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 Unit ed States Department of Justice (“DOJ”), alleging that it has violated the Freedo m of Information Act, 5 U.S.C. § 552 et seq . (“FOIA”). (Compl., Aug. 13, 2012 [ECF No. 12].) Before th e 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. Re ply, 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 Ja vier Aguilar-Alvarez, whom plaintiff identified as a DEA “conf idential informant.” (Compl. at 2; id ., Ex. A (“FOIA Request”), at 1.) Plai ntiff’s request sought “full disclo sure and release of records and information contained in the files of your Agen cy concerning . . . Carlos Javier AguilarAlvarez,” specifically, but not lim ited to, his “criminal records,” his “activation” in October 2003 and his “deactivation” in February 2009 as a “confidential informant (“CI”)” “(# CS-01-2 102375),” his “signed” “DEA-CI cooperation contra ct (DEA-473),” and records of a “prior deactivation on or about December 2003.” (FOIA Re quest at 1.) Attached to the FOIA request was a copy of a sworn affidavit from DEA Spec ial 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.”.) Ca sullo’s affidavit states (1) that his “duties as a Special Agent with DEA include[d] the inves tigation of Rene COBAR and other members of his drug trafficking and money laundering organization,” (2) th at in “October of 2003, [he] debriefed an individual by the name of Ca rlos AGUILAR-ALVAREZ . . . regarding the illicit drug trafficking activities of COBAR and his as sociates” and “[s[hortly thereafter, AGUILARALVAREZ was activated as a Confidential Sour ce (CS) by the DEA and [Casullo] became his controlling agent,” (3) that “[f]r om October of 2003 until on or about October of 2009, [Casullo] conducted numerous investigations based on information and assistance provided by AGUILARALVAREZ,” (4) that “[o]n February 4, 2010, AGUILAR-ALVAREZ was deactivated by the DEA for providing untruthful inform ation during an investigation initiated in October of 2009,” specifically about a “debri efing on December 8, 2009,” (5) that “AGUILAR-ALVAREZ was subsequently polygraphed regarding this inform ation 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 Decem ber 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-AL VAREZ was determined to be unreliable and untruthful and deactivated as a CS.” (C asullo Aff. ¶¶ 3-7.) Casullo’s Report of Investigation from January 2004 does not menti on Aguilar-Alvarez by name, but refers to the3 debriefing of a deactivated confidential sour ce on December 11, 2003, who is identified as CS01-102375. (Casullo Rep. at 1.) The DEA’s response to plaintiff’s FOIA re quest, dated October 26, 2011, states that

“DEA neither confirms nor denies the existence of records relating to Carlos Javier AguilarAlvarez, being a confidential source/informant or th at 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 re lease pursuant to FOIA Exemption 7(D) ( id .), which protects from disclosure “law enforcement reco rds” that “could reasonably be expected to disclose the identity of a confidential source [o r] . . . 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”).) Citi ng 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 “iden tity as a confidential source was revealed in open court” when he testified ag ainst plaintiff at trial in Febr uary 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 plaint iff 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],” conf irmed 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.)4 On May 22, 2012, the Office of Information Policy affirmed DEA’s Glomar response “on partly modified grounds.” (Compl., Ex. D (“A ppeal Decision”), at 1.) Instead of Exemption 7(D), the decision relied on Exem ption 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 acknowledge ment of an investigation, or an overriding public interest, di sclosure of law enforcement r ecords 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 record s” as “any records responsive to [plaintiff’s] request would be categorically exempt from disclosure.” ( Id . at 1.) Following the denial of his appe al, plaintiff filed the complaint that is now before the Court, seeking an order directing defendant to produce the records de scribed in his FOIA request. (Compl. at 1.) De fendant filed a motion for summary judgment, supported by a declaration from William C. Little, Jr. (“Little Decl.”), an attorn ey 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 unde r 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 Aguila r-Alvarez’s status as a confidential informant has been publicly acknowledged and officially confirmed by the Cassulo affidavit, AguilarAlvarez’s trial testimony, and by the district judge in plaintiff’s criminal case when he ruled on plaintiff’s motion for a new tr ial (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 th at “Aguilar-Alvarez was working as a confidential source for the5 LVMPD in August of 2003” and that “[i]n Oct ober 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 acknowle dge the existence of info rmation responsive to a FOIA request and provide specific, non-conclu sory 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 c ognizable 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 FO IA expressly provides that when “informant records maintained by a criminal law enforcement agency under an informant’s name or personal identifier are request ed by a third party according to the informant’s name or personal identifier, the agency may treat the r ecords as not subject to the requirements of [FOIA], unless the informant’s status as an inform ant 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 “exp ress legislative authorization for a Glomar response”). Conversely, “when an informant’s status has b een officially confirmed, the requirements of

1 On December 27, 2011, the court vacated th e July 2011 Order and filed an amended order, but the same language appears in both orders.6 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 partie s’] privacy interests.” (Little Decl. ¶ 57.) The DEA takes the “position that merely confirmi ng that any individual is mentioned in a DEA investigative record system or that DEA is in posse ssion of records is a disclo sure . . . in and of itself [and] would constitute an unwarranted in vasion 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 so urce of information” ( id. ¶ 61), while if it were to offer a “no records” response, the requester would be left with the impression that ag ency staff had searched for but had not located responsive records. ( Id. ¶ 58.) A Glomar response thus serves to protect individuals’ privacy interests while preven ting a requester from reaching an erroneous conclusion. ( Id. ¶¶ 58, 61.) In a typical confidential informant cas e, defendant’s justifications for a Glomar response relying on Exemption 7(C) may make perfect sens e. But where the identity of a confidential informant has been officially c onfirmed, 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 stat us 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));7 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 c onfidential 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 cr iminal trial, and the district judge’s opinion in Ju ly 2011 denying Cobar’s motion for a new trial. Accordingly, a

Glomar response is not available and defendant is not entitl ed to summary judgment. The unavailability of a Glomar response as to the existen ce 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 c ontents–as distinguished from existence–of the officially acknowledged records may be protected from disc losure’” raises a dis tinct 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 conten ts of those records, an d let the district court8 determine whether the contents, as distinguished fr om the existence, of the officially confirmed records may be protected from disclosu re under the DEA’s claimed exceptions”). 2

CONCLUSION Accordingly, and for the reasons stated a bove, defendant’s motion for summary judgment is denied. A separate Order acco mpanies this Memorandum Opinion.

/s/ ELLEN SEGAL HUVELLE United States District Judge

Date:

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