report        &


Recommendation") at 6 [Dkt. No. 66-9].

        The Government relied heavily on Lopez's testimony in its

opening and closing remarks and at                                sentencing.                As Magistrate

Judge     M.    Casey           Rodgers       later       observed         on       collateral         review,

"Lopez was           the    government's            key witness            at       trial     and was         the

primary witness who testified about defendant's involvement in a

conspiracy           that       actually      moved        cocaine."                Pl.'s     Opp' n    Ex.     F

(Report        and    Recommendation)               at     7     [Dkt.     No.        66-9].       Although

evidence       from        an    unrelated       investigation                 revealed        that     Carlos

Marino       had       been       engaged           in         separate        discussions             with     a

confidential informant named Edwin Rivas about importing cocaine

into the United States through the Miami airport,                                            this plan was

never carried out,                and there was little evidence linking it to

Parafan-Homen's             group.            See        id.     ("CI     Rivas        testified         about

discussions he had with the defendant about cocaine importation,

but the importation plans were never realized."),

      At sentencing,               the trial Judge relied on Lopez's testimony

to conclude that Carlos Marino was a "station manager in Miami"
                                                     -3-
who "transfer[red]       operations from Mexico and Houston and other

parts of the United States,          including a number of major cities,

east coast and west coast."            See Pl.'s ·Opp'n Ex.         B (Sentencing

Tr.)   at    11:20-12:24    [Dkt.   No.   66-5    at    ECF pp.    29-30].        This

finding provided the basis for the Judge to impose a three-point

sentencing enhancement under the Sentencing Guidelines.                    Id.

       Lopez later admitted at the 1998 trial of Parafan-Homen in

the Eastern District of New York that he lied multiple times at

Carlos Marino's trial.           Specifically,        at Marino's trial,         Lopez

purported to be      a   low-level participant          recruited to work          for

the Company in late 1995, whereas he later admitted that he had

been involved in the conspiracy since 1988,                 had met personally

with    Parafan-Homen      on   several   occasions,      and     had   attended     a

small meeting of high-level conspirators in Bogota,                     Columbia in

1994 to discuss reorganizing the criminal enterprise.                     See Pl.'s

Opp' n Ex.    C at 3623-3627,       3665-66.     (trial transcript in United

States v. Pastor Parafan-Homen, CR 95-0722)               [Dkt. No. 66-6].

             2.   Collateral Proceedings

       After his conviction was affirmed on direct appeal in 1999,

Carlos Marino filed a motion to vacate, set aside or correct his

sentence pursuant to 28 U.S. C.           §   2255.     See Pl.'s Opp' n Ex.         A

(Joint Appendix)    at 271 [ Dkt. No.         66-2] .   He argued, inter alia,

that the Government committed misconduct by failing to correct
                                       -4-
Lopez's perjured testimony at his trial.                               Id.     at 291-98          [Dkt.

No. 66-3] .          He further asserted that the Government violated its

obligations           under       Brady     v.   Maryland,      373     U.S.     83   (1963),        by

suppressing           notes        of   pre-trial        interviews      with     Lopez,         which

could have been used to impeach Lopez at trial and demonstrate

that his involvement in the conspiracy was more extensive than

he depicted.            Id.       at 277-282,       284-90     [Dkt.    No.     66-2].       Carlos

Marino     also        claimed          that     the     documents      suppressed          by     the

Government           would    have      shown     that    he    (Carlos        Marino)      was    not

involved in any of the operations of the conspiracy outside of

Miami,     and that it was Lopez,                  not Marino,         who was a manager of

the Parafen-Homen organization.                        Id. at 296-298 [Dkt. No. 66-3].

      On    October          4,     2002,      Magistrate      Judge    Rodgers       issued       his

Report     and        Recommendation             recommending        that      Carlos    Marino's

motion     for       collateral         relief     be    denied.        While     acknowledging

that "Lopez's testimony at the Parafan trial, in particular that

detailing        his    historical             involvement      in     the     conspiracy,         was

'vastly different'                from that given at the defendant's trial," he

determined that              the    "differences         did not      absolve      defendant         of

any   responsibility               or   involvement       in   the     conspiracy."              Pl.'s

Opp'n Ex.        F    (Report and Recommendation)                  at 53      [Dkt.   No.    66-9].

He further reasoned that "the jury was on notice that Lopez was

not the most credible of witnesses" because there was evidence
                                                  -5-
at    trial    "that       Lopez       had    lied      on    more        than     one   occasion          to

government agents [.]"                 Id.    at 52.          He then concluded that the

falsehoods         in     Lopez's       testimony            did     not     warrant          collateral

relief    because         they     either       were         "not        central    to       the     jury's

assessment of defendant's role in the offense,                                     or were unknown

to the government at the time of defendant's trial."                                      Id. at 51.

              3.         The FOIA Request

       In May 2004, Carlos Marino, acting pro se, submitted a FOIA

request to the DEA to obtain "a copy of all documents indexed

under No.      3049901 of the                [DEA' s]    Narcotics           and Dangerous               Drug

Information System (NADDIS) ."                    Letter from Marino to DEA FOIA/PA

Unit, dated May 4,              2004    ("FOIA Request")                 [Dkt. No.       5-l, Ex. A].

NADDIS    numbers         are     unique       multi-digit               numbers     that          the    DEA

assigns to the subjects of its investigations.                                     They permit the

DEA to "retrieve []             investigative reports                     and information"               from

its    investigative            database        regarding            a     subject       of    interest

without   searching          by    name.         See         First       Supplemental          Decl.       of

Katherine L.        Myrick       ("First Supp.           Myrick Decl.")              !   6    [Dkt.       No.

65-2] .       It    is    undisputed          that      Carlos           Marino     suspected            that

3049901 was the NADDIS number assigned to Lopez,                                    and therefore,

his request effectively sought the DEA' s                                 investigative file on

Lopez.



                                                 -6-
      The DEA categorically denied Carlos Marino's request.                                                  Its

response     took       the        form    of     a    "Glomar       response,"          in       which       an

agency      states          that     it    "can        neither       confirm          nor     deny"          the

existence       of     responsive          records       on    the    grounds          that       to    do    so

would reveal information exempt from disclosure under FOIA. 2

      The       DEA    reasoned           that    disclosing          even       the    existence             of

responsive       documents          would        invade       the    privacy interest                  of the

individual assigned to NADDIS number 304 9901 by revealing that

he   or   she    had been           the    subject        of    a    DEA   investigation.                    The

agency      therefore            informed        Carlos        Marino      that        it     would          not

process his request unless he provided either proof of death of

the individual assigned to NADDIS number 3049901, or an original

notarized privacy waiver.                    See Undated Letter from DEA to Marino

[ Dkt . No. 5-1, Ex. D] .

