Rios v. United States, 275 F. Supp. 3d 88

Background

Pro se plaintiff Alex Rios filed a FOIA suit against DOJ/DEA seeking (1) records about DEA Special Agent Bruce D. Lange (third-party records) and (2) records about Rios himself (first-party records).
DEA initially required either Lange’s notarized authorization or proof of his death before processing third-party requests, and told Rios to certify his identity for first-party records (DOJ Form 361 or equivalent). DEA warned unperfected requests would be administratively closed.
Rios submitted multiple "reformulated" requests (including an August 15, 2016 submission with DOB, SSN, and a 28 U.S.C. § 1746 declaration); DEA searched some litigation files (consuming free search time) and found no responsive Lange records, estimated further fees, and asked Rios to perfect requests.
During litigation DEA reviewed MSPB materials and concluded those did not justify disclosure of DEA-held records; DEA stated it awaited Rios’s identity certification to proceed with searching for his records.
The government moved to dismiss or for summary judgment arguing Rios failed to exhaust administrative remedies (no Lange authorization/proof of death and no identity certification). The court rejected the exhaustion defense as to first-party records because Rios had in fact complied with identity verification, and found DEA’s changed position on third-party processing moot.
The court denied the motion without prejudice and ordered DEA to propose a schedule for further proceedings; it clarified FOIA does not obligate an agency to obtain records from other agencies or create documents.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Rios satisfied DOJ identity-verification for first-party records	Rios submitted DOB, SSN, signed request with §1746 declaration — satisfies verification	DEA contended Rios failed to submit DOJ Form 361 and thus did not perfect the request	Court: Rios complied via §1746 declaration and provided required identity info; DEA must now process his Aug. 15, 2016 request
Whether Rios failed to exhaust administrative remedies for third-party (Lange) records	Asked DEA to search; argued DEA’s earlier requirement for Lange authorization/proof was not absolute and DEA conducted searches during litigation	DEA argued Rios never provided Lange’s authorization or proof of death so agency properly refused to confirm/deny; exhaustion lacking	Court: DEA’s changed litigation position (conducting searches) made exhaustion defense moot; denial of summary judgment on exhaustion grounds
Whether DEA must retrieve records from other agencies or create responsive documents	Rios sought records allegedly referenced in MSPB dockets and criminal cases	DEA maintained it is not required to search other agencies’ files or create records; that FOIA applies only to records in DEA custody/control	Court: Reminded parties that FOIA does not require DEA to obtain records from MSPB/other agencies or create documents; agency’s obligation limited to records in its possession and to conduct reasonable searches
Adequacy of DEA’s searches to date	Implied that DEA had not located responsive records and should search further	DEA conducted searches of litigation files and found no responsive records; estimated fees for further searching	Court did not rule on full adequacy of search on merits; denied summary judgment and left further proceedings to determine search scope/fees

Key Cases Cited

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (summary judgment standard)
Wilbur v. CIA, 355 F.3d 675 (exhaustion principle for FOIA)
Bayala v. United States Dep't of Homeland Sec., 827 F.3d 31 (exhaustion is substantive, not jurisdictional)
McGehee v. Central Intelligence Agency, 697 F.2d 1095 (agency must disclose records in its custody/control)
Ancient Coin Collectors Guild v. United States Dep't of State, 641 F.3d 504 (adequacy of FOIA search standard)
Forsham v. Harris, 445 U.S. 169 (FOIA does not require agencies to create records)