Cobar v. DOJ, No. 12-1222, 2014 WL 1725767 (D.D.C. May 2, 2014) (Huvelle, J.)

Cobar v. DOJ, No. 12-1222, 2014 WL 1725767 (D.D.C. May 2, 2014) (Huvelle, J.)

Re: Request for records concerning confidential informant who testified at plaintiff's trial

Disposition: Denying defendant's second motion for summary judgment

• Procedural Requirements, Searching for Responsive Records:  The court holds that it "is unable to conclude that the DEA has followed the Court's prior instructions and fulfilled its duties under FOIA."  The court explains that "it is not clear whether the DEA has actually performed a search for agency records responsive to plaintiff's request."  The court relates that DEA's "affidavit does not clearly establish that DEA actually searched the aforementioned databases for responsive documents."  "Instead, it appears that the DEA may be asserting exemptions under FOIA based solely on the scope and content of plaintiff's request."  Therefore, the court finds that "[i]f the DEA has not yet searched for records responsive to plaintiff's request, it must do so."  The court further directs that "once the DEA has performed its search (or if it already has), it must produce all responsive records to the Court for in camera review."

• Procedural Requirements, "Agency Records":  The court rejects defendant's argument "to refuse to confirm or deny the existence of any responsive criminal history records because they 'are not DEA records or maintained in a DEA record system administered by DEA.'"  The court holds that "[t]o the extent [DEA] does [maintain criminal history records], those records are DEA records subject to FOIA and their existence cannot be 'neither confirmed nor denied' by the DEA as non-agency records."  The court directs that "[t]he DEA accordingly shall produce for the Court's in camera inspection any criminal history records pertaining to [the confidential informant] that were [in] DEA's possession at the time plaintiff filed his FOIA request."