                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

___________________________________
                                    )
RENE OSWALD COBAR,                  )
                                    )
                  Plaintiff,        )
                                    )
            v.                      )                        Civil Action No. 12-1222 (ESH)
                                    )
U.S. DEPARTMENT OF JUSTICE,         )
                                    )
                  Defendant.        )
___________________________________ )


                                  MEMORANDUM OPINION

       Plaintiff Rene Oswald Cobar has sued the United States Department of Justice (“DOJ”),

alleging that it has violated the Freedom of Information Act, 5 U.S.C. § 552 et seq. (“FOIA”).

(Compl., Aug. 13, 2012 [ECF No. 12].) Before the Court is defendant’s motion for summary

judgment (Def. Mot., Nov. 26, 2012 [ECF No. 22]), plaintiff’s opposition (Pl. Opp., Jan. 2, 2013

[ECF No. 24]), and defendant’s reply (Def. Reply, Jan. 14, 2013 [ECF No. 25].) For the reasons

discussed below, defendant’s motion will be denied.

                                        BACKGROUND

       In October 2011, plaintiff submitted a request under the FOIA to the Drug Enforcement

Administration (“DEA”) seeking information about a third party, Carlos Javier Aguilar-Alvarez,

whom plaintiff identified as a DEA “confidential informant.” (Compl. at 2; id., Ex. A (“FOIA

Request”), at 1.) Plaintiff’s request sought “full disclosure and release of records and

information contained in the files of your Agency concerning . . . Carlos Javier Aguilar-

Alvarez,” specifically, but not limited to, his “criminal records,” his “activation” in October 2003

and his “deactivation” in February 2009 as a “confidential informant (“CI”)” “(# CS-01-
102375),” his “signed” “DEA-CI cooperation contract (DEA-473),” and records of a “prior

deactivation on or about December 2003.” (FOIA Request at 1.) Attached to the FOIA request

was a copy of a sworn affidavit from DEA Special Agent Anthony J. Casullo, Jr., dated October

13, 2010, and a DEA Report of Investigation from Agent Casullo dated January 22, 2004. (Id.,

Ex. A (“Casullo Aff.”) & Ex. B (“Casullo Rep.”.) Casullo’s affidavit states (1) that his “duties as

a Special Agent with DEA include[d] the investigation of Rene COBAR and other members of

his drug trafficking and money laundering organization,” (2) that in “October of 2003, [he]

debriefed an individual by the name of Carlos AGUILAR-ALVAREZ . . . regarding the illicit

drug trafficking activities of COBAR and his associates” and “[s[hortly thereafter, AGUILAR-

ALVAREZ was activated as a Confidential Source (CS) by the DEA and [Casullo] became his

controlling agent,” (3) that “[f]rom October of 2003 until on or about October of 2009, [Casullo]

conducted numerous investigations based on information and assistance provided by AGUILAR-

ALVAREZ,” (4) that “[o]n February 4, 2010, AGUILAR-ALVAREZ was deactivated by the

DEA for providing untruthful information during an investigation initiated in October of 2009,”

specifically about a “debriefing on December 8, 2009,” (5) that “AGUILAR-ALVAREZ was

subsequently polygraphed regarding this information and ‘failed miserably’ according to the

polygrapher” and “admitted during the interview with the polygrapher that he had made false

statements to the controlling agents regarding the target of the investigation and debriefing on

December 8, 2009,” and (7) that “[o]n December 29, 2009, an undercover officer purchased

three ounces of heroin which an investigation revealed had been supplied to the seller by

AGUILAR-ALVAREZ,” after which “AGUIILAR-ALVAREZ was determined to be unreliable

and untruthful and deactivated as a CS.” (Casullo Aff. ¶¶ 3-7.) Casullo’s Report of

Investigation from January 2004 does not mention Aguilar-Alvarez by name, but refers to the

                                                 2
debriefing of a deactivated confidential source on December 11, 2003, who is identified as CS-

01-102375. (Casullo Rep. at 1.)

       The DEA’s response to plaintiff’s FOIA request, dated October 26, 2011, states that

“DEA neither confirms nor denies the existence of records relating to Carlos Javier Aguilar-

Alvarez, being a confidential source/informant or that he provided information that assisted this

agency in any investigation matter.” (Compl., Ex. B (“FOIA Response”), at 1.) The DEA

justified its response, known as a Glomar response, by claiming that the existence of the records

sought by plaintiff would be exempt from release pursuant to FOIA Exemption 7(D) (id.), which

protects from disclosure “law enforcement records” that “could reasonably be expected to

disclose the identity of a confidential source [or] . . . information furnished by a confidential

source.” 5 U.S.C. § 552(b)(7)(D).

