Cobar v. U.S. Department of Justice ( 2015 )

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 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.
BACKGROUND
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.”).)1
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
1
Casullo’s affidavit states (1) that his “duties as a Special Agent with DEA include[d] the
investigation of Rene COBAR and other members of his drug trafficking and money laundering
organization,” (2) that in “October of 2003, [he] debriefed an individual by the name of Carlos
AGUILAR-ALVAREZ . . . regarding the illicit drug trafficking activities of COBAR and his
associates” and “[s[hortly thereafter, AGUILAR-ALVAREZ was activated as a Confidential
Source (CS) by the DEA and [Casullo] became his controlling agent,” (3) that “[f]rom October
of 2003 until on or about October of 2009, [Casullo] conducted numerous investigations based
on information and assistance provided by AGUILAR-ALVAREZ,” (4) that “[o]n February 4,
2010, AGUILAR-ALVAREZ was deactivated by the DEA for providing untruthful information
during an investigation initiated in October of 2009,” specifically about a “debriefing on
December 8, 2009,” (5) that “AGUILAR-ALVAREZ was subsequently polygraphed regarding
this information 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
December 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-ALVAREZ was determined to be unreliable and untruthful and deactivated as a
CS.” (Casullo Aff. ¶¶ 3-7.)
2
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 response2 – was appropriate under Exemption 7(C) or, in the alternative, under
2
A Glomar response permits an agency to respond to a FOIA request by “refus[ing] to confirm
or deny the existence of records . . . when confirming or denying the existence of records would
itself cause harm cognizable under a FOIA exception.” Am. Civil Liberties Union v. CIA, 710
F.3d 422, 426 (D.C. Cir. 2013) (internal quotations omitted).
3
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 (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 (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
any particular record.” Cobar I, 953 F. Supp. 2d at 5; see also Am. Civil Liberties Union v. CIA,
710 F.3d at 432 (after the “collapse of the [agency’s] Glomar response,” “whether the contents–
as distinguished from existence–of the officially acknowledged records may be protected from
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disclosure’” by a particular FOIA exemption is a separate question) (quoting Wolf v. CIA, 473
F.3d 370, 380 (D.C. Cir. 2007)).
C. DEA’s Second Motion for Summary Judgment
Defendant filed its second motion for summary judgment on December 2, 2013, asserting
that it was entitled to summary judgment because (1) it had conducted a reasonable search for
“confidential source” records and determined that all such records were exempt from disclosure
under FOIA Exemptions 7(C), (D) and/or (F); and (2) that it was asserting a Glomar response to
the request to search for “criminal history records” that were “unrelated” to Aguilar-Alvarez’s
status as a confidential source because a third-party’s criminal history would be categorically
exempt from disclosure under FOIA Exemption 7(C). (Def.’s Renewed Mot. for Summary
Judgment, Dec. 2, 2013 [ECF No. 34].) Upon review, the Court again denied summary
judgment, explaining that it was “unable to conclude that the DEA has followed the Court’s prior
instructions and fulfilled its duties under [the] FOIA” to search for responsive records as opposed
to “asserting exemptions under [the] FOIA based solely on the scope and content of plaintiff’s
request.” Cobar v. U.S. Dep’t of Justice, No. 12-1222, 2014 WL 725767, at *2 (D.D.C. May 2,
2014) (“Cobar II”). Accordingly, the Court directed the DEA to search for responsive records if
it had not already done so, and to “produce all responsive records to the Court for in camera
review,” including “any criminal history records pertaining to Aguilar-Alvarez that were [in]
DEA’s possession at the time plaintiff filed his FOIA request.” (Id.)
D. DEA’s Third Motion for Summary Judgment
On June 20, 2014, defendant filed its third motion for summary judgment, indicating that
it had completed its search for responsive records and located a total of 46 responsive pages, all
of which were being withheld in full pursuant to FOIA Exemptions 7(C), (D), (E) and/or (F).
5
(Mem. in Support of Def.’s 3d SJ Mot. at 8, June 20, 2014 [ECF No. 41-1] (“Def.’s 3d SJ
Mem.”).) On October 2, 2014, defendant produced records for the Court’s in camera review.
