MARINO v. DRUG ENFORCEMENT ADMINISTRATION

Filing 95

MEMORANDUM OPINION to the Order denying Defendant's Renewed Motion for Summary Judgment. Signed by Judge Gladys Kessler on 2/19/14. (CL, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

GRISELLE MARINO,
Plaintiff,
Civil Action No. 06-1255 (GK)

v.

DRUG ENFORCEMENT
ADMINISTATION,
Defendant.

MEMORANDUM OPINION

Plaintiff Griselle Marino
this

action

Administration
Information
documents

the

against

("Plaintiff" or "Marino")

United

States

("DEA" or "the Government")

Act
related

to

a

u.s.c.

5

( '' FOIA") ,

Government

§

brings

Enforcement

Drug

under the Freedom of
552.

Marino

cooperator

who

seeks

testified

against her deceased ex-husband, Carlos Marino, at his trial for
drug conspiracy in 1997.
This matter is before the Court on the DEA's Renewed Motion
for Summary Judgment

[Dkt.

Motion,

Reply,

Motion
herein,

Opposition,
Hearing
and

for

Motion is denied.

of

No.

Upon consideration of the

Sur-reply,

February
the

65].

reasons

5,

2014,
stated

oral
and
below,

argument
the
the

entire

at

the

record

Government's

I.

BACKGROUND
Factual Background1

A.

1.
In

The Criminal Prosecution

1997,

Carlos

Marino

was

convicted

narcotics

of

conspiracy in the Northern District of Florida and sentenced to
365 months in prison.
trial

was

Lopez

a

The Government's primary witness at his

co-conspirator

testified

international

that

drug

he

named
and

importation

Jose

Carlos
and

Everth Lopez
Marino

named Pastor Parafan-Homen.

worked

for

an

ring

known

as

distribution

the "Company," which was run out of Bogota,
Pl.'s Opp'n Ex.

("Lopez").

Columbia by a man
B

(Trial Tr.)

at

16, 20 [Dkt. No. 66-5 at ECF pp. 6-7].
Lopez stated that his job was to transport cocaine in flat~~

bed trailer

trucks

from Texas

paid by Carlos Marino.
ECF pp.
the

6-15].

"banker"

whenever

Id.

to

at 16,

South

Florida,

20-27,

31

[Dkt.

where

he was

No.

66-5 at

Lopez further testified that Carlos Marino was
or

money

"money
was

man"

spent

of

by

the

1

the

organization,

conspiracy

and

whet.her

that
for

Unless otherwise noted, the facts are undisputed and drawn
either
from
the
parties'
briefs,
the
Complaint,
or
the
Government's Statement of Undisputed Material Facts submitted
pursuant to Local Civil Rule 7 (h).
For ease of reference, the
Court's citations to the exhibits appended to Plaintiff's
Opposition include, in brackets, the page numbers supplied by
the Court's Electronic Case Filing ("ECF") system.

-2-

drivers,

vehicles, warehouse space,

from Marino.
pp.

3-4,

and

Id.

18,

at 33,

21-22];

Recommendation

Marino,

36,

39,

or other expenses - it came
191-92

[Dkt.

No.

see also Pl.'s Opp'n Ex.
on

3:97cr84/RV

2255

§

(N.D.

petition

Fla.

Oct.

in

66-5 at ECF

F (Order,
United

States
("Report

2002))

4,

Report
v.
&

Recommendation") at 6 [Dkt. No. 66-9].
The Government relied heavily on Lopez's testimony in its
opening and closing remarks and at
Judge

M.

Casey

"Lopez was

the

Rodgers

later

government's

As Magistrate

sentencing.

observed

on
at

key witness

collateral
trial

review,

and was

the

primary witness who testified about defendant's involvement in a
conspiracy
(Report
evidence
Marino

and

that

moved

Recommendation)

from
had

actually

an

unrelated

been

at

engaged

cocaine."
7

[Dkt.

Pl.'s
No.

Opp' n

F

Although

66-9].

investigation

revealed

in

discussions

separate

Ex.

that

Carlos
with

a

confidential informant named Edwin Rivas about importing cocaine
into the United States through the Miami airport,
never carried out,
Parafan-Homen's

this plan was

and there was little evidence linking it to

group.

