Marino v. DEA, No. 06-1255, 2014 WL 639409 (D.D.C. Feb. 19, 2014) (Kessler, J.)

Marino v. DEA, No. 06-1255, 2014 WL 639409 (D.D.C. Feb. 19, 2014) (Kessler, J.)

Re:  Request for records concerning government cooperator who testified against requester's deceased ex-husband at requester's trial for drug conspiracy.

Disposition:  Denying defendant's renewed motion for summary judgment; denying plaintiff's motion for summary judgment

• Procedural Requirements, Searching for Responsive Records:  The court "shall construe [plaintiff's husband's] request as one for all documents indexed to NADDIS number 3049901."  The court explains that "the second sentence of [plaintiff's husband's] request is reasonably read as neither a limitation on the scope of the request nor a request for the Government to answer a question, but as an explanation of why, in [plaintiff's husband's] view, the requested documents are not exempt from disclosure"  The court further explains that "[b]y contrast, the first sentence does define the scope of the request, and clearly and specifically seeks all documents indexed to NADDIS number 3049901."
   
• Exemption 7(C):  The court rejects "the Government's assertion of a categorical exemption" because the court finds that "[plaintiff] has plausibly demonstrated that Exemption 7(C) 'might' not apply to at least some of the responsive documents."  First, the court finds that defendant has not established that it conducted an adequate search because defendant "did not search" for "all documents indexed to NADDIS number 3049901, and not simply those that were made public or required to be made public at the two trials."  Second, the court finds that plaintiff has demonstrated that a public interest in the documents in question sufficient to "survive summary judgment."  The court explains that "even if the Government did not definitively know that [a witness] was perjuring himself at [plaintiff's husband's] trial, its failure to investigate and learn all of the facts about its key witness, and to disclose all exculpatory evidence to [plaintiff's husband], reasonably suggest that it 'might' have acted negligently or otherwise improperly during [plaintiff's husband's] prosecution."  Third, the court finds that defendant does not identify any basis for a categorical withholding.  The court notes that defendant "has not . . . demonstrated that it conducted an adequate search for responsive records," but "[e]ven if the DEA had conducted an adequate search, the DEA's categorical withholding is inappropriate because circumstances exist that do not 'characteristically support' the inference that Exemption 7(C)'s statutory requirements are satisfied."  The court explains that "to the extent the records detail [the witness's] own criminal activities, any privacy interest in such information is likely to have been greatly diminished by his public testimony on the same issues and voluntary participation in at least four public criminal proceedings."  Additionally, the court explains that "[plaintiff] has adduced evidence that DEA agents and prosecuting attorneys acted either negligently . . . or improperly."  Also, the court explains that "DEA puts forth no reason why redactions or selective withholding will not suffice to protect any existing privacy interests."
   
• Litigation Considerations, Vaughn Index / Declaration:  The court orders that "[a]fter the DEA searches its records in compliance with this Memorandum Opinion and Order, it shall prepare a Vaughn index, or other reasonably detailed description of the responsive records and the reasons for withholding them that will permit the Court to assess any exemptions claimed."  The court explains that defendant "has now withdrawn its Glomar response" and, "[h]aving done so, the DEA is now 'required to confirm that responsive records exist, then either release them or establish that they are exempt from disclosure.'"