United States District Court, D. Columbia.
[Copyrighted Material Omitted]
For ADOLFO CORREA COSS, Plaintiff: Thomas K. Ragland, LEAD ATTORNEY, BENACH RAGLAND LLP, Washington, DC; Marlene A. Dougherty, PRO HAC VICE, LAW OFFICE OF MARLENE A. DOUGHERTY, Brownville, TX.
For UNITED STATES DEPARTMENT OF JUSTICE, Executive Office of U.S. Attorneys, ERIC H. HOLDER, JR., U.S. Attorney General, Defendants: Rhonda Lisa Campbell, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.
JAMES E. BOASBERG, United States District Judge.
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.
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, 246 Ill.App.3d 1041, 617 N.E.2d 138, 186 Ill.Dec. 899 (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, 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 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., ...