Stephen Aguiar v. DEA

Filing

OPINION [1687334] filed (Pages: 16) for the Court by Judge Garland. [16-5029]

USCA Case #16-5029

Document #1687334

Filed: 08/04/2017

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 8, 2017

Decided August 4, 2017

No. 16-5029
STEPHEN AGUIAR,
APPELLANT
v.
DRUG ENFORCEMENT ADMINISTRATION,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:14-cv-00240-ESH)

Masha Godina Hansford, appointed by the court, argued
the cause as amicus curiae in support of appellant. With her on
the briefs was Kannon K. Shanmugam.
Johnny H. Walker III, Assistant U.S. Attorney, argued
the cause for appellee. With him on the brief was R. Craig
Lawrence, Assistant U.S. Attorney. Caitlin O. Trujillo,
Assistant U.S. Attorney, entered an appearance.
Before: GARLAND, Chief Judge, and ROGERS and
MILLETT, Circuit Judges.

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-2Opinion for the court filed by Chief Judge GARLAND.
GARLAND, Chief Judge: After he was convicted of
narcotics offenses, Stephen Aguiar filed several Freedom of
Information Act requests for materials relating to his
investigation by the Drug Enforcement Administration (DEA).
The DEA denied two of the requests, saying that software
Aguiar identified was not an agency record and that copies of
administrative subpoenas he wanted could not be located. The
district court granted the DEA’s motion for summary judgment
as to both requests. Because the government’s declarations were
insufficient to support summary judgment in its favor, we vacate
the judgment and remand for further proceedings.
I
In 2009, the Drug Enforcement Administration joined a
criminal investigation of a drug-trafficking ring involving
Aguiar. During the investigation, the DEA installed a Global
Positioning System (GPS) tracker on at least one of his cars.
Agents used software to monitor the tracker and to visualize
tracking data on satellite maps. Around the same time, agents
issued administrative subpoenas seeking Aguiar’s telephone and
financial records. The investigation ultimately led to Aguiar’s
conviction on drug-trafficking charges, which the Second
Circuit affirmed in December 2013. See United States v.
Aguiar, 737 F.3d 251, 265 (2d Cir. 2013).
While his direct appeal in the Second Circuit was pending,
Aguiar made Freedom of Information Act (FOIA) requests
seeking materials from the investigation. Two requests are at
issue here.
First, Aguiar requested “all tracking information collected
via GPS devices attached to my vehicles,” along with “all . . .
proprietary software associated with that information.” Letter
from Stephen Aguiar to DEA (Aug. 19, 2013) (J.A. 102). In
response to that request, the DEA gave Aguiar a printed copy of

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-3spreadsheets listing latitude and longitude coordinates captured
by the GPS tracker that was attached to his Subaru Impreza.
Unsatisfied with these spreadsheets, which he found difficult to
interpret, Aguiar renewed his request for a copy of the software
the DEA used to visualize GPS coordinates on maps. In case the
DEA again refused to give him the software, Aguiar asked in the
alternative for images of the coordinates plotted onto satellite
maps. Letter from Stephen Aguiar to U.S. Dep’t of Justice (Apr.
1, 2014) (J.A. 139). The DEA did not provide either the
software or the map images.
Second, Aguiar requested four specific administrative
subpoenas that the DEA issued during its investigation. The
agency responded that it had already searched for them to no
avail. A few months before Aguiar’s request for the four
subpoenas, Aguiar had made several broader FOIA requests,
including one for “any administrative subpoena” issued from the
DEA’s Burlington, Vermont office during the investigation.
Letter from Stephen Aguiar to DEA (Aug. 1, 2013) (J.A. 101).
In response to those earlier requests, the DEA conducted a
search that it said would have located the four subpoenas that
Aguiar later specified.
In particular, according to a declaration from the chief of
the DEA’s FOIA unit, Katherine Myrick, Aguiar’s earlier
requests “were construed as seeking,” among other records,
“administrative subpoenas . . . pertaining to [Aguiar].” Decl. of
Katherine L. Myrick at 16 (Apr. 7, 2015) (J.A. 165) (“First
Myrick Declaration”). The declaration described how the
agency searched one of its record systems to locate two relevant
case files. Id. at 18-19 (J.A. 167-68). In describing the search
within those case files, however, all the declaration said was that
the “Burlington Resident Office was tasked with conducting a
search of the two (2) files for all records related to [Aguiar] to
include all investigative reports [and] administrative

