81 F. Supp. 3d 64
D.D.C.2015Background
- Cobar submitted a FOIA request to DEA for records about Carlos Javier Aguilar‑Alvarez (a third‑party who testified against him), seeking CI files, DEA‑CI contracts, activation/deactivation records, and criminal history.
- DEA issued a Glomar (neither confirm nor deny) response citing Exemption 7(D); OIP affirmed but relied on Exemption 7(C) instead.
- District court rejected DEA’s Glomar response because Aguilar‑Alvarez’s CI status had been officially confirmed, directed DEA to produce or index responsive records (Vaughn index) for in camera review.
- DEA located 47 responsive documents (59 pages) and withheld them in full under FOIA Exemptions 7(C), 7(D), 7(E), and 7(F); court conducted in camera review after DEA filed a Vaughn index and supplemental declaration.
- Central legal question: once a confidential source’s identity has been officially confirmed, to what extent may an agency still withhold records or information about that source under Exemption 7(D) (and related 7 exemptions)?
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether official confirmation of a CI’s identity defeats Exemption 7(D) protection for records about that CI | Cobar: official confirmation precludes withholding; government must release responsive records | DOJ: Exemption 7(D) still protects information identifying or furnished by a confidential source, even if identity is publicly known | Held: Official confirmation does not strip Exemption 7(D) protection; agency may withhold identifying/info furnished by CI |
| Whether DEA properly applied Exemption 7(D) to specific withheld forms (DEA Form 6/6a, 512, 512b, 512d) and criminal‑history queries | Cobar: seeks criminal history, activation/deactivation details, payments, assessments, etc. | DOJ: those forms contain CI identifiers or information furnished by the CI and are exempt under 7(D) (and other 7 exemptions where asserted) | Held: Withholdings on these forms were proper under Exemption 7(D) |
| Whether DEA improperly withheld DEA Form 473 (Confidential Source Agreement) in full | Cobar: requests full disclosure of Form 473s | DOJ: withheld because they relate to a CI | Held: Generic, non‑identifying provisions of Form 473 are not automatically exempt; DEA must produce redacted copies omitting CI identifiers and other protected details |
| Whether any nonexempt, reasonably segregable information remains in withheld documents | Cobar: seeks release of nonidentifying content | DOJ: asserts no reasonably segregable, nonexempt information in properly withheld documents | Held: Court found no reasonably segregable nonexempt information in the properly withheld documents; ordered limited redactions and release of redacted Form 473s |
Key Cases Cited
- Boyd v. Criminal Div. of the U.S. Dep’t of Justice, 475 F.3d 381 (D.C. Cir.) (Glomar unavailable where informant status officially acknowledged)
- Am. Civil Liberties Union v. CIA, 710 F.3d 422 (D.C. Cir.) (after Glomar collapse, court must review withheld contents under claimed exemptions)
- Pickard v. Dep’t of Justice, 653 F.3d 782 (9th Cir.) (government must produce and let court assess applicability of exemptions after Glomar failure)
- Wolf v. CIA, 473 F.3d 370 (D.C. Cir.) (distinguishes existence of records from contents; court review required after Glomar fails)
- Parker v. Dep’t of Justice, 934 F.2d 375 (D.C. Cir.) (public disclosure of a CI’s identity does not waive Exemption 7(D) protection)
- Lesar v. U.S. Dep’t of Justice, 636 F.2d 472 (D.C. Cir.) (7(D) focuses on whether info was furnished by a confidential source during investigation)
- Students Against Genocide v. Dep’t of State, 257 F.3d 828 (D.C. Cir.) (public release of some material does not necessarily place all related material in the public domain)
- Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504 (D.C. Cir.) (partial publication does not automatically waive FOIA exemptions for remaining portions)
- Irons v. FBI, 880 F.2d 1446 (1st Cir.) (information provided by confidential sources remains exempt under 7(D) even if sources later disclose other information at trial)