(See Order at 2, Oct. 3, 2014 [ECF No. 48].) However, because the records provided to the
Court included records that were not responsive to plaintiff’s FOIA request intermingled with the
responsive records, and because there was no index or other indication of how the responsive
documents corresponded to the descriptions and bases for withholding set forth in the declaration
attached to defendant’s renewed motion for summary judgment, the Court “declined to review
the records at that time” and ordered defendant “to prepare and file a Vaughn index to the
records that it has identified as responsive to plaintiff’s FOIA request and an updated declaration
that corresponds to that index.” (Id.) After defendant filed its Vaughn index identifying 47
responsive documents, totaling 59 pages (see Vaughn Index, Nov. 24, 2014 [ECF No. 50]) and
updated declaration (see Third Supp. Decl. of William C. Little, Jr. (REDACTED), Dec. 8, 2014
[ECF No. 55-1] (“Supp. Decl.”)), plaintiff renewed his opposition and moved for the release of
most of the withheld documents (Pl.’s Opp., Feb. 2, 2015 [ECF No. 59]), and defendant filed an
updated reply. (Def.’s Reply, Feb. 19, 2015 [ECF No. 61].) On February 12, 2015, the Court
conducted its in camera review of the withheld documents and will now consider the merits of
defendant’s third motion for summary judgment.
ANALYSIS
I. LEGAL STANDARD
Summary judgment is appropriate when the pleadings and evidence show that “there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). On “summary judgment the inferences to be drawn
6
from the underlying facts . . . must be viewed in the light most favorable to the party opposing
the motion.” Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Judicial
Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013). Where, as here, a plaintiff
is proceeding pro se, the Court has “an obligation to construe pro se filings liberally.”
Toolasprashad v. Bureau of Prisons, 286 F.3d 576, 583 (D.C. Cir. 2002); Haines v. Kerner, 404
U.S. 519, 520–21 (1972).
“FOIA cases typically and appropriately are decided on motions for summary judgment.”
See, e.g., Higgins v. U.S. Dep’t of Justice, 919 F. Supp. 2d 131, 139 (D.D.C. 2013) (internal
quotations omitted). To obtain summary judgment, a defendant agency must establish that it has
conducted an adequate search for responsive records, that each responsive record that it has
located either has been produced to the plaintiff or is exempt from disclosure, and that it has not
withheld any reasonably segregable information. See Weisberg v. Dep’t of Justice, 627 F.2d 365,
368 (D.C. Cir. 1980); Elec. Frontier Found. v. U.S. Dep’t of Justice, 739 F.3d 1, 12 (D.C. Cir.
2014). “[S]ummary judgment may be granted on the basis of agency affidavits if they contain
reasonable specificity of detail rather than merely conclusory statements, and if they are not
called into question by contradictory evidence in the record or by evidence of agency bad faith.”
Halperin v. CIA, 629 F.2d 144, 148 (D.C. Cir. 1980).
II. DEFENDANT’S THIRD MOTION FOR SUMMARY JUDGMENT
Defendant’s third motion for summary judgment asserts that it is entitled to summary
judgment because the DEA has “adequately searched for responsive records” and “properly
applied and explained how they applied the exemptions used to withhold records.” (Def.’s 3d SJ
Mem. at 2.) Defendant relies on FOIA Exemptions 7(C), (D), and (F) to justify its withholdings.
Those exemptions cover:
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records or information compiled for law enforcement purposes, but only to the
extent that the production of such law enforcement records or information . . . (C)
could reasonably be expected to constitute an unwarranted invasion of personal
privacy, (D) could reasonably be expected to disclose the identity of a
confidential source . . . and, in the case of a record or information compiled by
criminal law enforcement authority in the course of a criminal investigation . . . ,
information furnished by a confidential source, (E) would disclose techniques and
procedures for law enforcement investigations or prosecutions, or would disclose
guidelines for law enforcement investigations or prosecutions if such disclosure
could reasonably be expected to risk circumvention of the law, or (F) could
reasonably be expected to endanger the life or physical safety of any individual.
5 U.S.C. § 552(b)(7). The DEA is also withholding “specific information within the 47
documents that would be subject to redaction” pursuant to these exemptions along with
Exemption 7(E). (Def.’s Reply at 3-4.)