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-4subpoenas.” Id. at 19 (J.A. 168). The DEA did not find the four
specific subpoenas Aguiar requested.
In 2014, Aguiar, acting pro se, filed a FOIA complaint in
the United States District Court for the District of Columbia,
challenging the DEA’s failure to release the GPS mapping
software, map images of the GPS data, the four administrative
subpoenas, and additional materials no longer at issue. The
DEA filed a motion for summary judgment, accompanied by
Myrick’s declaration describing the agency’s search.
After briefing from both sides, the district court ordered the
DEA to file a supplemental declaration identifying the “software
used by the DEA to create images from the GPS tracking data,
the nature of the DEA’s license to use that software,” and any
applicable FOIA exemption. Aguiar v. DEA, Civ. No. 1402401, slip op. at 2 (July 20, 2015). The court instructed that
the supplemental declaration should also explain whether the
DEA’s search encompassed the four specific subpoenas Aguiar
requested. Id. In response, Myrick filed a supplemental
declaration that did not address the software at all, although the
accompanying Notice of Compliance explained that counsel for
the DEA believed the software was licensed only for official
purposes. See Supp. Decl. of Katherine L. Myrick (Sept. 8,
2015) (J.A. 199) (“Second Myrick Declaration”); Notice of
Compliance at 4 n.5 (Sept. 9, 2015). The declaration did say,
however, that Aguiar’s request for the four subpoenas “was
duplicative of his earlier requests,” and that the “previous
searches would have uncovered all subpoena related
information.” See Second Myrick Declaration at 4 (J.A. 202).
The district court then granted summary judgment to the
DEA on all issues except Aguiar’s request for the software. As
to Aguiar’s alternative request for map images, the district court
held that producing those images would require creating a new
record, which FOIA does not compel. As to the subpoenas, the

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-5court held that the DEA had discharged its FOIA obligations by
performing an adequate search.
Regarding the software, however, the court found that the
record was still insufficient. Invited to supplement the record
again, the agency submitted another declaration, this time stating
that it had searched two DEA offices but concluded that it “was
not in possession or control of any system or software that was
responsive to [Aguiar’s] request.” Supp. Decl. of Katherine L.
Myrick at 3 (Nov. 10, 2015) (J.A. 223) (“Third Myrick
Declaration”). The district court accepted this declaration as
proving that the software “is not an agency record,” and granted
summary judgment to the DEA on the software issue. Aguiar v.
DEA, Civ. No. 14-02401, slip op. at 2 (Nov. 24, 2015).
Still acting pro se, Aguiar appealed the grant of summary
judgment. We appointed an amicus curiae to present arguments
in support of Aguiar’s position. For purposes of this opinion,
we will attribute to Aguiar the arguments made by the amicus
because Aguiar filed a statement expressly joining in those
arguments.
II
We review the district court’s grant of summary judgment
de novo. See Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d
208, 215 (D.C. Cir. 2013). A court may grant summary
judgment only if there is “no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a). “In FOIA cases, ‘summary judgment may
be granted on the basis of agency affidavits if they contain
reasonable specificity of detail rather than merely conclusory
statements, and if they are not called into question by
contradictory evidence in the record or by evidence of agency
bad faith.’” Judicial Watch, 726 F.3d at 215 (quoting Consumer
Fed’n of Am. v. Dep’t of Agric., 455 F.3d 283, 287 (D.C. Cir.
2006)). We must draw “all justifiable inferences” in favor of the