      On August             9,    2004,    Carlos       Marino       filed       an    administrative

appeal    with        the        Department       of    Justice's          ("DOJ"'s)          Office          of

Information           and        Privacy        ("OIP"),       arguing       that           "no        privacy

interest     would          be     invaded       by    disclosing          the    information"                he

sought because,             as he pointed out in his original request,                                    that

information had already been put into the public domain at his

2
  The term "Glomar response" is derived from a case in which a
requester sought records relating to an underwater sea craft
called the "Glomar Explorer."   Nation Magazine, Wash. Bureau v.
U.S. Customs Serv., 71 F.3d 885, 888 n.2        (D.C. Cir. 1995)
(citing Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976)).
                               -7-
trial and the trial of Parafan-Homen.                                 Letter from Carlos Marino

to OIP,       dated Aug.             9,     2004,       at 2       [Dkt.    No.     5-1,       Ex.    E].      On

January 18,           2005,      the OIP affirmed the denial of the request,

again stating that to confirm or deny the existence of records

"could        reasonably            be      expected          to     constitute           an    unwarranted

invasion of personal privacy" under Exemption 7(C).                                             Letter from

OIP to Carlos Marino, dated Jan. 18, 2005 [Dkt. No. 5-1, Ex. G] . 3

        B.     Procedural Background

        On July 12,            2006,        Carlos Marino filed this action seeking

judicial       review          of     the       DEA's     decision.               [Dkt.    No.        1].      On

October       5,     2 00 6,    the        DEA    filed        its    first       Motion        for    Summary

Judgment.          [Dkt.       No.        5].       On    March       16,     2007,        Judge       Ricardo

Urbina,       the     District            Court        Judge       previously        assigned         to     this

case,        summarily         granted           the      Government's             first        Motion        for

Summary        Judgment             after        Carlos         Marino       failed            to     file     an

opposition.            Carlos         Marino           then moved          for     reconsideration             on

April 17, 2007 [Dkt. No. 12] and for relief from the judgment on

November       30,      2009         [Dkt.       No.     16].        Judge        Urbina        denied       both

motions on August 5,                  2010.            See Marino v.          DEA,    729 F.          Supp.    2d

237     (D.D.C.       2010)          ("Marino          I").        Judge     Urbina        reasoned          that

3
  The OIP also determined that the requested records were exempt
from disclosure "pursuant to 5 U.S. C.      §  552 (b) ( 2) , which
concerns matters that are related solely to internal agency
practices."   [Dkt. No. 5-1, Ex. G].   However, the DEA has not
pursued that exemption in this case.
                               -8-
granting Carlos Marino relief from the judgment would be futile

because he lacked any meritorious counterargument to the DEA' s

Glomar response.          Id. at 243-245.

       On appeal,        the D.C.            Circuit reversed.                    Marino v.      DEA,     685

F.3d 1076       (D.C.    Cir.          2012)        ("Marino II").            The Court of Appeals

emphasized       that     the          only        issue       under        consideration         was     the

propriety       of      the     agency's              Glomar       response,           which      is      "an

exception to the general rule that agencies must acknowledge the

existence       of    information                  responsive          to     a    FOIA   request         and

provide specific,             non-conclusory justifications for withholding

that     information."                 Id.     at     1078      n.1      (citation        and     internal

quotation marks omitted).

       The      Court         of        Appeals            held         that        Carlos       Marino's

identification of public records                               linking NADDIS number 3049901

to    Lopez    presented           a    plausible              basis     to       overcome      the     DEA's

Glomar        response        because              "[u]nder            FOIA' s       'public      domain'

exception, an agency may not rely on an                                     'otherwise valid [FOIA]

exemption to justify withholding information that is already in

the    'public       domain.'"               Id.     at    1080        (citing      Students      Against

Genocide v. Dep't of State, 257 F.3d 828, 836 (D.C. Cir. 2001)).

The panel emphasized· that,                        "[e]ven if later in litigation the

DEA    showed    legitimate              grounds          to    withhold          every   document         in

NADDIS file No. 3049901, Marino has raised a meritorious defense
                                                     -9-
that    the     DEA' s      justification             for    refusing       even    to    confirm the

file's         existence           has       been          undermined        by      prior       public

disclosure."             Id. at 1082.

        On remand and reassignment of the case to this                                     Judge,      the

Court granted relief from the prior judgment,                                     denied the DEA' s

Motion for Summary Judgment,                       directed the DEA to file an Answer

to   the      Complaint,         and       set    a     schedule      for    limited         discovery.

[Dkt. No. 49].

        The    DEA' s      Answer,         filed      on     March    25,    2013,       continued      to

assert Glomar as its sole substantive defense.                                       [Dkt.     No.    53].

However,       on May 7,           2013,    the Court held a                status conference at

which the Government informed the Court for the first time that

it   was      not     certain       whether        it      would     continue       to   pursue       this

defense.        The parties also informed the Court at this time that

Carlos     Marino          had   recently          been      released       from     prison     due     to

terminal        cancer.             The      Court          then     set     deadlines         for     the

Government          to     decide     on    its       Glomar       response       and    for    summary

judgment briefing.

        Thereafter,          the    Government             continued to       equivocate         on    its

Glomar response before                   finally deciding,             on May 29,          2013,      that

it   would "no           longer assert           the       Glomar    response       in this      case."

[Dkt.    No.        62].     The     DEA     now       concedes       that    its    assignment         of

NADDIS number 3049901 to Lopez is a matter of public record, but
                                                      -10-
has    failed        to     ever      explain        why   it    took     seven        years      and   a

successful appeal to the Court of Appeals for Marino to prevail

on this issue.             See Def.'s Mot. at 7. 4

       After      withdrawing               its      Glomar     response,         the     Government

sought an extension of time to file its summary judgment motion,

which the Court initially granted but later modified at Marino's

request in light of his deteriorating health.                                     The result was

that     the     Government             filed        its   Renewed       Motion         for      Summary

Judgment on May 31,                   2013,    just two days after it withdrew its

Glomar      response,           but    did not        provide     the    Court with             anything

resembling a conventional Vaughn index.                             [Dkt. No.           65]. On June

14,    2013,    Marino filed his Opposition.                       [ Dkt.       No.    66] .    On June

24,    2013,    the Government filed its Reply                          [Dkt.    No.     68],    and on

June 26, 2013, Marino filed a Sur-reply with permission from the

Court.      [ Dkt. No 7 0] .