       Plaintiff appealed the denial of his FOIA Request to DOJ’s Office of Information Policy.

(Compl., Ex. C, at 1 (“FOIA Appeal”).) Citing a Ninth Circuit Court of Appeals’ decision,

Pickard v. Dep’t of Justice, 653 F.3d 782 (9th Cir. 2011), plaintiff argued that a Glomar response

was unavailable because Aguilar-Alvarez’s “identity as a confidential source was revealed in

open court” when he testified against plaintiff at trial in February 2009. (FOIA Appeal at 1-2

(citing United States v. Cobar, No. 2:07-cr-0014 (D. Nev. Feb. 2009)).) Aguilar-Alvarez’s

testimony at Cobar’s criminal trial, which plaintiff did not attach to his FOIA appeal but has

since provided to the Court (see Pl. Opp., Ex. A (“Aguilar-Alvarez Test.”)), identified Casullo as

his “primary handler” and “supervis[or],” confirmed that he met with Casullo during the

investigation of Cobar, and confirmed that he “signed the federal DEA agreement in December

of 2003.” (Aguilar-Alvarez Test. at 1.)



                                                  3
       On May 22, 2012, the Office of Information Policy affirmed DEA’s Glomar response

“on partly modified grounds.” (Compl., Ex. D (“Appeal Decision”), at 1.) Instead of Exemption

7(D), the decision relied on Exemption 7(C), which exempts from disclosure “law enforcement

records” that “could reasonably be expected to constitute an unwarranted invasion of personal

privacy.” 5 U.S.C. § 552(b)(7)(C). According to the decision, “to the extent that responsive

records exist, without consent, proof of death, official acknowledgement of an investigation, or

an overriding public interest, disclosure of law enforcement records concerning an individual

could be expected to constitute an unwarranted invasion of personal privacy” and “DEA was not

required to conduct a search for the requested records” as “any records responsive to [plaintiff’s]

request would be categorically exempt from disclosure.” (Id. at 1.)

       Following the denial of his appeal, plaintiff filed the complaint that is now before the

Court, seeking an order directing defendant to produce the records described in his FOIA

request. (Compl. at 1.) Defendant filed a motion for summary judgment, supported by a

declaration from William C. Little, Jr. (“Little Decl.”), an attorney in the DEA’s Office of Chief

Counsel, Administrative Law Section. Defendant’s motion asserts that it is entitled to summary

judgment because its Glomar response was appropriate under Exemption 7(C) or, in the

alternative, under Exemption 7(D) or 7(F). Plaintiff argues in his opposition that “a Glomar

response is no longer appropriate,” because Aguilar-Alvarez’s status as a confidential informant

has been publicly acknowledged and officially confirmed by the Cassulo affidavit, Aguilar-

Alvarez’s trial testimony, and by the district judge in plaintiff’s criminal case when he ruled on

plaintiff’s motion for a new trial (Pl.’s Opp. at 6-9; id., Ex. C (Order, United States v. Cobar,

No. 2:07-cr-0014 (D. Nev. July 14, 2011) (“July 2011 Order”)).) In its July 2011 Order, the

Nevada district court stated that “Aguilar-Alvarez was working as a confidential source for the

                                                 4
LVMPD in August of 2003” and that “[i]n October of 2003, the DEA activated Aguilar-Alvarez

in conjunction with its own investigation of [Cobar].” 1 (July 2011 Order, slip op. at 3.)

                                           ANALYSIS

       A Glomar response permits an agency to “‘refuse to confirm or deny the existence of

records,’ in limited circumstances.” American Civil Liberties Union v. CIA, 710 F.3d 422, 426

(D.C. Cir. 2013) (quoting Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007)). It 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. (quoting Roth v. U.S. Dep’t of Justice, 642 F.3d 1161, 1178 (D.C. Cir. 2011).

Generally, a Glomar response is “permitted only when confirming or denying the existence of

records would itself ‘cause harm cognizable under a FOIA exception.’” Id. (quoting Roth, 642

F.3d at 1178); see Elec. Privacy Info. Ctr. v. Nat’l Sec. Agency, 678 F.3d 926, 931 (D.C. Cir.

2012) (citing Wolf, 473 F.3d at 374). In addition, the FOIA expressly provides that when

“informant records maintained by a criminal law enforcement agency under an informant’s name

or personal identifier are requested by a third party according to the informant’s name or

personal identifier, the agency may treat the records as not subject to the requirements of

[FOIA], unless the informant’s status as an informant has been officially confirmed.” 5 U.S.C. §

552(c)(2); see also Benavides v. Drug Enforcement Admin., 968 F.2d 1243, 1246 (D.C. Cir.