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-6non-movant, Aguiar. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986).
A
We begin with Aguiar’s request for a copy of the GPS
mapping software that was used to track his movements and
about which a DEA agent testified at Aguiar’s trial. The DEA
contends that the software is not subject to disclosure under
FOIA, which empowers district courts to order the production
of any “agency records improperly withheld.” 5 U.S.C.
§ 552(a)(4)(B). “The burden is on the agency to demonstrate,
not the requester to disprove, that the materials sought are not
‘agency records’ or have not been ‘improperly’ ‘withheld.’”
U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 n.3
(1989).
Although FOIA does not define “agency records,” the
Supreme Court and this court have identified limits on what
documents come within the term. It “extends only to those
documents that an agency both (1) ‘create[s] or obtain[s],’ and
(2) ‘control[s] . . . at the time the FOIA request [was] made.’”
Judicial Watch, 726 F.3d at 216 (alterations and emphasis in
original) (quoting Tax Analysts, 492 U.S. at 144-45). To
determine whether a document satisfies those requirements, “we
must ‘focus[] on a variety of factors surrounding the creation,
possession, control, and use of the document.’” Id. at 217
(quoting Consumer Fed’n, 455 F.3d at 287). In particular, to
determine “whether an agency has sufficient ‘control’ over a
document to make it an ‘agency record,’” this court usually
examines four factors:
[1] the intent of the document’s creator to retain or
relinquish control over the records; [2] the ability of
the agency to use and dispose of the record as it sees
fit; [3] the extent to which agency personnel have read
or relied upon the document; and [4] the degree to

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-7which the document was integrated into the agency’s
record system or files.
Id. at 217 (quoting Tax Analysts v. U.S. Dep’t of Justice, 845
F.2d 1060, 1069 (D.C. Cir. 1988), aff’d on other grounds, 492
U.S. 136 (1989)). Courts have also elaborated on the term
“withheld,” explaining that an agency can “withhold” a record
only if it has “possession or control” of it. Kissinger v.
Reporters Comm. for Freedom of the Press, 445 U.S. 136, 151
(1980); see DiBacco v. U.S. Army, 795 F.3d 178, 192 (D.C. Cir.
2015).
The DEA’s principal argument on appeal is that it simply
“does not have the requested software.” DEA Br. 12. To
establish that proposition, the DEA relies solely on the third
declaration Katherine Myrick filed in the district court. That
declaration states that the agency interpreted Aguiar’s request
“as seeking software in the possession and control of DEA that
would allow the inputting [of] longitude and latitude and display
the information on a map.” Third Myrick Declaration 2 (J.A.
222). The agency searched two DEA offices, the declaration
says, and concluded that it “was not in possession or control of
any system or software that was responsive to [Aguiar’s]
request.” Id. at 3 (J.A. 223).
The DEA asks us to read that statement to mean that the
DEA searched for the software and -- as a matter of fact -- found
nothing. But that is not what it says. It says only that the DEA
“was not in possession or control” of any responsive software -which is a legal assertion, and a conclusory one at that. By
using that legal language, the declaration appears to conclude as
a matter of law that the software is not in the agency’s
“possession or control,” rather than to explain as a matter of fact
that the software was not found. Even if that is not the only
reasonable interpretation of the declaration, we must view it in
that light -- the one most favorable to Aguiar, the non-moving
party -- on summary judgment. See Anderson, 477 U.S. at 255.

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-8Moreover, the DEA’s factual assertion on appeal -- [1] that
it “does not have the requested software” -- conflicts with
multiple statements the agency made in the district court that
suggested familiarity with the software and its location. In those
statements, the DEA told the court that: [2] the software is
“licensed proprietary software,” Mem. in Supp. of Def.’s Mot.
for Summ. J. at 28 n.8; [3] the software is “generic or
prefabricated right out of the box and available to others in the
open marketplace,” Reply to Pl.’s Opp. to Def.’s Mot. for
Summ. J. at 10; [4] the DEA “is unsure whether the software is
licensed, purchased, or used through another methodology,” but
“upon information and belief the [DEA] believes the software is
licensed to the DEA only for official government purposes,”
Notice of Compliance at 4 n.5; and [5] “the DEA has identified
many end users of GPS tracking software,” id. at 6. Moreover,
although Myrick’s third declaration concludes that the “DEA
was not in possession or control of any system or software that
was responsive to [Aguiar’s] request,” it acknowledges that [6]
the “DEA does contract for a service that allows for viewing the
location of a GPS tracking device[] on a geodetic map computer
image.” Third Myrick Declaration 3 (J.A. 223).
Asked at oral argument to reconcile these six divergent
descriptions, DEA counsel instead tacked on a seventh:
[7] There is a third party vendor that supplies a . . .
complex system, seemingly involving multiple
different types and installations of software . . . which
has the capability of receiving data from GPS devices
. . . . An agent at the DEA can then access those thirdparty servers, which likely have some kind of software
on them to control and organize this data, in order to
track those GPS devices in real time.
Oral Arg. Recording 30:28 - 31:05.