       On     July        16,    2013,        after    summary      judgment           briefing      was

complete but before the Court had ruled on the Motion,                                            Carlos

Marino      passed away.               See     Statement        Noting     Death of            Plaintiff

Carlos      Marino        [Dkt.       No.     72].    On   December       5,     2013,     the     Court


4
   Although the DEA acknowledges only one public document linking
Lopez to his NADDIS number, there are at least three such
documents on this Court's public docket.   See Pl.'s Opp'n, Ex. A
at 256, 261, 262 (DEA-6 Forms dated Aug. 18, 1997 and Sept. 10,
1997) [Dkt. No. 66-2]; Pl.'s Opp'n Ex. L at 4 (DEA-6 Form dated
Aug. 16, 1997) [Dkt. No. 66-15].
                               -11-
granted Griselle Marino's Motion                                   to        substitute on his                behalf.

[ Dkt.    Nos.        8 9,    90] .           On February 5,                 2014,    the Court held oral

argument         on      the     DEA's            Motion.               On    February        10,        2014,       the

Government            filed      a        Notice        of     Authority,             citing    an       appellate

brief Carlos Marino had filed in 1998 in his criminal case that

the Government                purportedly discussed at                           oral    argument             in    this

case.      [Dkt. No. 93].

II.      LEGAL STANDARD UNDER FOIA

         The     purpose              of         FOIA         is    to         "pierce         the        veil         of

administrative secrecy and to open agency action to the light of

public scrutiny."                     Morley v.           C.I.A.,            508 F.3d 1108,          1114          (D.C.

Cir.     2007)        (quoting Dep't of Air Force v.                                  Rose,    425 U.S.             352,

361 (1976)).                 FOIA "requires agencies to comply with requests to

make their records available to the public, unless the requested

records        fit      within            one     or more          of    nine        categories          of    exempt

material."            Oglesby v.                Dep't of Army,                79 F.3d 1172,          1176          (D.C.

Cir.     1996)        (citing             5    U.S.C.     §    552 (a),         (b)).     Exemption                7 (C),

which is at issue in this case,                                    permits an agency to withhold

law    enforcement              records            when       disclosure             "could    reasonably             be

expected         to      constitute                an   unwarranted              invasion           of    personal

privacy."         5 U.S.C.            §       552 (b) (7) (C).




                                                          -12-
        FOIA' s "limited exemptions do not obscure the basic policy

that disclosure,              not secrecy,          is the dominant objective of the

Act."        ACLU v.     U.S.     Dep't of Justice,              655 F.3d 1,          5 (D.C. Cir.

2011)        (citing Nat'l Ass'n of Home Builders v.                              Norton,       309 F.3d

26,     32     (D.C.    Cir.      2002)).           "If     a    document         contains        exempt

information,.          the     agency       must      still      release           'any     reasonably

segregable           portion'        after         deletion        of       the     nondisclosable

portions."          Oglesby, 79 F.3d at 1176 (citing 5 U.S.C.                              §    552(b)).

"At all times,           courts must bear in mind that                            FOIA mandates a

strong        presumption         in       favor      of    disclosure,             and        that     the

statutory exemptions,                which are exclusive,                   are    to be narrowly

construed."             ACLU,     655        F.3d     at    5      (internal        citations           and

punctuation marks omitted).

        A district court reviews an agency's decision to withhold

responsive          documents     de       novo.      5 U.S.C.          §   552 (a) (4) (B).            The

agency bears the burden of demonstrating that it has conducted

an    adequate         search,       and     that     its       decision      to     withhold           any

responsive          documents        is    justified.           Petroleum          Info.       Corp.     v.

Dep't    of     the     Interior,          976   F.2d      1429,    1433      (D.C.        Cir.       1992)

(citing 5 U.S.C.          §    552 (a) (4) (B)).

        "FOIA        cases     are        typically       and    appropriately            decided        on

motions       for    summary      judgment."              Gold Anti -Trust Action Comm.,

Inc. v.       Bd.    of Governors of Fed.                 Reserve Sys.,           762 F.        Supp.    2d
                                                   -13-
123,   130    (D.D.C.     2011)      (quoting Defenders of Wildlife v.                Border

Patrol,      623 F.     Supp.      2d 83,   87    (D. D.C.     2009)).         The Court may

grant summary judgment on the basis of information provided in

agency affidavits           or declarations,            but    only if     such materials

(1)      "describe       the       documents       and        the   justifications         for

nondisclosure with reasonably specific detail";                          (2)    "demonstrate

that the information withheld logically falls within the claimed

exemption";       and     ( 3)    show   that     the     agency's       explanations      for

withholding documents              "are not controverted by either contrary

evidence     in   the    record nor by evidence of agency bad faith."

Military Audit          Project v.       Casey,    656 F.2d 724,          738     (D.C.   Cir.

1981).

       As in any motion for summary judgment, the Court "must view

the evidence in the light most favorable to the nonmoving party,

draw all reasonable inferences in his [or her]                        favor, and eschew

making    credibility            determinations      or       weighing    the     evidence."

Montgomery v. Chao,              546 F.3d 703,     706    (D.C. Cir. 2008).           If the

Court concludes that there are genuine issues of material fact

as to the sufficiency of the agency's response, summary judgment

must be denied.         See Fed. R. Civ. P. 56(a).

III. ANALYSIS

       The DEA advances two principal arguments as to why it is

entitled to summary judgment.                First, it construes Marino's FOIA
                                            -14-
request narrowly and purports to have fully responded to it by

producing a single document.                              Second,       it maintains that, to the

extent Marino's                 request         seeks documents               other than the                    single

document          produced,            such        documents       are       exempt       from        disclosure

under        FOIA          Exemption          7(C).         Marino           refutes       both           of     these

arguments and asks the Court to enter summary judgment in her

favor pursuant to Fed. R. Civ. P. 56(f) (l).

