United States District Court, D. Columbia.
[Copyrighted Material Omitted]
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 brings this action against the United States Department of Justice (" DOJ" ), alleging that the Drug Enforcement Administration (" DEA" ) violated the Freedom of Information Act, 5 U.S.C. § 552 et seq. (" FOIA" ), by failing to produce documents responsive to his FOIA request. (Compl., Aug. 13, 2012 [ECF No. 12].) Before the Court is defendant's third motion for summary judgment. (Def.'s Renewed Mot. for Summary Judgment, June 20, 2014 [ECF No. 41] (" Def.'s 3d SJ Mot." ).) For the reasons stated herein, the motion will be granted in part and denied in part.
I. FACTUAL BACKGROUND
A. Plaintiff's FOIA Request
In October 2011, plaintiff submitted a request under the FOIA to the DEA seeking information about a third party, Carlos
Javier Aguilar-Alvarez, who had testified against plaintiff at his criminal trial. (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, identifying Aguilar-Alvarez as a DEA confidential source (" CS" ), and a DEA Report of Investigation from Agent Casullo dated January 22, 2004, referencing by the same CS number the deactivation and debriefing of a CS in December 2003. ( Id., Ex. A (" Casullo Aff." ) & Ex. B (" Casullo Rep." ).)
B. The DEA's Response
The DEA's response to plaintiff's FOIA request was to state that it " 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.) It explained that " no search is conducted in instances where there is a request for information related to the identity of a confidential source or information provided by a source" because all of the information sought would be exempt from release pursuant to FOIA Exemption 7(D). ( Id.)
C. Administrative Appeal
Plaintiff appealed the denial of his FOIA Request to DOJ's Office of Information Policy (" OIP" ). (Compl., Ex. C, at 1 (" FOIA Appeal" ).) On May 22, 2012, the OIP affirmed DEA's response " on partly modified grounds." (Compl., Ex. D (" Appeal Decision" ), at 1.) Instead of Exemption 7(D), OIP relied on Exemption 7(C), asserting that since " any records responsive to [plaintiff's] request would be categorically exempt from disclosure" under Exemption 7(C), the DEA " was not required to conduct a search for the requested records." ( Id. at 1.)
II. PROCEDURAL BACKGROUND
A. Plaintiff's Complaint
Following OIP's 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.
B. Defendant's First Motion for Summary Judgment
Defendant first moved for summary judgment on the ground that the DEA's refusal to confirm or deny the existence of records responsive to plaintiff's FOIA request -- known as a Glomar response -- was appropriate under Exemption 7(C) or, in the alternative, under Exemption 7(D) or 7(F), because confirming or denying the existence of records responsive to plaintiff's FOIA request would itself cause harm cognizable under Exemption 7(C), 7(D), or 7(F). (Def.'s Mot. for Summary Judgment at 4-5, Nov. 26, 2012 [ECF No. 22].) The Court denied that motion on the ground that the record established that Aguilar-Alvarez's status as a confidential informant had been publicly acknowledged and officially confirmed, thus precluding a Glomar response. See Cobar v. U.S. Dep't of Justice, 953 F.Supp.2d 1, 4-5 (D.D.C. 2013) (" Cobar I " ) (citing Boyd v. Criminal Div. of the U.S. Dep't of Justice, 475 F.3d 381, 389, 374 U.S.App.D.C. 372 (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." ). Accordingly, the Court directed defendant to " '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. at 5(quoting Am. Civil Liberties Union v. CIA, 710 F.3d 422, 432, 404 U.S.App.D.C. 235 (D.C. Cir. 2013)); see also Pickard v. Dep't of Justice, 653 F.3d 782, 788 (9th Cir. 2011) (after failure of Glomar response, " government must take the next step" and " raise whatever other exemptions might be appropriate, and let the district court 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" ). The Court emphasized 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 ...