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-9Presented with these seven inconsistent descriptions, we do
not know how to square the heptagon. It may be that DEA is
saying it does not possess the software in the physical sense.
But that would not necessarily end the matter because a record
can be under an agency’s control even if not physically held by
the agency. In Burka v. U.S. Department of Health & Human
Services, for example, we held that, although the requested
records were “neither created by agency employees, nor . . .
located on agency property,” the agency had a close enough
relationship with the records to give the agency “constructive
control” over them. 87 F.3d 508, 515 (D.C. Cir. 1996); see also
Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, 827
F.3d 145, 150 (D.C. Cir. 2016) (holding that emails, although
stored on a private organization’s server, could nonetheless be
“agency records” if the agency retained “possession and
control”).
Or it may be that the DEA is saying the converse: that it
does not legally control the records even though they are
physically located on the agency’s premises. In Kissinger v.
Reporters Committee for Freedom of the Press, for example,
although notes Henry Kissinger made at the White House were
stored in his office at the State Department, the Supreme Court
held that they “were not in the control of the State Department
at any time” and so were never State Department “agency
records.” 445 U.S. at 157; cf. Goland v. CIA, 607 F.2d 339,
346-47 (D.C. Cir. 1978) (holding that an “agency’s possession
of a document, standing alone,” does not “dictate[] that it is an
‘agency record,’” and instead courts must evaluate “whether
under all the facts of the case” it has come within the agency’s
control).
As an alternative to its contention on appeal that it does not
have the requested software, the DEA argues that the record
contains sufficient facts to establish, as a legal matter, that it did
not “obtain[]” and does not “control[]” the software. Judicial

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-10Watch, 726 F.3d at 216. The DEA bears the burden of proving
either proposition, see Tax Analysts, 492 U.S. at 142 n.3, and
must do so beyond material factual dispute, see FED. R. CIV. P.
56(a).
The DEA cannot satisfy that burden for the same reason
discussed above: these are fact-intensive inquiries, yet the
record is at once devoid of actual evidence about the software
and replete with inconsistent descriptions of it. The DEA does
not explain where the software is located, what arrangement it
has with the software’s creator, how it uses the software, and
why those circumstances amount to something short of
obtaining and controlling the software. At best, the agency asks
the court to speculate about “the likelihood that the software
described by” a DEA agent at Aguiar’s trial “need not have been
‘obtained’ to be used by the DEA.” But it acknowledges that the
record “does not speak directly to” the legal factors governing
control. DEA Br. 17-18.
At bottom, we simply do not know enough about the
software to credit either of the DEA’s arguments: that it does
not have the software, or that it did not “obtain” and does not
“control” the software in a way that satisfies the legal definition
of an “agency record.” The district court repeatedly invited the
DEA to shed light on these questions by supplementing the
record. Because the agency declined those invitations, material
questions of fact remain. As a consequence, the DEA is not
entitled to summary judgment on this issue.
B
Aguiar also contends that, if he is not entitled to a copy of
the software, then he should at least receive the GPS tracking
data visualized “as images plotted on a map.” Amicus Br. 19.
The DEA, which has already given him that data as coordinates
in a spreadsheet, protests that creating maps would constitute
creating new agency records, which FOIA does not require. See