Plaintiff does not dispute the adequacy of the DEA’s search, and he does not object to
defendant’s withholding of certain information, but he does challenge some of defendant’s
withholdings, all based on his contention that “when or where an informant’s status has been
officially confirmed, the Government cannot [] withh[o]ld responsive records.’” (Pl.’s Opp. at
4).
Accordingly, the primary question for the Court is whether and to what extent an agency
can continue to withhold information pertaining to a confidential source once the identity of that
confidential source has been officially confirmed.
A. Exemption 7(D)
The Court will begin with Exemption 7(D), which Congress enacted specifically “to
assist federal law enforcement agencies to obtain, and to maintain, confidential sources, as well
as to guard the flow of information to these agencies.” See Parker v. Dep’t of Justice, 934 F.2d
8
375, 380 (D.C. Cir. 1991). Exemption 7(D) protects two distinct types of information: (1)
information “could reasonably be expected to disclose the identity of a confidential source”; and
(2) “information furnished by a confidential source.” 5 U.S.C. § 552(b)(7)(D). As addressed in
greater detail infra, there is no question that the documents defendant has withheld, with one
exception, contain the type of information normally protected by Exemption 7(D). The more
difficult question is whether the scope of 7(D)’s protection is altered by the fact that the identity
of the confidential source has been officially confirmed. To the extent plaintiff is arguing that
public knowledge of a confidential source’s identity precludes application of 7(D) to protect
information provided by that source, that proposition is clearly wrong. Exemption 7(D)
expressly protects each independently of the other. Moreover, for information or a record to lose
its protected status based on public disclosure, the information must truly be in the public domain
and there must be an exact identity between the publicly disclosed information or document and
the information or document sought under the FOIA. See, e.g., Students Against Genocide v.
Dep’t of State, 257 F.3d 828, 835-36 (D.C. Cir. 2001) (agency did not forfeit right to claim
exemption for some photographs by releasing others to plaintiff); Ancient Coin Collectors Guild
v. U.S. Dep’t of State, 641 F.3d 504, 510 (D.C. Cir. 2011) (“as a simple factual matter,
publication of part of a document does not put the rest into the public domain”); Wolf v. CIA, 473
F.3d at 378 (“a plaintiff asserting a claim of prior disclosure must bear the initial burden of
pointing to specific information in the public domain that appears to duplicate that being
withheld” (internal quotations omitted)); see also Irons v. FBI, 880 F.2d 1446, 1447-48 (1st Cir.
1989) (information provided by FBI’s confidential sources remains exempt from disclosure
under Exemption 7(D) even though the sources revealed other information at public trials).
9
The more difficult question is whether official confirmation of the identity of a
confidential source requires disclosure of information in agency records that would identify or
tend to identify that source. While the general rule on public disclosure suggests that such
information might no longer be protected, “Exemption 7(D) differs from other FOIA exemptions
in that its applicability depends not on the specific factual contents of a particular document;
instead, the pertinent question is whether the information at issue was furnished by a
‘confidential source’ during the course of a legitimate criminal law investigation.” Lesar v. U.S.
Dep’t of Justice, 636 F.2d 472, 492 (D.C. Cir. 1980). Recognizing this difference, and
considering the text of Exemption 7(D), its legislative history, and the caselaw, the D.C. Circuit
held that the public disclosure of the identity of a confidential source does not waive Exemption
D’s applicability. Parker v. Dep’t of Justice 934 F.2d at 380 (citing Irons, 880 F.2d at 1456-57
(public testimony by “confidential sources” does not waive the FBI’s right to invoke Exemption
7(D) to withhold the identity of a confidential source or information furnished by that source))3;
see also Reiter v. Drug Enforcement Admin., No. 96-cv-0378, 1997 WL 470108, at *6 (D.D.C.
