                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



 ADOLFO CORREA COSS,

        Plaintiff,
                v.                                         Civil Action No. 14-1326 (JEB)
 UNITED STATES DEPARTMENT OF
 JUSTICE, et al.,

        Defendants.


                                 MEMORANDUM OPINION

       Plaintiff Adolfo Correa Coss was convicted of drug trafficking in 1991. During his

subsequent quest to clear his name, Coss discovered that Guillermo Casas, a confidential

informant who kept notebooks detailing his own drug transactions, played an important role in

his arrest. Believing they might exonerate him, Coss submitted a Freedom of Information Act

request seeking those notebooks and related material.

       After several iterations of Coss’s request, the Federal Bureau of Investigation and the

Executive Office for United States Attorneys each issued a so-called “Glomar response,”

refusing to confirm or deny the existence of the documents. Coss then brought this FOIA suit

(confined to the notebooks) contesting these responses, and both he and Defendants now cross-

move for summary judgment. For its part, EOUSA has abandoned its Glomar position and

claims that it has since conducted an adequate, albeit fruitless, search for the notebooks. The

FBI, meanwhile, continues to rely on Glomar, while also asserting that Plaintiff has failed to

exhaust administrative remedies. The Court renders a split decision: the EOUSA has complied

with FOIA, but the FBI must search its files for the notebooks.


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   I.    Background

        Coss is a former lawful permanent United States resident who claims to have been

wrongfully convicted. See Am. Compl., ¶ 4. In 1989, he was arrested for possession of cocaine

with intent to deliver. See generally People v. Coss, 617 N.E.2d 138 (Ill. App. Ct. 1993). The

search of his home, car, and business “was based on [the allegations of] a confidential . . . police

informant” who claimed to have made three separate purchases of cocaine from Coss on May 8,

1989. Id. at 139. At trial and during his subsequent appeal, Coss alleged that the informant –

who he even then believed was Casas – had fabricated his story; as a result, Coss maintained, the

police officer’s search-warrant application contained false statements and was thus invalid. Id. at

140. These arguments did not succeed, and Coss’s conviction was affirmed. Id.; Am. Compl.,

¶¶ 2, 4; Pl.’s Mot., Exh. D (July 17, 2013, Request) at 1.

        Having returned to Mexico, Plaintiff endeavored to reclaim his innocence. To that end,

he hired a private investigator, who was able to confirm that the CI in his case was indeed Casas.

See Am. Compl., ¶ 5; Pl.’s Mot., Exh. B (Letter from Private Investigator) at 1. Equipped with

that information, Plaintiff discovered that one year after his own conviction, Casas was found

guilty of conspiracy to possess with intent to distribute cocaine. See United States v. Nava-

Salazar, 30 F.3d 788, 792 (7th Cir. 1994). Coss also learned that during Casas’s trial the

prosecution had admitted into evidence notebooks that Casas used to record his drug

transactions. Id. at 795.

        On July 17, 2013, believing that the contents of the notebooks would help exculpate him,

Plaintiff filed identical FOIA requests with the FBI and the United States Attorney’s Office in

the Northern District of Illinois, Eastern Division. In the requests he asserted that Casas was the

CI in his case, and he sought to “obtain[] a copy of the transactions notebook seized from Casas,


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as well as any information that might have been shared . . . with the Chicago Police or Cook

County District Attorney’s Office in State v. Correa Coss, 89-CR-16050, exculpatory or other.”

July 17, 2013, Request at 2.

       In its reply, the USAO instructed Plaintiff to send his request to EOUSA. See Pl.’s Mot.,

Exh. D (July 31, 2013, USAO Response) at 7. The FBI, on the other hand, issued a Glomar

response, claiming that it could neither confirm nor deny the existence of the records because

they involved a third party − presumably Casas. See Pl.’s Mot., Exh. D (July 30, 2013, FBI

Response) at 3. It explained that Coss could overcome this position by having the third party

sign an authorization form, proving the third party’s death, or demonstrating that the public

interest in disclosure outweighed the third party’s privacy interests. Id.