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-11Yeager v. DEA, 678 F.2d 315, 321 (D.C. Cir. 1982). Aguiar
responds that FOIA entitles him to the agency record in his
preferred format, see 5 U.S.C. § 552(a)(3)(B), and that maps are
merely another format of the GPS tracking data.
Aguiar presents this argument as a “fallback position,”
Amicus Br. 32, with respect to his request for a copy of the GPS
mapping software. Because we vacate the district court’s grant
of summary judgment on that request and remand for further
proceedings, it remains possible that Aguiar will prevail in
seeking the software. Accordingly, reaching Aguiar’s fallback
request today would be premature. If the district court again
enters judgment against Aguiar, he can bring another appeal.
C
The remaining FOIA request at issue is for four
administrative subpoenas, which the DEA searched for but did
not find. Contending that its search was adequate to discharge
its FOIA obligations, the DEA sought and the district court
granted summary judgment. We vacate and remand for further
proceedings on this issue as well.
The agency is entitled to summary judgment only if it
“show[s] beyond material doubt that it has conducted a search
reasonably calculated to uncover all relevant documents.”
Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007) (quoting
Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C.
Cir. 1983)). To meet that burden, the agency may submit, and
we may rely on, “reasonably detailed affidavit[s], setting forth
the search terms and the type of search performed, and averring
that all files likely to contain responsive materials (if such
records exist) were searched.” DiBacco, 795 F.3d at 188
(quoting Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321,
326 (D.C. Cir. 1999)). But “if a review of the record raises
substantial doubt, particularly in view of well defined requests
and positive indications of overlooked materials,” then we must

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-12deny summary judgment. Id. (quoting Valencia-Lucena, 180
F.3d at 326).
Here, the DEA’s declarations described its search in the
following way. The DEA construed Aguiar’s request to include
“all criminal investigative records, including administrative
subpoenas, pertaining to or referencing [Aguiar] by name.”
Second Myrick Declaration 2 (J.A. 200). The agency believed
that “[a]ny administrative subpoena maintained by DEA was
reasonably likely to be found in an investigative case file
maintained in the DEA Investigative Reporting and Filing
System (IRFS),” id., and that “no other record systems are
reasonably likely to contain” the subpoenas, First Myrick
Declaration 17 (J.A. 166). The agency identified two relevant
investigative case files in IRFS, using Aguiar’s biographical
details and an agency database. First Myrick Declaration 18
(J.A. 167). Then, “[t]he Burlington Resident Office was tasked
with conducting a search of [those] files for all records related
to [Aguiar] to include all . . . administrative subpoenas.” Id. at
19 (J.A. 168). This search turned up several subpoenas, but not
the four Aguiar specifically requested.
1. The DEA’s declarations explain how it found the two
case files, but not how it searched within those files. All they
say is that one DEA office “was tasked with conducting a
search” of the files for subpoenas. Id. That is little different
than the affidavit we encountered in DeBrew v. Atwood, which
described only the agency employees to whom the search “was
assigned,” “why they were chosen,” and what they found. 792
F.3d 118, 122 (D.C. Cir. 2015). That description, we held, was
“not sufficiently detailed to support a summary judgment
because it does not disclose the search terms . . . and the type of
search performed.” Id.; see Weisberg v. U.S. Dep’t of Justice,
627 F.2d 365, 370 & n.49 (D.C. Cir. 1980) (holding that an
affidavit that “merely states the fact that [an employee] searched
and expresses his conclusion that the files contain nothing

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-13[responsive]” “gives no detail as to the scope of the examination
and thus is insufficient as a matter of law”); see also Morley,
508 F.3d at 1122 (holding that an affidavit that “merely
identifies the [agency components] that were responsible for
finding responsive documents without identifying the terms
searched or explaining how the search was conducted in each
component” could not justify summary judgment (internal
quotation marks and citation omitted)).
On appeal, the DEA suggests that there was little more it
could have said about the search of the case files: “[T]here was
no further ‘methodology’ to undertake other than to go through
those files and see if any records therein were responsive.”
DEA Br. 27. The implication of this statement is that the files
consisted of physical documents, each of which the Burlington
Resident Office examined manually to see if it was a subpoena.
The existing declarations do not describe the search in that way,
but if that is so, it would of course resolve the matter, and the
agency can say so in a new declaration filed with the district
court. If the files were not susceptible to a manual search of
every page, however, and particularly if they were electronic,
then more will need to be said about the manner of the search.
2. The DEA’s declarations were also inadequate in another
respect: while they explain how the agency found the two case
files, they do not explain why the only reasonable place to look
for the subpoenas was in case files maintained in the IRFS
system. Although Myrick states that “no other record systems
are reasonably likely to contain” the subpoenas, she does not say
why. First Myrick Declaration 17 (J.A. 166). Yet, an agency
must not only “explain in its affidavit that no other record
system was likely to produce responsive documents”; it must
also “show, with reasonable detail,” that the agency’s approach
“was reasonably calculated to uncover all relevant documents.”
Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir.
1990).