Aug. 13, 1997) (“once an informant’s confidentiality has been established, almost nothing can
eviscerate Exemption 7(D) protection” and “an agency may continue to withhold information
from a source even after the source has been revealed to the requester or when the requester
3
The Court in Parker explained that it arrived at this conclusion because: (1) “the language of
the Exemption explicitly allows the government to withhold information furnished by a
confidential source and the identity of the source, but says nothing at all about waiver” or the
need to “balance interests”; (2) “the extensive legislative history of Exemption 7(D) indicates
that Congress intended we interpret [it] literally” so as “to provide a broad exemption for law
enforcement”; and (3) decisions in other circuits “have used broad language to describe the
application of the Exemption and have interpreted it to apply irrespective of the subsequent
public identification of the source or portions of the information.” Parker, 934 F.2d at 380
(internal quotations omitted).
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knows the source’s identity”), aff’d, No. 97-5246, 1998 WL 202247 (D.C. Cir. 1998); Plazas-
Martinez v. Drug Enforcement Admin., 891 F. Supp. 1, 4 (D.D.C. 1995) (“exemption (b)(7)(D)
applies to information given by an informant who was confidential at the time, even if the
informant later testifies at trial”).4
Accordingly, the Court rejects plaintiff’s contention that official confirmation of a
confidential source in any way diminishes the protection offered by Exemption 7(D).5
B. DEA’s Application of Exemption 7(D) to Withhold Particular Documents
Having concluded that the scope of Exemption 7(D) is not diminished by the fact that the
identity of a confidential source has been officially confirmed, the Court will now consider
whether defendant has properly applied that exemption to the documents it is withholding. As
explained infra, with one possible exception, defendant has properly applied Exemption 7(D) to
withhold the responsive records.
4
A number of other courts have come to the same conclusion. See Lame v. U.S. Dep’t of Justice,
654 F.2d 917, 925 (3d Cir. 1981) (“Since all the information given by a confidential source is
exempt, it follows that the release of a portion of such information does not lift the blanket
exemption. Courts have consistently held that the subsequent disclosure of information
originally given in confidence does not render non-confidential any of the information originally
provided.”); Radowich v. U.S. Atty., Dist. of Maryland, 658 F.2d 957, 960 (4th Cir. 1981)
(“district court erred in holding that the first clause of the exemption was inapplicable in this case
because the identities of the confidential sources were known”); Neely v. FBI, 208 F.3d 461, 466
(4th Cir. 2000) (Exemption 7(D) can be claimed to protect the identities of confidential sources
whose identities have previously been disclosed); Kimberlin v. Dep’t of Treasury, 774 F.2d 204,
208-09 (7th Cir. 1985) (“Assuming arguendo that this information was in fact disclosed, this
disclosure did not waive any claims of confidentiality under FOIA. The disclosure of
information given in confidence does not render non-confidential any of the information
originally provided.”); L & C Marine Transp., Ltd. v. United States, 740 F.2d 919, 924-25 (11th
Cir. 1984) (“The per se limitation on disclosure under 7(D) does not disappear if the identity of
the confidential source later becomes known through other means.”).
5
Neither Pickard v. Dep’t of Justice, 653 F.3d at 788, nor Roth v. U.S. Dep’t of Justice, 642 F.3d
1161 (D.C. Cir. 2011), the two cases plaintiff relies upon (see Pl.’s Opp. at 4), addresses this
issue.
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1. Properly Withheld Documents
All of the following documents include information that would identify the confidential
source, information that would tend to identify the confidential source, and/or information
provided by the confidential source that is protected from disclosure by Exemption 7(D).
a. DEA Form 6 & 6a, Report of Investigation Form
DEA Form 6 & 6a are “report of investigation forms” used by the DEA “to memorialize
investigation and intelligence activities, and information.” (Supp. Decl. ¶ 17.) Form 6, the
initial page, is a multi-block form with 15 numbered blocks plus a narrative section where
“investigative and intelligence information is recorded.” (Id.) Form 6a, the continuation page,
“consists of six (6) numbered blocks . . . followed by a narrative section.” (Id.) Four of the
documents defendant has withheld are Report of Investigation forms. (Supp. Decl. ¶ 13 & nn.4-
7) The first and second documents are “Quarterly Management Review[s] of CS [(Confidential
Source)] Utilization,” a report that is prepared by the “First Line Supervisor of the controlling
agent,” and “details the accomplishments of the CS during the quarter” (Supp. Decl. ¶ 25;
Vaughn Index at 1-15 (pp. 1-166)); the third document reports on a “deactivation” of the
confidential source (Vaughn Index at 16 (p. 17)); and the fourth document reports on “a
debriefing and reactivation” of the confidential source, including “drug related information
acquired by thoroughly questioning the [confidential source].”7 (Supp. Decl. ¶ 26; Vaughn Index
6
The page numbers in this and similar citations refer to the Bates stamp numbers the DEA put
on the responsive pages.