       In an effort to direct his correspondence to the appropriate entities, Coss thereafter sent a

new request on August 6, 2013, to EOUSA and the FBI, which differed slightly in form. He

again alleged that Casas was the CI in his case and this time asked for “a copy of the ‘notebook,

which contain[s] names, telephone numbers, and records of drug transactions[,]’ [that was]

identified in Casas’ appeal, U.S. v. Nava-Salazar et. al. 30 F.3d 788 (7th Cir. 1994)” and “any

other information [the agencies] may have relating to Mr. Adolfo Correa Coss (not records

check) in this case.” Pl.’s Mot., Exh. D (August 6, 2013, Request) at 8-9. Attached to this

August 6, 2013, request were a copy of Plaintiff’s identification and his own signed release. Id.

at 10-11.

       Ten days later, Coss sent another letter to both the FBI and EOUSA, apparently

responding to the Bureau’s July 30 Glomar response. The letter explained that “[a]ll requested

records that are responsive may be provided with personally identifying information, other than

that pertaining to Adolfo Correa Coss[,] redacted[;] therefore, third party authorization should



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not be required.” See Pl.’s Mot., Exh. D (August 16, 2013, Letter) at 14. Plaintiff concluded by

observing that “[o]ur system of justice must be a fair and equitable one. The public interest in

ensuring that no innocent person is convicted of a crime far outweighs any privacy interest in

withholding the information.” Id. at 15. This was the last communication he had with the FBI

prior to the initiation of this suit.

         His interaction with EOUSA, conversely, was far more involved. Apparently in

response to Plaintiff’s August 16 letter, that agency, like the FBI, issued its own Glomar

response, also asserting third-party privacy concerns. See Pl.’s Mot., Exh. E (September 16,

2013, EOUSA Response) at 1-2. Coss formally appealed this determination on October 15,

2013, reiterating his previous public-policy statement. See Pl.’s Mot., Exh. F (October 15, 2013,

Appeal) at 1. EOUSA responded to this appeal on December 31, 2013. Now abandoning its

Glomar position, the agency explained that it had found nine boxes in which the notebooks

Plaintiff sought might be located and asked him for the applicable fees to search them. See

Def.’s Mot., Declaration of Vinay Jolly, Exh. C (December 31, 2013, EOUSA Response) at 14.

Plaintiff, however, never received this December 31 letter. See Pl.’s Mot., Exh. I (May 6, 2014,

Request) at 1.

        Four months later, on April 30, 2014, Plaintiff did receive a second letter from DOJ,

which referenced the December 31, 2013, letter and indicated that because he had not responded

within thirty days, EOUSA would consider the matter closed. See Pl.’s Mot., Exh. H (April 30,

2014, DOJ Response) at 1. Plaintiff wrote back on May 6, 2014, clarifying that he had not

received the December 31 notice and sending a check for the requested fee amount. See Pl.’s

Mot., Exh. I (May 6, 2014, Request) at 1. DOJ thereafter processed Plaintiff’s check and




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reopened his EOUSA request on May 23, 2014. See Pl.’s Mot., Exh. J (May 23, 2014, DOJ

Response) at 1.

         Having not heard back from EOUSA since May 30, 2014, when DOJ sent Plaintiff a

letter assigning his request a new FOIA number, Coss filed this suit on July 13, 2014. His

Amended Complaint makes clear that the sole documents he seeks in this action are the

notebooks. See ECF No. 16. On September 23, 2014, EOUSA sent Plaintiff a letter explaining

that “[a] search for records located in the United States Attorney’s Office(s) for the Northern

District of Illinois has revealed no responsive records regarding the above subject.” Jolly Decl.

at 19; Def.’s Mot., Exh. G (September 23, 2013, EOUSA Response) at 19. Both sides have now

cross-moved for summary judgment.

   II.    Legal Standard

         Summary judgment may be granted if “the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). A genuine issue of material fact is one that would change the outcome of the litigation.

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes over facts that

might affect the outcome of the suit under the governing law will properly preclude the entry of

summary judgment.”). In the event of conflicting evidence on a material issue, the Court is to

construe the conflicting evidence in the light most favorable to the non-moving party. See

Sample v. Bureau of Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006).