1992) (describing § 552(c)(2) as “express legislative authorization for a Glomar response”).

Conversely, “when an informant’s status has been officially confirmed, the requirements of




       1
         On December 27, 2011, the court vacated the July 2011 Order and filed an amended
order, but the same language appears in both orders.

                                                 5
FOIA govern, and the agency must acknowledge the existence of any records it holds.”

Benavides, 964 F.2d at 1243.

       “Under the FOIA, the burden is on the agency to sustain its action.” ACLU v. CIA, 710

F.3d at 427. According to defendant, DEA provides a Glomar response “to requests for

investigative information related to third-parties where no release authorization or proof of death

is provided in order to protect the [third parties’] privacy interests.” (Little Decl. ¶ 57.) The

DEA takes the “position that merely confirming that any individual is mentioned in a DEA

investigative record system or that DEA is in possession of records is a disclosure . . . in and of

itself [and] would constitute an unwarranted invasion of an individual’s personal privacy” for

purposes of Exemption 7(C). (Id.) According to defendant, if DEA did conduct a search and

refuse to release any responsive records, “DEA would effectively acknowledge the status of any

individual[] that is a source of information” (id. ¶ 61), while if it were to offer a “no records”

response, the requester would be left with the impression that agency staff had searched for but

had not located responsive records. (Id. ¶ 58.) A Glomar response thus serves to protect

individuals’ privacy interests while preventing a requester from reaching an erroneous

conclusion. (Id. ¶¶ 58, 61.)

       In a typical confidential informant case, defendant’s justifications for a Glomar response

relying on Exemption 7(C) may make perfect sense. But where the identity of a confidential

informant has been officially confirmed, the reasons justifying a Glomar response no longer

apply. See, e.g., Boyd v. Criminal Division of the U.S. Dep’t of Justice, 475 F.3d 381, 389 (D.C.

Cir. 2007) (“Where an informant’s status has been officially confirmed, a Glomar response is

unavailable, and the agency must acknowledge the existence of any responsive records it

holds.”) (citing Benavides v. Drug Enforcement Admin., 968 F.2d 1243, 1246 (D.C. Cir. 1992));

                                                  6
Pickard v. Dep’t of Justice, 653 F.3d 782, 788 (9th Cir. 2011) (Glomar response unavailable

with respect to individual’s “status as a confidential informant” where government had

“previously officially confirmed . . . status as an informant”); Memphis Publishing Co. v.

Federal Bureau of Investigation, 879 F. Supp. 2d 1 (D.D.C. 2012) (same); North v. U.S. Dep’t of

Justice, 810 F. Supp. 2d 205, 209 (D.D.C. 2011) (same); Hidalgo v. FBI, No. 04-cv-0562, 2005

WL 6133690, at *2 (D.D.C. Sept. 29, 2005) (same). Here, there can be no question that the

identity of the confidential informant has been officially confirmed in light of Casullo’s sworn

affidavit, the content of Aguilar-Alvarez’s public testimony at Cobar’s criminal trial, and the

district judge’s opinion in July 2011 denying Cobar’s motion for a new trial. Accordingly, a

Glomar response is not available and defendant is not entitled to summary judgment.

       The unavailability of a Glomar response as to the existence of responsive records does

not mean that DEA is required to disclose the content of any particular record. See ACLU v.

CIA, 710 F.3d at 432 (“‘whether the contents–as distinguished from existence–of the officially

acknowledged records may be protected from disclosure’” raises a distinct question (quoting

Wolf, 473 F.3d at 380)). Rather, defendant 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 those documents.” Id.; see also Pickard, 653 F.3d at

788 (after failure of Glomar response, government must “take the next step” and “raise whatever

exemptions might be appropriate as to the contents of those records, and let the district court




                                                 7
determine whether the contents, as distinguished from the existence, of the officially confirmed

records may be protected from disclosure under the DEA’s claimed exceptions”).2

                                        CONCLUSION

        Accordingly, and for the reasons stated above, defendant’s motion for summary judgment

is denied. A separate Order accompanies this Memorandum Opinion.



                                                               /s/
                                                    ELLEN SEGAL HUVELLE
                                                    United States District Judge

Date:




        2
        Having concluded that defendant’s motion for summary judgment must be denied
because a Glomar response is not permitted, plaintiff’s other arguments in opposition to
defendant’s motion are not addressed.

                                                8