7
Plaintiff specifically requests release of the information on this form that pertains to the
confidential source’s “knowledge of drug proceeds” and “knowledge of financial criminal
information to include payment for drugs” (Pl.’s Opp. at 8), which is clearly information
provided by a confidential source.
12
at 17 (pp. 18-19).) As is apparent from the description of these documents in defendant’s
declaration and Vaughn index, and as confirmed by the Court’s in camera review, these
documents include information that would disclose the identity of the confidential source,
information that would tend to identify the confidential source, and information provided by the
confidential source and thus protected from disclosure by Exemption 7(D).
b. Form 512, Confidential Source Establishment Form
DEA Form 512, the Confidential Source Establishment Form, is a form that is
“completed at the time a source is established by a DEA office.” (Supp. Decl. ¶ 20.) There are
two Form 512s included in the withheld documents, each two pages long. (Supp. Decl. ¶ 13 &
n.8; Vaughn Index at 18-19 (pp. 20-23).) Plaintiff specifically seeks the release of the
information in Block 32 on both of these forms (Pl.’s Opp. at 4-5), which is the block for the
confidential source’s “Criminal History and other information re active warrants” (Supp. Decl.
¶¶ 20, 21.) Plaintiff strongly urges the Court to order the release of all information pertaining to
Aguilar’s criminal history. However, a person’s criminal history is information that could tend
to reveal the identity of a confidential source. Accordingly, defendant has properly withheld this
information under Exemption 7(D).
c. DEA Form 512b, Confidential Source Annual Suitability
Report and Recommendation
DEA Form 512b, the “Confidential Source Annual Suitability Report and
Recommendation,” is a form that is “completed on an annual basis during a source’s activation.”
(Supp. Decl. ¶ 22.) There are five Form 512bs included in the withheld documents, each two
pages long. (Supp. Decl. ¶ 13 & n.9; Vaughn Index at 20-24 (pp. 24-33).) Defendant’s
declaration includes a detailed description of the type of information included in each block of
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the form (see Supp. Decl. ¶ 22), and plaintiff specifically seeks release of the following
information: date of activation (Block 4); payments and other financial information pertaining to
the source (Blocks 6-7); criminal history information (Blocks 8, 8a, and 8b); assessments of the
source’s conduct and behavior (Blocks 9, 9a, 10a, 12 and 12a), and the assessment of the
source’s credibility and reliability (Block 15). (Pl.’s Opp. at 6.) It is apparent from the
description of the information at issue that all of it either would tend to reveal the identity of a
confidential source or information provided by a confidential source. Accordingly, all of this
information is protected from disclosure by Exemption 7(D).
d. DEA Form 512d, Confidential Source Deactivation Report
DEA Form 512d, the “Confidential Source Deactivation Report, is the form that
“memorializ[es] the deactivation of a confidential source.” (Supp. Decl. ¶ 23.) Defendant has
withheld one Form 512d. (Supp. Decl. ¶ 13 & n.10; Vaughn Index at 25 (pp. 34-35).)
Defendant’s declaration includes a detailed description of the type of information included in
each block of the form (Supp. Decl. ¶ 23), and plaintiff seeks release of the following
information: date of deactivation (Block 3); reason for deactivation (Block 5); assessment of the
reasons for the source’s cooperation (Block 6); cases in which the source testified and an
assessment of source’s performance (Block 7); payments, other financial information, judicial
consideration or other benefits to the source (Block 8); and whether the source was notified of
the deactivation, date and method (Block 10). Again, it is apparent from the description of the
information at issue that all of it either would tend to reveal the identity of a confidential source
or information provided by a confidential source. Accordingly, all of this information is
protected from disclosure by Exemption 7(D).