        A.        The Scope of the Request

        Determination                 of     the    scope     of       the     request          is    the        first

issue to be decided.                         Our Court of Appeals has emphasized that

"[a] l though a             requester must             'reasonably describe'                         the records

sought,       5       U.S.C.      §        552 (a) (3),     an     agency          also    has        a    duty     to

construe          a    FOIA      request           liberally."               Nation       Magazine,              Wash.

Bureau v. U.S. Customs Serv., 71 F.3d 885,                                         890    (D.C. Cir. 1995)

(citations omitted).

        In    addition,           the         DOJ's    own       internal          guidance           reiterates

that    " [ e] ven         if   the        request     'is       not     a    model       of    clarity,'           an

agency should carefully consider the nature of each request and

give     a    reasonable               interpretation              to        its    terms        and           overall

content."             United States Dep't of Justice, Guide to the Freedom

of     Information              Act,        Procedural        Requirements,                at        25        (2013)'

available             at     http://www.justice.gov/oip/foia-guide.html                                          (last

visited February 11, 2014).
                                                       -15-
      Marino's request stated, in relevant part:

      Specifically,   I  request a copy of all documents
      indexed under No. 3049901 of [NADDIS].       I am only
      requesting    information   that   is  already   public
      information or was required to be made public in
      public trials conducted on December 7-10, 1997, in the
      Northern District of Florida styled as United States
      v. Marino           and in June, 1998, in the Eastern
      District of New York styled as United Stated [sic] v.
      Pastor Parafan-Homen.          If any documents indexed
      under NADDIS No.     3049901 or portions thereof are
      withheld or redacted because of statutory exemptions,
      please forward to me the segregable portion of the
      document[.]

      FOIA Request [Dkt. No. 5-1, Ex. A]                 (emphasis added).

      The Government focuses on the second sentence of the quoted

language     and       argues    that    it    limits    Marino's     request     to    two

categories of documents:            ( 1)      documents indexed to NADDIS number

3049901 that were "made public" at the trials of Carlos Marino

and   Parafan-Homen,         and   (2)     documents     indexed to     NADDIS     number

3049901 that were "required to be made public" at such trials,

but were not.          Def.'s Mot. at 9-12.

      According to the Government,                   the second category is not a

proper   subject        of   a   FOIA      request    because   "it    is   a    question

disguised as       a    request    for     documents:    to   answer it,        one would

need to be totally familiar with the facts                      of the trials,          the

nature of the documents that DEA has concerning Lopez, and .

the   government's           disclosure         obligations[.]"         Id.      at     12.

Therefore,     the       Government        concludes     that   the     request        only
                                              -16-
properly seeks documents actually introduced at the two trials

because a     "fundamental axiom of FOIA law is that agencies are

not required to answer questions posed as FOIA requests."                                    Id.

at 11-12      ( citing Zeman s k y v .         EPA,    7 67 F . 2d    569,   57 4   ( 9th Ci r .

1985); DiViaio v.           Kelly,     571 F.2d 538,         542-43     (lOth Cir. 1978);

Amnesty Int'l v.            CIA,    No.    07-5435,     2008 WL 2519908,            at    *12-13

(S.D.N.Y. June 19, 2008)).

       Marino rejects the DEA's narrow reading and argues that the

request     seeks     "all         documents       indexed    under      [NADDIS]         number

3049901," whether introduced at the trials or not.                              Pl.'s Opp' n

at 24-26 (emphasis added).                 Marino also argues that, after seven

years of litigation in which the DEA has never once questioned

the meaning of his request,                 the DEA has forfeited any objection

that it is ambiguous or improper.                     Id. at 16-23.

       For the following reasons,                  the Court concludes that Carlos

Marino's          request      is         "reasonably         susceptible"           to      the

interpretation urged by Marino, LaCedra v. Exec. Office for U.S.

Att'ys,     317    F.3d 345,        348    (D.C.    Cir.   2003),      and therefore,         it

need    not       reach     Marino's        alternative         contention          that     the

Government has forfeited this argument.

       As a preliminary matter,              the first sentence of the request

"[s] pecifically" asked for "all documents" indexed under NADDIS

#3049901.         FOIA Request        [ Dkt. No. 5-l,        Ex. A]     (emphasis added) .
                                             -17-
Likewise,       the     third sentence of the                request    asked that        if the

DEA withheld "any documents                    indexed under NADDIS No.                 3049901,"

it     send Marino any segregable portion of                         such documents.           Id.

(emphasis added) .              This    expansive      language is          fully consistent

with     Marino's        interpretation         and    inconsistent         with    the    narrow

reading urged by the              Government.           As    our Court of Appeals has

observed:

        The drafter of a FOIA request might reasonably seek
        all of a certain set of documents while nonetheless
        evincing a heightened interest in a specific subset
        thereof.  We think it improbable,    however,  that a
        person who wanted only the subset would draft a
        request that .  . first asks for the full set.

LaCedra, 317 F.3d at 348.

        The     broad     language       in     the    first        sentence       of    Marino's

request       can   be    reconciled          with    the    limiting       language      in   the

second        because     the     two    sentences          appear     to    have       different

purposes.        Whereas the first defines the scope of the request,

the     second explains          why    (in Marino's          view)     such documents         are

not exempt.         In fact,      the second sentence closely tracks the two

theories Carlos Marino repeatedly presented to this Court as to

why Exemption 7 (C)             does    not    apply to       the     documents     in Lopez's

file:      first,       that    the events underlying the requested records

have     already      been      publicly       disclosed;       and      second,        that   the

Government's        obligation to         disclose          Lopez's     false   testimony at


                                               -18-
his     criminal     trial    established          a   public     interest         in   the

requested records          sufficient to counterbalance Lopez's privacy
                                        6
interest in withholding them.

       This   reading of Marino's            request     is    also     consistent with

the    structure      of    arguments       presented     by     Marino     during      his

administrative appeal,         in which he again described his request

broadly at the outset as one "for records indexed under NADDIS

#3049~01[.]"        Letter from Marino to OIP dated Aug. 9, 2004 [Dkt.

No.    5-1,   Ex.   E].     He then challenged the DEA' s                denial of his

request by quoting from the DOJ' s own FOIA Reference Guide for

the proposition that:

       information about a living person can be released
       without   that    person's    consent    'when   no  privacy
       interest    would    be    invaded    by    disclosing   the
       information, when the information is already public or
       required to be made public or where there is such a
       strong public interest in the disclosure that it
       overrides the individuals' privacy interest.'