         FOIA cases typically and appropriately are decided on motions for summary judgment.

See Defenders of Wildlife v. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009); Bigwood v.

U.S. Agency for Int’l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007). In FOIA cases, the agency

bears the ultimate burden of proof. See U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136,


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142, n.3 (1989). The Court may grant summary judgment based solely on information provided

in an agency’s affidavits or declarations when they describe “the documents and the

justifications for nondisclosure with reasonably specific detail, demonstrate that the information

withheld logically falls within the claimed exemption, and 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).

   III. Analysis

       Congress enacted FOIA “to pierce the veil of administrative secrecy and to open agency

action to the light of public scrutiny.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976)

(citation omitted). “The basic purpose of FOIA is to ensure an informed citizenry, vital to the

functioning of a democratic society, needed to check against corruption and to hold the

governors accountable to the governed.” John Doe Agency v. John Doe Corp., 493 U.S. 146,

152 (1989) (citation omitted). The statute provides that “each agency, upon any request for

records which (i) reasonably describes such records and (ii) is made in accordance with

published rules . . . shall make the records promptly available to any person.” 5 U.S.C.

§ 552(a)(3)(A). Consistent with this statutory mandate, federal courts have jurisdiction to order

the production of records that an agency improperly withholds. See 5 U.S.C. § 552(a)(4)(B);

Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989).

       “Unlike the review of other agency action that must be upheld if supported by substantial

evidence and not arbitrary or capricious, the FOIA expressly places the burden ‘on the agency to

sustain its action’ and directs the district courts to ‘determine the matter de novo.’” Reporters

Comm., 489 U.S. at 755 (quoting 5 U.S.C. § 552(a)(4)(B)). “At all times courts must bear in

mind that FOIA mandates a ‘strong presumption in favor of disclosure’ . . . .” Nat’l Ass’n of


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Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (quoting Dep’t of State v. Ray, 502

U.S. 164, 173 (1991)). Although FOIA requires an agency to produce all records “reasonably

described,” a FOIA plaintiff may not expand the scope of his request once his original request is

made.

        Coss here has limited his request to the notebooks that Casas used to detail his drug

transactions. See Am. Compl., ¶¶ 6-7 & Prayer for Relief. In the following analysis, the Court

first considers EOUSA’s assertion that its unsuccessful search has satisfied FOIA and next

assesses the propriety of the FBI’s Glomar position.

        A. EOUSA

        In seeking summary judgment, EOUSA explains that, although it initially asserted a

Glomar response to Plaintiff’s request, it has since withdrawn that stance. Instead, the agency

maintains that it subsequently conducted a sufficiently thorough search for Casas’s notebooks

but came up empty. See Def.’s Mot at 6. Plaintiff takes issue with this argument, alleging that

Defendant employed incorrect spellings of “Casas” and “Adolfo,” thus rendering the search

defective. See Pl.’s Opp. at 9. Defendant has the better of this argument.

        The adequacy of an agency’s search for documents under FOIA “is judged by a standard

of reasonableness and depends, not surprisingly, upon the facts of each case.” Weisberg v. Dep’t

of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). The issue is, ultimately, whether an agency’s

search was “reasonably calculated to uncover all relevant documents.” Truitt v. Dep’t of State,

897 F.2d 540, 542 (D.C. Cir. 1990). To meet its burden, the agency may submit affidavits or

declarations that explain the scope and method of its search “in reasonable detail.” Perry v.

Block, 684 F.2d 121, 127 (D.C. Cir. 1982). Absent contrary evidence, such affidavits or

declarations are sufficient to show that an agency complied with FOIA. Id. The “adequacy of a


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FOIA search is generally determined not by the fruits of the search, but by the appropriateness of

the methods used to carry out the search.” Iturralde v. Comptroller of the Currency, 315 F.3d

311, 315 (D.C. Cir. 2003); see also Porter v. CIA, 778 F. Supp. 2d 60, 69 (D.D.C. 2011).

