                             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 AND ORDER

            This matter is before the Court on defendant’s Second Motion for Summary Judgment

[Dkt. No. 34]. For the reasons discussed below, the motion will be denied without prejudice.

            Plaintiff brought this action under the Freedom of Information Act (“FOIA”), 5 U.S.C.

§ 552, seeking information pertaining to Carlos Javier Aguilar-Alvarez, who testified as a

confidential informant at a trial in which plaintiff was convicted of conspiracy to import five or

more kilograms of cocaine. (Compl., Aug. 13, 2012 [Dkt. No. 12] at 2 & Ex. A (FOIA Request

dated October 16, 2011); Def.’s Mem. of P. & A. in Supp. of its Mot. for Summ. J. [Dkt. No. 22-

2], Decl. of William C. Little, Jr. (“Little Decl.”), Ex. A (FOIA Request dated October 18,

2011).)* In relevant part, plaintiff’s FOIA request reads:

        The records sought are but [are] not limited to: (1) Any and all information
        concerning the criminal records of the “Deactivated” “DEA”-CI of Carlos
        Aguilar-Alvarez #CS-01-102375, (2) the disclosure of the DEA-CI cooperation
        contract (DEA-473) the full and complete signed form DEA-473 by the CI-
        Aguilar-Alvarez and the “DEA”. (3) According to a Sworn Affidavit of the DEA
        SA Anthony J. Casullo of Las Vegas NV DO Group 1, Carlos Aguilar-Alvarez
        was “Activated” as a confidential informant (“CI”) by the “DEA” in October of
        *
          It appears that the FOIA request dated October 18, 2011 is a signed copy of the request dated
October 16, 2011.

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       2003, and on February 4, 2009, the “CI” Aguilar-Alvarez was “Deactivated” by
       the “DEA” for being an untruthful and unreliable witness . . . . (4) This request
       also seek[s] the disclosure of records regarding a prior “deactivation” of the CI-
       Aguilar-Alvarez on or about December 2003 by the SA Anthony J. Casullo at Las
       Vegas DO Group 1 . . . .
(Compl., Ex. A (emphasis in original).) Attached to the request was a copy of the sworn

affidavit of DEA Special Agent Anthony J. Casullo, Jr., describing the circumstances under

which Aguilar-Alvarez was “debriefed” in October of 2003 “regarding the illicit drug trafficking

activities of [plaintiff Rene Oswald Cobar] and his associates.” (Compl., Ex. F ¶ 4.) According

to Special Agent Casullo, “[o]n February 4, 2010, AGUILAR-ALVAREZ was deactivated by

the DEA for providing untruthful information during an investigation initiated in October of

2009.” (Id. ¶ 6.)

          The DEA initially treated plaintiff’s FOIA request as one “for criminal investigative

records maintained by DEA related to a third party” and provided a Glomar response. (Little

Decl. ¶¶ 18, 57.) After briefing on a summary judgment motion, the Court rejected the DEA’s

Glomar response because the Aguilar-Alvarez’s identity as a confidential informant had been

officially confirmed. Cobar v. U.S. Dep’t of Justice, 953 F. Supp. 2d 1, 5 (D.D.C. 2013). In so

doing, the Court clarified that “[t]he 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,” but that “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. (quoting Am. Civil Liberties Union v. CIA, 710 F.3d

422, 432 (D.C. Cir. 2013)).

          Having considered defendant’s second motion for summary judgment, plaintiff’s

opposition, the DEA’s affidavit, and all other record evidence, the Court is unable to conclude

that the DEA has followed the Court’s prior instructions and fulfilled its duties under FOIA.

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First, it is not clear whether the DEA has actually performed a search for agency records

responsive to plaintiff’s request. While defendant’s brief suggests that the DEA “searched” its

file systems for responsive records (Def.’s Mem. of P. & A. in Support of its Second Mot. for

Summ. J. (“Def.’s Mem.”) [Dkt. No. 34-1] at 5-6), the supporting affidavit is ambiguous on the

point. (See Def.’s Mem., Supplemental Decl. of William C. Little, Jr. (“Second Little Decl.”)

