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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 defendant’s Second Motion for Summary Judgment 

[Dkt. No. 34]. For the reasons discussed below, 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.”), Ex. A (FOIA Request dated October 18, 

2011).)*

 In relevant part, plaintiff’s FOIA request reads: 

The records sought are but [are] not limited to: (1) Any and all information 

concerning the criminal records of the “Deactivated” “DEA”-CI of Carlos 

Aguilar-Alvarez #CS-01-102375, (2) the disclosure of the DEA-CI cooperation 

contract (DEA-473) the full and complete signed form DEA-473 by the CIAguilar-Alvarez and the “DEA”. (3) According to a Sworn Affidavit of the DEA 

SA Anthony J. Casullo of Las Vegas NV DO Group 1, Carlos Aguilar-Alvarez 

was “Activated” as a confidential informant (“CI”) by the “DEA” in October of 

 *

 It appears that the FOIA request dated October 18, 2011 is a signed copy of the request dated 

October 16, 2011. 
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2003, and on February 4, 2009, the “CI” Aguilar-Alvarez was “Deactivated” by 

the “DEA” for being an untruthful and unreliable witness . . . . (4) This request 

also seek[s] the disclosure of records regarding 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 original).) Attached to the request was a copy of the sworn 

affidavit of DEA Special Agent Anthony J. Casullo, Jr., describing the circumstances under 

which Aguilar-Alvarez was “debriefed” in October of 2003 “regarding the illicit drug trafficking 

activities of [plaintiff Rene Oswald Cobar] and his 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 investigation 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 judgment motion, the Court rejected the DEA’s 

Glomar response because the Aguilar-Alvarez’s identity as a confidential 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 required to disclose the content of any particular 

record,” but that “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. (quoting Am. Civil Liberties Union v. CIA, 710 F.3d 

422, 432 (D.C. Cir. 2013)). 

Having considered defendant’s second motion 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. 
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First, it is not clear whether the DEA has actually 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 records (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 William C. Little, Jr. (“Second Little Decl.”) 

[Dkt. No. 34-2] ¶ 44.) The affidavit explained that “investigative records and information related 

to . . . Aguilar-Alvarez are reasonably likely to be contained or maintained in the DEA 

Investigative Reporting and Filing 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 affidavit further concluded that “[n]o other systems of 

records maintained by DEA are reasonably likely to contain the records plaintiff requested.” (Id. 

¶ 11.) 

 However, the affidavit does not clearly establish that DEA actually searched the 

aforementioned databases for responsive documents. 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 FOIA 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 obligated 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 records 
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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 responsive records to the Court for in camera review. 

 The Court is also uncertain on what basis the DEA neither confirms nor denies the 

existence of criminal history records 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 declarant 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).) Instead, 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 records “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 system 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 source[,]” 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 Confidential Source file at the time it 

received plaintiff’s FOIA request, that information 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.) 
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Perhaps because DEA never performed a search, the declarant does not explain whether 

the Confidential Source file for Aguilar-Alvarez contains any criminal history records. To the 

extent it does, those records are DEA records subject to FOIA and their 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 history records pertaining to AguilarAlvarez that were DEA’s possession at the 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 before June 20, 2014, produce for the Court’s in 

camera review all agency records that are responsive to plaintiff’s request and file a renewed 

motion for summary judgment that explains the exemptions invoked to justify its withholdings 

under FOIA. 

 SO ORDERED. 

 

 /s/ 

 ELLEN SEGAL HUVELLE 

 United States District Judge 

DATE: May 2, 2014