       Attached to their Motion, Defendants submitted affidavits from Vinay Jolly, Attorney-

Advisor, EOUSA, FOIA/PA Unit, and Sharon Getty, liaison in the Civil/Criminal Division of the

United States Attorney’s Office for the Northern District of Illinois, which detail the scope and

method of EOUSA’s search. After receiving Plaintiff’s narrowed request, Defendants

determined that the notebooks, if they existed, would be located in the USAO-N.D. Ill. office,

which is where Casas was tried. See Jolly Decl. at 3-4; see generally Nava-Salazar, 30 F.3d 788.

EOUSA thereafter searched its Legal Information Office Network System (LIONS) database and

the Northern District of Illinois’s Case Management (CM) and Electronic Case Files (ECF)

databases for “Adolfo Correa Coss, Ricardo Salazar, U.S. v. Ricardo Nova Salazar et al. Chicago

Police Department or Cook Country District Attorney’s office case 89 CR 16050 re: Adolfo

Correa Coss, Correa Coss, Adolfo Coss, Guillermo Casas, and Casas notebook,” ultimately

locating nine boxes in which Casas’s notebooks might be found. See Def.’s Mot., Exh. B

(Declaration of Sharon Getty) at 2-3. Upon obtaining payment from Plaintiff, EOUSA searched

all nine boxes but did not find the items. Id. at 3. The Court concludes that this constitutes “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 v. U.S. Dep’t of the Army,

920 F.2d 57, 68 (D.C. Cir. 1990).

       The sole argument Plaintiff can muster in opposition is to complain that the agency

searched for documents using incorrect spellings of his and Casas’s names. See Pl.’s Opp. at 9.

He is wrong. The Getty Declaration shows that Defendant searched for both names with correct



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spellings. See Getty Decl. at 2-3. On this point, Plaintiff is likely confusing EOUSA’s search

with the FBI’s, which utilized multiple spellings of “Adolfo” in an effort to cast a wider net. See

Def.’s Mot., Exh. 5 (Declaration of David M. Hardy) at 11-12.

         Because the Getty and Jolly Declarations establish that EOUSA (1) identified where the

relevant notebooks might be stored, (2) searched the nine boxes, and (3) certified that there were

no records systems or locations not searched where the notebooks might have been found, see

Jolly Decl. at 2-3; Getty Decl. at 2-3, the agency has complied with FOIA. See Perry, 684 F.2d

at 127. Summary judgment for EOUSA is thus proper here.

       B. FBI

        Although the Bureau stands by its Glomar response, it also interposes an exhaustion

defense – to wit, Coss never appealed the FBI’s invocation of Glomar and has thus failed to

exhaust his administrative remedies. The Court turns to that threshold question first.

               1. Exhaustion

         There is no dispute that “[a] FOIA requester is generally required to exhaust

administrative appeal remedies before seeking judicial redress.” CREW v. FEC, 711 F.3d 180,

184 (D.C. Cir. 2013) (citation omitted). The difficulty here is locating an FBI decision from

which Coss should have appealed. As set forth in Section I, supra, the FBI’s July 30, 2013,

Glomar response offered Plaintiff several avenues through which he might overcome the

Bureau’s position: have the third party sign an authorization form, prove the third party’s death,

or demonstrate that the public interest in disclosure outweighed the third party’s privacy

interests. Apparently picking door number three, Coss responded with his August 16 letter,

stating, “The public interest in ensuring that no innocent person is convicted of a crime far

outweighs any privacy interest in withholding the information.”


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       As the FBI never responded thereafter, it seems disingenuous for the Bureau to now

adopt a failure-to-appeal position. In other words, Plaintiff followed the instructions of the July

30 letter, and even though his justification was rather scant, the Bureau would still have needed

to reject it in order for Coss to know he should then pursue an appeal. Its radio silence left him

in FOIA limbo. In such an instance, the law makes clear that exhaustion is not a proper defense:

“[I]f an agency fails to make and communicate its ‘determination’ whether to comply with a

FOIA request within certain statutory timelines [20 working days here], the requester ‘shall be

deemed to have exhausted his administrative remedies.’” CREW, 711 F.3d at 184 (quoting 5

U.S.C. § 552(a)(6)(C)(i)). The Bureau, consequently, may not rely on exhaustion here.