Id.    (emphasis added)       (citing U.S.         Dep't of Justice,            Freedom of

Information Act Reference Guide,               at 4 (November 2003)).               Marino

explained that his original request specifically set forth these

bases for release of the requested documents.                     Id.

       Finally,     the    Government       itself     appears    to     have    read   the

second sentence of Marino's             request primarily as an effort to


6
    The second theory is explained in more detail infra at III.B.2.

                                            -19-
overcome Exemption 7(C)               rather than a genuine limitation on the

scope of the request.                 For example,             in its original Motion for

Summary Judgment,           the      DEA described the              second          sentence      as    an

attempt "to end-run the 7(C)                  exemption."           Def.'s          [Original] Mot.

for Summary Judgment at 9 [Dkt. No. 5].                            Later,       in its appellate

brief to the D.C.             Circuit,      the DEA argued that even if it did

publicly       disclose       an     individual's              NADDIS     number,          that       fact

"would still not require DEA to reveal all of the information in

such     an    individual's        files [, ] "        indicating        that       the    agency,      in

fact,     understood Marino            to     be       seeking    all     such       files.        Pl.'s

Opp'n Ex.       I    (DEA's    App.     Br.      to     D.C.     Cir.)    at     11-12         (emphasis

added)    [Dkt. No. 66-12].

        For    all    the     foregoing          reasons,        the     second           sentence      of

Marino's       request is      reasonably read as neither a                           limitation on

the    scope    of   the    request        nor     a    request     for       the     Government        to

answer     a   question,       but    as    an     explanation           of    why,       in   Marino's

view,    the    requested       documents          are    not     exempt        from      disclosure.

By    contrast,      the    first     sentence          does     define       the     scope      of    the

request,       and    clearly        and      specifically             seeks        all        documents

indexed to NADDIS number 3049901.                         Accordingly,           the Court shall




                                                 -20-
construe Marino's        request as one for all documents indexed to

NADDIS number 3049901. 7

        B.   The Government Is Not Entitled to Summary Judgment
             Under Exemption 7(C)

        The Government also argues that even if Marino's request is

construed     broadly,      the   agency     is   still   entitled     to   summary

judgment     because       Exemption      7 (C)   justifies     its    categorical

withholding    of    the    requested      documents.     To    prevail     on   this

argument, the DEA must make two independent showings.                     First, it

must persuade the Court that it has made a "good faith effort to

conduct a search for the requested records,                  using methods which

can     be   reasonably        expected      to    produce     the     information

requested."     Oglesby, 920 F.2d at 68.            Second, it must show that

the withheld documents fall "within a FOIA statutory exemption,"

here,    Exemption     7(C).      Leadership      Conf.   on   Civil    Rights     v.

Gonzalez, 404 F. Supp. 2d 246, 252 (D.D.C. 2005).



7
  The DEA also argues that a "requester who fails to submit a
proper FOIA request has      not exhausted his      administrative
remedies           and an agency is under no obligation to
respond [.]"  Reply at 7 (citing Lewis v. Dep' t of Justice, 7 33
F. Supp. 2d 97, 107 (D.D.C. 2010)).        However, the DEA did
respond to Marino's request, and never once suggested it did not
understand the meaning of the request.   Nor has it explained how
its seven-year long Glomar stance would have differed under the
interpretation Marino advances.        Therefore,  the Court is
satisfied that Marino properly exhausted his administrative
remedies.

                                        -21-
               1.      The DEA Has Not Established that It Conducted an
                       Adequate Search

        "To merit summary judgment on the adequacy of a search, an

agency must demonstrate beyond material                           doubt that           its   search

was     reasonably       calculated to            uncover      all     relevant    documents."

Students       Against       Genocide,        257       F.3d    at     838      (citing      Nation

Magazine,       71    F.3d     at   890).         "In    general,       the     adequacy       of    a

search is       'determined not by the fruits of the search,                                 but by

the appropriateness of [its] methods.'"                           Hodge v.       FBI, 703 F.3d

575,    579    (D.C. Cir. 2013)             (citation omitted).              "The agency must

make a good faith effort to conduct a search for the requested

records,       using     methods       which       can    be     reasonably       expected          to

produce the information requested."                         Students Against Genocide,

257 F.3d at 838.

        The    DEA has       submitted declarations                  from Assistant          United

States        Attorney       Fred      E.     Haynes          ("Haynes"),        the      attorney

principally responsible               for     defending this            case,    and its       FOIA

Chief,    Katherine L. Myrick               ("Myrick"), describing the extent of

the agency's search.

        Haynes attests to obtaining the DOJ's retired case files in

the     criminal       prosecutions          of     Marino       and     Parafan-Homen          and

reviewing       them     for    all    "documents         of     significance"          that    are

"open    to     the    public"        and    relate      to     Lopez     or    NADDIS       number

                                               -22-
    3049901.     See   Haynes   Decl.    CJf    10     [ Dkt.               No.    65-1] ;     Response      to

    Pl.'s First Set of Reqs.       for Prod.           of Docs. Nos.                     1,    3,   4.     This

search was undertaken during the discovery process in this case,

which was focused solely on publicly-disclosed documents linking

Lopez with NADDIS number 3049901.                     It did not extend to all DEA

records        indexed to NADDIS number               304 9901               and,       consequently,        it

was      not     "reasonably     calculated            to              uncover          all"    responsive

documents.         Students Against Genocide, 257 F.3d at 838. 8

        Myrick's declaration also falls short.                                    She informs us that

the     DEA' s   law enforcement records are "reasonably likely to be

found      in     DEA' s    Investigative            Reporting                    and     Filing         System

    (IRFS)."     First Supp.     Myrick Decl.              CJ[         6.     However,         she did not

search IRFS for any records because,                             as she explained,                  IRFS "is

not     indexed,    as     plaintiff's    FOIA request                        sought,        by a    court's

case name, by a court's case file number, by information that is

public     information,       or by     information that                          was    required to be

made public in public trials."                       Id.         CJ[    7.        This explanation is

totally unconvincing in light of the Court's ruling that Marino

seeks     all    documents     indexed to        NADDIS                 number       3049901,       and not


8
  At oral argument, counsel for the Government stated for the
first time that he had searched all DEA records for documents
indexed to NADDIS number 304 9901, but he offered virtually no
detail as to the methods he employed or the results of his
search.  See Tr. at 7:16.

