953 F. Supp. 2d 1
D.D.C.2013Background
- Plaintiff FOIA request to DEA seeking records about confidential informant Aguilar-Alvarez (CS-01-102375) and related materials, including activation/deactivation dates and cooperation contract, with supporting Casullo affidavit and Casullo report.
- DEA issued a Glomar response stating it would not confirm or deny existence of records; relied on Exemption 7(D) to protect confidentiality of a source.
- Plaintiff appealed to DOJ’s Office of Information Policy, which relied on Exemption 7(C) to justify a non-search/disclosure approach.
- Nevada district court judge publicly confirmed Aguilar-Alvarez’s informant status in related proceedings, undermining the initial Glomar justification.
- OPINION: Plaintiff filed suit seeking production of records; defendant moved for summary judgment; court denied summary judgment, concluding Glomar not available given official confirmation of informant status.
- Court determines the next step is for defendant to provide a Vaughn index or equivalent description and litigate exemptions to the contents, not the existence, of records.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a Glomar response is still permissible after informant status is officially confirmed | Cobar argues Aguilar-Alvarez’s status was publicly acknowledged (Casullo affidavit, trial testimony, July 2011 order) | DEA contends Glomar remains appropriate to avoid disclosing contents; confirming existence could harm privacy | Glomar not available; summary judgment denied |
| Whether the case requires production of a Vaughn index for contents of records | If records exist, they should be reviewed for exemptions | Content exemptions can be litigated after production is acknowledged | Court requires production of a Vaughn index and assessment of exemptions to contents, not to existence |
Key Cases Cited
- ACLU v. CIA, 710 F.3d 422 (D.C. Cir. 2013) (Glomar and disclosure standards for agency records)
- Wolf v. CIA, 473 F.3d 370 (D.C. Cir. 2007) (Glomar-related limits and disclosure principles)
- Roth v. U.S. Dep’t of Justice, 642 F.3d 1161 (D.C. Cir. 2011) (FOIA exemptions and existence vs. content protection)
- Benavides v. Drug Enforcement Admin., 968 F.2d 1243 (D.C. Cir. 1992) (Informant status official confirmation triggers FOIA requirements)
- Pickard v. Dep’t of Justice, 653 F.3d 782 (9th Cir. 2011) (Glomar unavailable once informant status officially confirmed)
- Memphis Publishing Co. v. Federal Bureau of Investigation, 879 F. Supp. 2d 1 (D.D.C. 2012) (Glomar considerations when informant status publicly acknowledged)
- North v. U.S. Dep’t of Justice, 810 F. Supp. 2d 205 (D.D.C. 2011) (Official confirmation negates Glomar in FOIA disclosures)