98 F. Supp. 3d 28
D.D.C.2015Background
- Coss was convicted of drug trafficking in 1991 and later sought to exonerate himself using notebooks kept by a confidential informant (Casas) involved in his arrest.
- Coss filed a FOIA request seeking Casas’s notebooks and related material; FBI and EOUSA issued Glomar responses—refusing to confirm/deny existence.
- EOUSA later abandoned Glomar and claimed it conducted a thorough but fruitless search for the notebooks; FBI maintained Glomar and argued Coss failed to exhaust administrative remedies.
- Coss submitted multiple targeted FOIA requests (July–August 2013) directing attention to Casas’s notebooks; EOUSA identified nine boxes but found no responsive records; FBI did not locate the notebooks.
- Plaintiff filed suit July 2014; EOUSA produced a response in 2014 stating no responsive records; court grants in part to EOUSA and orders FBI to conduct a search for the notebooks; proceedings pending further action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exhaustion of administrative remedies under FOIA | FBI failed to respond, so exhaustion should be waived. | Exhaustion required; proper appeals were not pursued. | Exhaustion not proper defense; CREW rule applied; criteria satisfied due to agency silence. |
| Viability of the FBI Glomar response | Glomar should not apply; notebooks exist and are not sensitive; disclosure warranted. | Glomar protects existence of records to avoid harm to third party privacy. | Glomar viable only if disclosure would reveal protected information; here notebooks’ existence does not implicate third-party privacy; FBI must search. |
| Adequacy of EOUSA’s search for notebooks | EOUSA used wrong spellings and inadequate search scope. | Affidavits show reasonable search by locating nine boxes and searching them fully; spellings corrected. | EOUSA search reasonable; grants EOUSA summary judgment on FOIA compliance. |
| Scope of FOIA request and de novo review standard | FOIA requires disclosure; de novo review supports production of notebooks. | Agency searches and withholdings supported by exemptions; de novo review not automatic disclosure. | FOIA standard applied; the court ordered further action consistent with status of FBI search. |
Key Cases Cited
- Reporters Comm. for Freedom of the Press v. Dept. of Justice, 489 U.S. 749 (1989) (agency bears burden; de novo review in FOIA actions)
- Weisberg v. Dep’t of Justice, 745 F.2d 1476 (D.C. Cir. 1984) (reasonableness of search is judged by method, not fruits)
- Iturralde v. Comptroller of the Currency, 315 F.3d 311 (D.C. Cir. 2003) (adequacy of FOIA search depends on methods used)
- Perry v. Block, 684 F.2d 127 (D.C. Cir. 1982) (adequacy of search; detailed affidavits sufficient)
- Nation Magazine v. U.S. Customs Serv., 71 F.3d 885 (D.C. Cir. 1995) (Glomar exception for confirming/denying records; protects sensitive information)
- Nava-Salazar v. U.S., 30 F.3d 788 (7th Cir. 1994) (notebooks as part of trial record; relevance to FOIA request)