                                               -23-
simply those that were made public or required to be made public

at the two trials.                 Accordingly,         the      DEA shall be directed to

search IRFS for all such records.

               2.         Marino Has Demonstrated a      Significant Public
                          Interest in the Documents Under Exemption 7(C)

       The    DEA        also   contends     that       it    should not         be    required    to

identify responsive records because the records Marino seeks are

presumptively privileged under Exemption 7(C).

       As    already noted,          Exemption          7 (C)     protects       law enforcement

records      for     which      disclosure       "could         reasonably be          expected to

constitute          an    unwarranted       invasion         of    personal       privacy."         5

U.S.C. § 552 (b) (7) (C).            The Supreme Court has held that once the

Government          has    shown    that    the     privacy          concerns         addressed    by

Exemption 7 (C)           are present,       the burden shifts to the                    requester

to demonstrate that the "public interest sought to be advanced

is a significant one,               an interest more specific than having the

information for its own sake."                      Nat' 1 Archives          &    Records Admin.

v.   Favish,        541    U.S.    157,    172    (2004).          To   satisfy this        burden

where,      as here,       "the public interest being asserted is to show

that     responsible            officials        acted        negligently         or     otherwise

improperly          in    the     performance       of       their      duties,                   the

requester must produce evidence that would warrant a belief by a




                                                 -24-
reasonable person that the alleged Government impropriety might

have occurred."               Id. at 174.

         If the requestor meets this burden, the court must,                           in the

final      analysis,          "balance      the   public        interest     in     disclosure

against the         [privacy]        interest Congress intended the Exemption

to      protect'"        in     order    to   determine         whether      the     Exemption

applies.         ACLU,    655 F.3d at 6           (citing U.S.        Dep't of Justice v.

Reporters        Comm.        for   Freedom of         the   Press,   489    U.S.    749,   776

    (1989)).

         The DEA contends that it                 is    entitled to summary judgment

without any balancing analysis because Marino has not pointed to

facts     that    would warrant           a   reasonable        belief      that    Government

misconduct "might have occurred." 9                     The Court disagrees.            Marino

has     presented evidence              indicating       that   the    Government      "might"

have been negligent in failing to know that its key witness was

lying to the jury and seriously understating his involvement in

the Parafan-Homen conspiracy.



9
   At oral argument, the Government misstated the standard
governing Marino's evidentiary burden.     While the Government
agreed that Favish is the controlling case, it contended Marino
was required to present "compelling evidence" of Government
misconduct to trigger a balancing under Exemption 7(C).   Tr. at
20:3-5.    The "compelling evidence" standard does not appear
anywhere in the Favish decision and appears only in D.C. Circuit
case law significantly predating Favish.

                                              -25-
         First,    between      August      and     November       1997,     Lopez       gave     a

 series of interviews to DEA agents in which he told them,                                    inter

alia,     that he had met personally with Parafan-Homen and other

high level participants in Columbia on more than one occasion.

See DEA Notes dated October 27, 1997 [Dkt. No. 66-2 at 178-185].

The Government also             knew,     through its years-long investigation

of     the    Parafan-Homen           organization,        that        several        other     co-

conspirators        had      attempted        to    meet        with     Parafan-Homen           in

Columbia but were never allowed to physically see him.                                        Pl.'s

Opp'n Ex. D (Gov't's App. Br. in United States v. Parafan-Homen)

at 12     [Dkt.    No.    66-7]. 10      The fact that Lopez was able to meet

face-to-face        with     the      conspiracy's        leader       on   more       than     one

occasion      while      others    were    not     reasonably          suggests       Lopez    was

part     of   Parafan-Homen's            inner      circle       and     should       have      led

Government        officials         to     suspect        his     involvement           in     the

conspiracy        was    more     extensive        than    he    depicted        at     Ma~ino's


trial.

        Second,    despite        its    discovery    obligations           under      Brady v.

Maryland,     373 U.S.       83     (1963),    the Government did not disclose


10
   By the time Marino and Lopez were arrested in August 1997, the
DEA had been investigating the Parafan-Homen conspiracy for at
least four years and several of its key members had already been
arrested and extradited to the United States, including Parafan-
Homen himself.   See Pl.'s Opp'n Ex. D at 8 (Gov't's App. Br. in
United States v. Parafan-Homen) [Dkt. No. 66-7].
                               -26-
the notes from its interviews with Lopez to Carlos Marino until

he     filed     his       §    2255       Motion.        See       Pl.'s      Opp' n     Ex.    E     (Gov' t' s

Resp.      to Marino's § 2255 Pet.)                      at 7-8         [Dkt. No.        66-8 at ECF pp.

8-9] .      Instead,           the prosecutor inaccurately stated at his trial

that the DEA agents had not taken notes during their interviews

with Lopez.            See Pl.'s Opp' n Ex.                    A    (Joint Appendix)             at 114-15,

223 [Dkt. No. 66-2].

          Third,       Marino          has        submitted        a    list        of    NADDIS       numbers

associated           with       the        Parafan-Homen            conspiracy           indicating          that

Carlos Marino was the last of fifty-eight investigative subjects

to enter the            DEA' s        database.          See Pl.'s Opp' n,                Ex.    A    (List of

Persons      Associated               with    the       Company         in    Numerical         Sequence       in

Which They Were Entered into the NADDIS Databanks)                                          [Dkt. No.         66-

4    at    124].        In      fact,        it    appears         he   did     not      enter       the    DEA' s

database       until           Lopez's       arrest       in    August         1997,      indicating          the

Government         was         not    aware        of   his     existence           until       that       point.

When he        did     finally         enter the          database,           his NADDIS number was

4210827.         By contrast,               Lopez's NADDIS number,                    3049901,        which is

more      than       one       million        numbers          lower         than    Marino's         and     the

twenty-second entry on the                          list,      suggests         he was      on the          DEA' s

radar      long before               his    arrest.         These       circumstances might                  have

alerted prosecutors that Lopez's role was more extensive than he



                                                        -27-
represented,        and     prompted        them    to     cross-check            his     statements

against the accounts of other cooperators. 11

        Thus,   although          the     Government       had been         investigating          the

Parafan-Homen           organization        for    years,        and   although          DEA agents

were in possession of information suggesting Lopez's involvement

was more extensive than he led them to believe,                                   the Government

produced only a single Form DEA-6 to Marino prior to trial, did

not alert Marino to many of the inconsistencies between Lopez's

trial     testimony         and     his     debriefing           statements,             and    relied

heavily on Lopez's testimony to argue that Marino should receive

a    sentencing         enhancement        based    on     his    purportedly             managerial

role    in   the    enterprise.             See    Pl.'s    Opp' n,         Ex.    B     (sentencing

transcript)        at    6-10     [Dkt.    No.    66-5 at ECF nos.                24-28].        These

circumstances           satisfy Marino's evidentiary burden to show that

the Government "might" have fallen below an acceptable standard

of care to ensure the integrity of the proceedings.

