United States District Court, District of Columbia
RENE OSWALD COBAR, Plaintiff, Pro se, OAKDALE, LA.
For U S DEPARTMENT OF JUSTICE, Defendant: Sobia Haque, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.
ELLEN SEGAL HUVELLE, United States District Judge.
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.
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 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.)
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 ...