[Dkt. No. 34-2] ¶ 44.) The affidavit explained that “investigative records and information related

to . . . Aguilar-Alvarez are reasonably likely to be contained or maintained in the DEA

Investigative Reporting and Filing System, JUSTICE/DEA-008 (IRFS)” and that information as

to Aguilar-Alvarez’s “status . . . as a confidential source is reasonably likely to be found in the

DEA Operations Files, JUSTICE/DEA-011.” (Id. ¶ 10 (emphasis added).) Within those

databases, the affidavit then identified what types of records “would contain information

responsive to plaintiffs’ request.” (Id. ¶ 34 (as to confidential source status); see also id. ¶ 22 (as

to criminal investigative records).) The affidavit further concluded that “[n]o other systems of

records maintained by DEA are reasonably likely to contain the records plaintiff requested.” (Id.

¶ 11.)

         However, the affidavit does not clearly establish that DEA actually searched the

aforementioned databases for responsive documents. Instead, it appears that the DEA may be

asserting exemptions under FOIA based solely on the scope and content of plaintiff’s request.

An agency cannot avoid its duty to perform a FOIA search by describing a proposed search and

predicting – whether accurately or not – that all responsive documents would be exempt from

disclosure. Because the DEA does not deny that it has records that are likely to be responsive to

plaintiff’s request, “it was obligated to search those records.” Morley v. Cent. Intelligence

Agency, 508 F.3d 1108, 1119 (D.C. Cir. 2007). If the DEA has not yet searched for records



                                                   3
responsive to plaintiff’s request, it must do so. And once the DEA has performed its search (or if

it already has), it must produce all responsive records to the Court for in camera review.

       The Court is also uncertain on what basis the DEA neither confirms nor denies the

existence of criminal history records pertaining to Aguilar-Alvarez. Defendant’s brief states that

the DEA is employing a Glomar response as to any such criminal history records (in particular

those unrelated to Aguilar-Alvarez’s role as a confidential informant in plaintiff’s case). (See

Def.’s Mem. at 5-6, 21-22.) However, DEA’s declarant explicitly states that “DEA is no longer

neither confirming or denying the existence of DEA records responsive to plaintiff’s request.”

(Second Little Decl. ¶ 44 (emphasis added).) Instead, DEA seems to refuse to confirm or deny

the existence of any responsive criminal history records because they “are not DEA records or

maintained in a DEA record system administered by DEA.” (Id. ¶ 4.) DEA’s declarant explains

that the DEA obtains criminal history records “from the Federal Bureau of Investigation,

Criminal Justice Information Systems, [and] the National Crime Information Center,” and that no

criminal history records are obtained from a system maintained or administered by the DEA.

(Id.) The declarant also states, however, that an informant’s Confidential Source file would

“contain documents and reports related to the source[,]” such as “Criminal History records which

consist of NCIC/CCH/III Criminal Records Checks.” (Id. ¶ 27.) If DEA had acquired and

possessed “Criminal History records” in Aguilar-Alvarez’s Confidential Source file at the time it

received plaintiff’s FOIA request, that information would be a DEA record subject to FOIA

disclosure unless an exemption applied. See U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136,

144-45 (1989) (the term “agency record” is broad enough to include records acquired by an

agency.)




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       Perhaps because DEA never performed a search, the declarant does not explain whether

the Confidential Source file for Aguilar-Alvarez contains any criminal history records. To the

extent it does, those records are DEA records subject to FOIA and their existence cannot be

“neither confirmed nor denied” by the DEA as non-agency records. The DEA accordingly shall

produce for the Court’s in camera inspection any criminal history records pertaining to Aguilar-

Alvarez that were DEA’s possession at the time plaintiff filed his FOIA request.

                                            ORDER

       For the foregoing reasons, it is hereby

       ORDERED that Defendant’s Second Motion for Summary Judgment [ECF No. 34] is

DENIED WITHOUT PREJUDICE; and further it is

       ORDERED that defendant shall, on or before June 20, 2014, produce for the Court’s in

camera review all agency records that are responsive to plaintiff’s request and file a renewed

motion for summary judgment that explains the exemptions invoked to justify its withholdings

under FOIA.

       SO ORDERED.



                                                                /s/
                                                     ELLEN SEGAL HUVELLE
                                                     United States District Judge

DATE: May 2, 2014




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