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-14To be sure, the degree of detail required depends on the
case, and “the adequacy of a FOIA search is generally
determined not by the fruits of the search, but by the
appropriateness of the methods used to carry out the search.”
Iturralde v. Comptroller of the Currency, 315 F.3d 311, 315
(D.C. Cir. 2003). Hence, “the failure of an agency to turn up
one specific document in its search does not alone render a
search inadequate.” Id. But in some cases, failure to find a
record that once existed, coupled with a conclusory affidavit
about the methodology of the search, can weaken the agency’s
claim for summary judgment. See Weisberg v. U.S. Dep’t of
Justice, 627 F.2d 365, 370-71 (D.C. Cir. 1980).
In this case, the search failed to turn up four subpoenas that
Aguiar specifically requested. There is no dispute that they once
existed: Aguiar’s declaration states that he saw copies of all
four subpoenas in 2010, during discovery in his criminal trial,
and that he also saw that they had been issued by a DEA agent.
Declaration of Stephen Aguiar 1-2 (May 4, 2015) (J.A. 192-93).
Not only must we accept that declaration as true in this
summary-judgment posture, but a DEA agent testified at
Aguiar’s trial that the subpoenas had been issued. Trial Tr. 68
(Aug. 4, 2010) (J.A. 9). Moreover, there are grounds to believe
that the DEA still had the subpoenas near the time Aguiar made
his FOIA request. At that time, Aguiar’s case was still ongoing:
the Second Circuit did not resolve his direct appeal until
December 2013, several months after the DEA conducted its
search in August 2013.
Under these circumstances, which include “well defined
requests and positive indications of overlooked materials,”
DiBacco, 795 F.3d at 188 (quoting Valencia-Lucena, 180 F.3d
at 326), the DEA’s declarations are too sparse to assure the court
on summary judgment that the search was reasonable. On
remand, the agency will need to file a new declaration
explaining why the record system that it queried to produce the

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-15two files was the only one likely to contain the subpoenas. And
if the two were paper files, it will need to explain why it was
unlikely that there were additional files, particularly electronic
files, that could contain the subpoenas.
***
In sum, we conclude that the existing declarations were
insufficient to explain: (1) why the search within the two case
files that the IRFS record system identified was reasonably
calculated to find the subpoenas, and (2) why the DEA thought
it reasonably likely that the requested subpoenas would only be
found in case files maintained in IRFS. For these reasons,
summary judgment for the agency on Aguiar’s request for the
administrative subpoenas was unwarranted on the current
record.1

1

Aguiar also suggests that the DEA’s search was insufficient
because the agency failed to contact the agent who originally issued
the subpoenas for further leads regarding their location. Had Aguiar
made that suggestion to the agency or to the district court, our analysis
might be different. But Aguiar never did so, either in his
correspondence with the DEA or in his filings in the district court.
Under these circumstances, the agency “is not obliged to look beyond
the four corners of the request for leads.” Kowalczyk v. Dep’t of
Justice, 73 F.3d 386, 389 (D.C. Cir. 1996); cf. Valencia-Lucena v.
U.S. Coast Guard, 180 F.3d 321, 325, 327-28 (D.C. Cir. 1999)
(finding a search inadequate because the agency failed to contact an
employee who was “a likely source for information about what
happened to” a missing document and who was named in the FOIA
request).

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-16III
Because the DEA has not met its summary-judgment
burden on either of the two FOIA requests that are before us on
this appeal, we vacate the judgment and remand for further
proceedings consistent with this opinion.
So ordered.

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