e. Criminal History Documents
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Defendant has withheld three documents the primary content of which is the criminal
history of the confidential source: (1) a memorandum with the subject line “disposition of
arrests” that “was generated to document an arrest” of the confidential source (Supp. Decl. ¶ 13
& n.12; Supp. Decl. ¶ 32; Vaughn Index at 33 (p. 50)); (2) the response to an query of the
Narcotics and Dangerous Drug Information System (“NADDIS”) which is made “to determine
whether an individual has been identified as being of investigative interest, such as a suspect,
criminal associate, target or witness, in any investigation” (Supp. Decl. ¶ 13 & n.13, ¶ 29;
Vaughn Index at 34 (p. 51)); and (3) the response to a query of a system administered by the
Federal Bureau of Investigation, Criminal Justice Information Systems, National Crime
Information Center (“NCIC”)” (“JABS”) for a “criminal history check.” (Supp. Decl. ¶ 13 &
n.15, ¶ 28; Vaughn Index at 37 (p. 56).) As the Court has previously explained, the criminal
history of a confidential source is protected from disclosure by Exemption 7(D) as it is
information that might tend to reveal the identity of a confidential source. Accordingly, the
information in these documents is protected under Exemption 7(D).
f. Documents Pertaining to the Confidential Source’s Family
Defendant has withheld five documents that pertain to the family of the confidential
source (1) two “DEA Threat Assessments,” which are documents that were “prepared in
association with application for the Significant Public Benefit Parole extension requested by
DEA that pertain to family members of Aguilar” and which include a “synopsis of events that
justified granting the continuation of residency in the United States for family members.” (Supp.
Decl. ¶ 13 & n.14, ¶ 30; Vaughn Index at 35-36 (pp. 52-55)); and (2) three memoranda from
U.S. Immigration and Customs Enforcement to the DEA “setting forth the requirements to
maintain the Significant Public Benefit Parole for family members of Aguilar.” (Supp. Decl. ¶
15
13 & n.16, ¶ 31; Vaughn Index at 38-40 (pp. 57-59).) The type of information in these
documents clearly falls within Exemption 7(D) as its release would tend to reveal the identity of
the confidential source.8
2. Documents To Be Released
DEA Form 473, the “Confidential Source Agreement,” is the document “used to
memorialize the conditions under which an individual will function as a DEA coded source.”
(Supp. Decl. ¶ 24.) It “contains the operable provisions of the agreement and the signature of the
source that is witnessed by a DEA agent or other third-party is included at the end of the
agreement.” (Id.) Defendant has withheld seven of these agreements (in both English and
Spanish). (Supp. Decl. ¶ 13 & n.11; Vaughn Index at 26-32 (pp. 36-49).) Plaintiff seeks access
to these documents in their entirety. Based on defendant’s declaration and Vaughn index, and
the Court’s in camera review, the Court is not persuaded that all of the information in these
documents has been properly withheld. Specifically, it does not appear that any of the generic
conditions set forth in the Confidential Source Agreement, standing alone, qualify for protection
under Exemption 7(D). Defendant appears to rely solely on the fact that these documents
“relate” to a confidential source, but that is not the applicable standard. Nor does defendant
provide any explanation for why this generic information would be exempt from disclosure
under any exemption. Accordingly, defendant will be ordered to provide plaintiff with redacted9
copies of these documents.
8
Plaintiff does not appear to challenge defendant’s withholding of these documents.
9
Defendant may redact from these documents CS identifier codes, CS initials, third-party
identifiers, signatures of law enforcement personnel, and any other information that has been
specifically identified on the documents the Court reviewed in camera or in the Vaughn index as
protected by a particular exemption. (See Vaughn Index at 26-32 (pp. 36-49).)
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C. Segregability
The Court is satisfied by defendant’s Vaughn index and supplemental declaration, and by
its own in camera review, that there is no reasonably segregable, non-exempt information in the
properly withheld documents.
CONCLUSION
Accordingly, and for the reasons stated above, defendant’s motion for summary judgment
will be granted in part and denied in part, plaintiff’s motion for the release of documents will be
granted in part and denied in part, and defendant will be ordered to release those documents not
properly withheld. A separate Order accompanies this Memorandum Opinion.
/s/ Ellen Segal Huvelle
ELLEN SEGAL HUVELLE
United States District Judge
Date: February 27, 2015
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