1 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 defe ndant’s Second Motion for Summary Judgment [Dkt. No. 34]. For the reasons discussed belo w, 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.”), E x. A (FOIA Request dated October 18, 2011).) * In relevant part, plain tiff’s FOIA request reads: The records sought are but [are] not lim ited to: (1) Any and all information concerning the criminal records of th e “Deactivated” “DEA”-CI of Carlos Aguilar-Alvarez #CS-01-102375, (2) the disc losure of the DEA-CI cooperation contract (DEA-473) the full and comp lete signed form DEA-473 by the CIAguilar-Alvarez and the “DEA”. (3) Accord ing to a Sworn Affidavit of the DEA SA Anthony J. Casullo of Las Vega s NV DO Group 1, Carlos Aguilar-Alvarez was “Activated” as a confidential informan t (“CI”) by the “DEA” in October of

* It appears that the FOIA request dated Oct ober 18, 2011 is a signed copy of the request dated October 16, 2011.2 2003, and on February 4, 2009, the “CI” Aguilar-Alvarez was “Deactivated” by the “DEA” for being an untruthful and unre liable witness . . . . (4) This request also seek[s] the disclosure of records re garding a prior “deactivation” of the CIAguilar-Alvarez on or about December 2003 by the SA Anthony J. Casullo at Las Vegas DO Group 1 . . . . (Compl., Ex. A (emphasis in orig inal).) Attached to the reque st was a copy of the sworn affidavit of DEA Special Agent Anthony J. Ca sullo, Jr., describing the circumstances under which Aguilar-Alvarez was “debriefed” in Octobe r of 2003 “regarding the il licit drug trafficking activities of [plaintiff Rene Oswald Cobar] and hi s 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 investiga tion 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 j udgment motion, the Cour t rejected the DEA’s Glomar response because the Aguilar-A lvarez’s identity as a conf idential 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 requi red to disclose the cont ent of any particular record,” but that “defendant mu st ‘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 mo tion 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.3 First, it is not clear whether the DEA has act ually 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 record s (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 Willia m C. Little, Jr. (“S econd Little Decl.”) [Dkt. No. 34-2] ¶ 44.) The affida vit explained that “investigative records and information related to . . . Aguilar-Alvarez are reasonably likely to be contained or maintained in the DEA Investigative Reporting and Fili ng 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 affida vit further concluded that “[n]o other systems of records maintained by DEA are reasonably likely to contain the records pl aintiff requested.” ( Id

. ¶ 11.) However, the affidavit does not clearly establish that DEA actually searched the aforementioned databases for responsive documen ts. 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 FO IA 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 obligat ed 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 records4 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 re sponsive records to the Court for in camera review. The Court is also uncertain on what basi s the DEA neither conf irms nor denies the existence of criminal history reco rds 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 decl arant 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).) In stead, 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 record s “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 syst em 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 sour ce[,]” 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 Confidentia l Source file at the time it received plaintiff’s FOIA request, that inform ation 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.)5 Perhaps because DEA never performed a sear ch, the declarant does not explain whether the Confidential Source file for A guilar-Alvarez contains any crimin al history records. To the extent it does, those records are DEA records s ubject to FOIA and thei r 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 histor y records pertaining to AguilarAlvarez that were DEA’s possession at th e 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 befo re June 20, 2014, produce for the Court’s in

camera review all agency records that are responsi ve to plaintiff’s request and file a renewed motion for summary judgment that explains the exemptions invoke d to justify its withholdings under FOIA. SO ORDERED.

/s/ ELLEN SEGAL HUVELLE United States District Judge DATE: May 2, 2014