        Finally, the Court rejects the Government's suggestion that

Lopez's      perjury        was         unimportant        because          it     "was        totally

unrelated to the evidence against Mr.                        Marino."              Tr.    at    7:4-5.

Lopez's      testimony was          absolutely critical                to    any    finding       that

11
   At least two other co-conspirators, William Quintero and
Andres Meneses, were cooperating with the Government and had
been debriefed multiple times before Marino's trial in December
1997.   Id. at 9, 13.      There is no indication that Lopez's
account was corroborated by their accounts.
                                                 -28-
Carlos Marino worked for the Parafan-Homen organization and his

believability was a central component of the Government's case.

Even    if     his        falsehoods    related       more     to        his     own    criminal

activities          than    Marino's,    his     readiness          to     lie       under   oath

seriously impacted his credibility.                    The Government's failure to

investigate and disclose evidence indicating that he was                                     lying

potentially deprived the               jury of a       full    opportunity to assess

his trustworthiness as a witness.                 See Tr. at 6:12-13.

       Moreover,          credibility    aside,       unlike        in    Marino's       §    2255

proceeding,         the    focus   in this     case    is     not    solely whether              the

Government's         conduct prejudiced Marino,               but whether the public

would want to know about it.                 It serves the public interest in

fair and carefully investigated criminal trials to know that the

Government built its case on an unreliable witness and ignored

red flags that he was underplaying his role in the conspiracy -

and potentially exaggerating Marino's - in order to win leniency

from the Court and the Government.                      See ACLU,              655   F. 31d at    14

("matters of substantive law enforcement                                  are properly the

subject of public concern")             (citation omitted).

       In    sum,    even if the Government            did not           definitively         know

that Lopez was perjuring himself at Marino's trial,                                  its failure

to investigate and learn all of the facts about its key witness,

and    to    disclose       all    exculpatory     evidence          to        Carlos    Marino,
                                          -29-
reasonably        suggest   that    it   "might"   have    acted   negligently      or

otherwise     improperly      during      Marino's    prosecution.        This     low

threshold of proof is all that is required, at this juncture, to

survive summary judgment.            Favish, 541 U.S. at 174. 12

             3.      The DEA Does Not Identify Any Basis for
                     Categorical Withholding

       Third and finally,          the DEA argues that even if Marino has

made   an   evidentiary       showing     sufficient      to    trigger   Exemption

7(C)'s balancing test under other circumstances, no balancing is

required because the documents in Lopez'                  file are categorically

exempt.

       Our Circuit has acknowledged that FOIA does not necessarily

require a court to "evaluate the revelatory characteristics of

every individual document in each case [.]"                    Lopez v.   Dep' t   of

Justice,    393 F.3d 1345, 1349          (D.C. Cir.    2005).      Instead,   "rules


12
   The Government cites Martin v. Dep't of Justice, 488 F.3d 446
 (D.C. Cir. 2007) for the proposition that Marino is collaterally
estopped from arguing that the Government committed misconduct
in his criminal case.   In Martin, our Court of Appeals held that
a   FOIA requester who,    in an earlier §      2255 proceeding,
unsuccessfully argued that the Government committed misconduct
at his trial, was collaterally estopped from making the same
argument in a FOIA case.     However, in Martin, the Magistrate
Judge who denied relief under § 2255 first reviewed, in camera,
the same documents the requester later sought in his FOIA case.
In this case, nobody (other than the Government) has reviewed
the   requested documents to determine whether they reveal
Government misconduct.   Therefore, unlike in Martin, the factual
matters presented by this FOIA case are different from those
underlying Carlos Marino's § 2255 proceeding.
                               -30-
exempting          certain categories                of    records        from disclosure,"                are

appropriate "when the range of circumstances included in                                                 [the]

category           'characteristically               supports        an    inference'             that     the

statutory requirements for exemption are satisfied" so long as a

request falls within the category.                               Nation Magazine,                71 F.3d at

893     (citing       United      States        v.        Landano,        508    U.S.       165,     176-80

(1993)).           At the same time,            the Court of Appeals has cautioned

that,     "[b]ecause         the        myriad        considerations              involved          in     the

Exemption 7 (C)           balance defy rigid compartmentalization,                                  per se

rules     of        nondisclosure          based           upon      the        type        of     document

requested,          the   type     of     individual              involved,       or        the    type     of

activity       inquired      into,        are    generally           disfavored."                 Stern v.

FBI, 737 F.2d 84, 91 (D.C. Cir. 1984)                             (citation omitted).

        The    DEA     has   not    come        close        to    showing        that       categorical

withholding          is   appropriate           in        this    case.          As     a    preliminary

matter,       it    has   not,     as     discussed          supra,        demonstrated that                it

conducted an          adequate      search           for    responsive           records.           In the

absence of such a search,                   the Court is certainly not about to

take it on faith that all responsive records, in their entirety,

implicate          Lopez's       privacy        interests,            especially             given       that

Lopez's identification with a DEA investigation is now a matter

of public record.             See Davis v. U.S. Dep't of Justice,                                  968 F.2d

1276,    1282 n.4         (D.C.    Cir.    1992)           ("If                 the only basis for
                                                 -31-
nondisclosure          is     an        individual's      interest        in    remaining

anonymous,       and an excerpt revealing his identity is disclosed,

there    may     no    longer      be    any    justification      for    continuing    to

withhold [the requested record].").

        Even if the DEA had conducted an adequate search, the DEA's

categorical       withholding           is   inappropriate      because   circumstances

exist    that    do    not    "characteristically           support"      the   inference

that Exemption 7(C)'s statutory requirements are satisfied.