               2. Glomar

       That preliminary matter cleared away, the Court may now address the viability of the

FBI’s Glomar position. A quick refresher on that doctrine may prove worthwhile.

       When an agency withholds documents, it typically must explain what has been withheld

and why. See, e.g., Vaughn v. Rosen, 484 F.2d 820, 825-28 (D.C. Cir. 1973) (requiring

“relatively detailed” and “specific” explanations of withholdings). There is, however, an

exception to this rule when “confirming or denying the existence of [certain] records would”

itself reveal protected information. Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 893

(D.C. Cir. 1995). Such a reply − refusing to confirm or deny the existence of records − is called

a Glomar response, named after a Cold-War-era CIA project that the agency wished to keep

confidential. See Marino v. Drug Enforcement Admin., 685 F.3d 1076, 1078 n.1 (D.C. Cir.

2012); Phillippi v. Cent. Intelligence Agency, 546 F.2d 1009, 1011 (D.C .Cir. 1976). “A Glomar

response 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



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withholding that information.’” Marino, 685 F.3d at 1078 n.1 (quoting Roth v. Dep’t of Justice,

642 F.3d 1161, 1178 (D.C. Cir. 2011)).

        For a Glomar response to be appropriate, the Government must show that revealing the

very existence of records would “cause harm cognizable under a[] FOIA exception.” Wolf v.

Cent. Intelligence Agency, 473 F.3d 370, 374 (D.C. Cir. 2007) (citation omitted). The

exemption at issue here is 7(C), which protects “records or information compiled for law

enforcement purposes . . . to the extent that the production of such law enforcement records or

information . . . could reasonably be expected to constitute an unwarranted invasion of personal

privacy.” 5 U.S.C. § 552(b)(7)(C).

        In this case, the FBI contends that the “disclosure of any information would tend to

identify a third-party individual, and the FBI discerned no public interest in disclosure of this

information and found that privacy interests were paramount.” Def. Reply at 3 n.1. Yet this is a

mere parroting of the standard without any clear thought about what is actually sought here. All

Coss demands in this suit are the notebooks in which Casas detailed his drug transactions. Their

existence is not secret; indeed, it is printed for all to see in the pages of the federal reporter. As

the Seventh Circuit explained, “From above a trapdoor in Casas’ bedroom closet, DEA agents

recovered . . . some notebooks . . . . [which] contained records and tabulations of multiple multi-

kilogram cocaine transactions.” Nava-Salazar, 30 F.3d at 795.

        As Coss simply seeks the notebooks that were admitted in Casas’s and his co-defendants’

trial, this is not a case in which Plaintiff is endeavoring to unmask the identity of an informant or

to compromise anyone’s security. He has made clear on multiple occasions, furthermore, that all

personally identifying material that does not refer to him may be redacted. See, e.g., August 16,




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2013, Letter. Refusing to acknowledge whether or not the notebooks exist borders on

foolishness.

       As a practical matter, however, Coss might be wise not to get his hopes up. EOUSA’s

failure to locate the notebooks in the nine boxes relating to the conspiracy trial could well mean

that the FBI has no greater success. Yet, at the least, it will have to search for them. Once it has

done so and relayed the results to Coss, the parties can inform the Court how they wish to

proceed.

       One final observation is in order. The FBI notes that, as a courtesy once the suit was

filed, it searched its Central Records System using Coss’s name and located no material. See

Hardy Decl., ¶ 24. This could well be relevant had Plaintiff’s request been for FBI records

pertaining to himself. Given that he sought only the Casas notebooks, it is unsurprising that

these documents were not uncovered in such a search. While these efforts by the Bureau deserve

commendation, they are no substitute for a targeted search for the actual notebooks.

   IV. Conclusion

       For the reasons set forth above, the Court will issue a contemporaneous Order granting

each side’s Motion in part and denying it in part.

                                                            /s/ James E. Boasberg
                                                            JAMES E. BOASBERG
                                                            United States District Judge
Date: April 15, 2015




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