        First,    to    the     extent         the    records    detail    Lopez's     own

criminal activities, any privacy interest in such information is

likely to have been greatly diminished by his public testimony

on the same issues and voluntary participation in at least four

public criminal proceedings. 13                 See, e.g., Kimberlin v.           Dep't of

Justice, 139 F.3d 944,             949 (D.C. Cir. 1998)          (privacy interest of

individual       "undoubtedly"           diminished     where    "the    public    already

knows who he is, what he was accused of, and that he received a

relatively mild sanction") .                 Naturally,    it is difficult for the


13
   In addition to testifying against Carlos Marino and Parafan-
Homen, Lopez testified at the separate trials of Gustavo Pedraza
and Conrado Luis Lopez in the Northern District of Florida in
1999.   See Pl.'s Opp'n Ex. E (Gov't's Resp. to Marino's § 2255
Pet.) at 9 [Dkt. No. 66-8 at ECF p. 10].         Lopez was also
publicly charged with, and pleaded guilty to, one count of
conspiracy,   for which he was sentenced to 42 months of
imprisonment.    See United States v. Lopez, No. 97-cr-084-RV
(N.D. Fla. June 26, 1998) [Dkt. No. 124-2].

                                               -32-
Court    to    assess      the       full        extent    of    Lopez's      privacy       interest

without knowing anything about the type of records at issue.

        Second,    as    discussed           above,        Marino      has    adduced       evidence

that     DEA      agents       and        prosecuting            attorneys          acted       either

negligently in failing to cross-check Lopez's story against the

Government's            broader             investigation               of      Parafan-Homen's

organization,       or improperly by presenting his testimony despite

knowing it was false.                 Marino has also presented evidence that

the    Government       acted        improperly by              suppressing         or   failing    to

learn of discoverable and potentially exculpatory material.                                        The

American public has              a    strong public interest                   in    knowing if a

defendant serving a long sentence                          (in this case,           30 years)      for

the    serious     crime       of     conspiracy           to    import       cocaine     has     been

wrongfully convicted on the basis of perjured testimony that the

Government might         well        have        been     able prevent         through      its    own

investigation, compliance with its Brady obligations, or both.

        Third,     while       it    is     both        reasonable      and    consistent         with

this    Circuit's       case        law     to    assume        that   some     portion      of    the

responsive records may implicate the privacy interests of Lopez

and others who may be mentioned in them,                               see,   e.g.,      Davis,    968

F.2d at 1281 (persons involved in law enforcement investigations

"have a substantial interest in seeing that their participation

remains secret"),          this does not supply a basis to withhold the
                                                  -33-
records      in their entirety.              The    DEA puts     forth     no   reason why

redactions or selective withholding will not suffice to protect

any existing privacy interests.                    See Nation Magazine, 71 F.3d at

896   (holding that          an    agency is       not permitted "to exempt              from

disclosure all of the material in an investigatory record solely

on the grounds that the record includes some information which

identifies a private citizen")                  (emphasis in original) . 14

      In     sum,     given       the    centrality     of     Lopez's     testimony         at

Marino's     trial and sentencing,               Lopez's      subsequent      admission to

perjuring      himself       on    various      occasions,     and   the      existence      of

evidence      indicating          that    the    Government      was,    at     a    minimum,

negligent in failing to be aware that Lopez was not telling the

truth,      Marino    has     plausibly         demonstrated     that    Exemption       7 (C)

"might" not apply to at least some of the responsive documents.

For   all     of     these    reasons,       the    Government's        assertion       of    a

categorical exemption is rejected,                    and the Government's Renewed

Motion for Summary Judgment shall be denied.

      However,       without      knowing more about the records at                    issue,

and   the     interests       they       implicate,     the     Court    cannot       make    a

determination that           the public interest             in disclosure          outweighs


14
   At oral argument, the Government conceded that redactions
would likely suffice to protect the privacy interests of any
individuals other than Lopez who might be mentioned in the
documents. Tr. at 8:4-7.
                            -34-
the privacy interests at stake.                               Consequently, Marino's request

for summary judgment in her favor pursuant to Fed.                                       R.    Ci v.    P.

56(f) shall also be denied.

        C.       The Government Must File a Vaughn Index

        After seven years of litigation,                           the Government still has

not     yet     submitted        a       Vaughn    index.         Instead,       it    continues        to

assert that it need not do so because information "regarding the

existence            or    non-existence           of     law     enforcement          investigative

records         concerning           a     third        party     is     reasonably      likely         to

infringe        on        the   third      party's        privacy."           First    Supp.    Myrick

Decl.    <JI   12.

        The Government seems to have forgotten that after years of

hemming and hawing,                  it has now withdrawn its Glomar response.

Having         done       so,   the       DEA     is     now    "required       to     confirm     that

responsive records exist,                       then either release them or establish

that they are exempt from disclosure."                                 Marino II,       685 F.3d at

1082    (emphasis           added)        (citing Wolf v.              CIA,   473     F.3d 370,        380

(D.C. Cir. 2007)); see also ACLU v. CIA, 710 F.3d 422, 432 (D.C.

Cir. 2013)           ("With the failure of [a]                          . Glomar response, the

case must                        proceed to the filing of a Vaughn index or

other description of the kind of documents the Agency possesses,

followed by litigation regarding whether the exemptions apply to



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those documents.")           (citing Vaughn v.           Rosen,        484 F.2d 820           (D.C.

Cir. 1973)).

        After the DEA searches its records                     ~n    compliance with this

Memorandum Opinion and Order,                 it shall prepare a Vaughn index,

or    other     reasonably         detailed       description          of     the     responsive

records and the reasons              for withholding them that will permit

the Court to assess any exemptions claimed.                             The DEA will then

be    "entitled       to    make      individualized            arguments           as   to     why

particular          documents        [or      portions              thereof]         might       be

appropriately withheld,"             and Marino will be entitled to                           rebut

those     arguments.         Citizens       for    Responsibility             and     Ethics     in

Washington v.        U.S.    Dep't of Justice,            No.       11-754     (GK),     2013 WL

2549680, at *10 (D.D.C. June 12, 2013).

IV.     CONCLUSION

        For   the   foregoing       reasons,       the    DEA' s      Renewed        Motion     for

Summary       Judgment      will    be     denied,       and    Marino's            request     for

summary       judgment in her        favor     under Rule            56 (f)    shall     also be

denied.       An Order shall accompany this Memorandum Opinion.




February 19, 2014                                  GladySKeSief
                                                   United States District Judge



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