See

id.

("CI

Rivas

testified

about

discussions he had with the defendant about cocaine importation,
but the importation plans were never realized."),
At sentencing,

the trial Judge relied on Lopez's testimony

to conclude that Carlos Marino was a "station manager in Miami"
-3-

who "transfer[red]

operations from Mexico and Houston and other

parts of the United States,

including a number of major cities,

east coast and west coast."
Tr.)

at

11:20-12:24

[Dkt.

See Pl.'s ·Opp'n Ex.
No.

66-5

at

ECF pp.

B (Sentencing
29-30].

This

finding provided the basis for the Judge to impose a three-point
sentencing enhancement under the Sentencing Guidelines.

Id.

Lopez later admitted at the 1998 trial of Parafan-Homen in
the Eastern District of New York that he lied multiple times at
Carlos Marino's trial.
purported to be

a

Specifically,

at Marino's trial,

low-level participant

Lopez

recruited to work

for

the Company in late 1995, whereas he later admitted that he had
been involved in the conspiracy since 1988,
with

Parafan-Homen

on

several

occasions,

had met personally
and

had

small meeting of high-level conspirators in Bogota,
1994 to discuss reorganizing the criminal enterprise.
Opp' n Ex.

C at 3623-3627,

3665-66.

a

Columbia in
See Pl.'s

(trial transcript in United

States v. Pastor Parafan-Homen, CR 95-0722)
2.

attended

[Dkt. No. 66-6].

Collateral Proceedings

After his conviction was affirmed on direct appeal in 1999,
Carlos Marino filed a motion to vacate, set aside or correct his
sentence pursuant to 28 U.S. C.
(Joint Appendix)

§

at 271 [ Dkt. No.

2255.

See Pl.'s Opp' n Ex.

A

66-2] .

He argued, inter alia,

that the Government committed misconduct by failing to correct
-4-

Lopez's perjured testimony at his trial.

Id.

at 291-98

[Dkt.

No. 66-3] .

He further asserted that the Government violated its

obligations

under

Brady

suppressing

notes

of

v.

Maryland,

pre-trial

373

U.S.

interviews

83

with

(1963),

Lopez,

by

which

could have been used to impeach Lopez at trial and demonstrate
that his involvement in the conspiracy was more extensive than
he depicted.
Marino

Id.

also

Government

at 277-282,

claimed

would

that

have

284-90

the

shown

[Dkt.

documents

that

he

No.

66-2].

Carlos

suppressed

(Carlos

by
was

Marino)

the
not

involved in any of the operations of the conspiracy outside of
Miami,

and that it was Lopez,

the Parafen-Homen organization.
On

October

Report

and

motion

for

4,

2002,

Recommendation
collateral

not Marino,

Id. at 296-298 [Dkt. No. 66-3].

Magistrate

Judge

recommending

relief

who was a manager of

be

Rodgers

that

denied.

issued

Carlos

While

his

Marino's

acknowledging

that "Lopez's testimony at the Parafan trial, in particular that
detailing

his

historical

'vastly different'
determined that
any

Opp'n Ex.

F

in

the

conspiracy,

was

from that given at the defendant's trial," he

the

responsibility

involvement

"differences
or

involvement

did not
in

(Report and Recommendation)

the

absolve

defendant

conspiracy."

at 53

[Dkt.

No.

of

Pl.'s
66-9].

He further reasoned that "the jury was on notice that Lopez was
not the most credible of witnesses" because there was evidence
-5-

at

trial

"that

Lopez

had

government agents [.]"
falsehoods
relief

in

because

Id.

Lopez's
they

lied

on

at 52.

testimony

either

were

more

than

one

to

He then concluded that the
did

not

"not

warrant

central

assessment of defendant's role in the offense,

collateral

to

the

jury's

or were unknown

to the government at the time of defendant's trial."
3.

occasion

Id. at 51.

The FOIA Request

In May 2004, Carlos Marino, acting pro se, submitted a FOIA
request to the DEA to obtain "a copy of all documents indexed
under No.

3049901 of the

[DEA' s]

Information System (NADDIS) ."
Unit, dated May 4,
NADDIS

numbers

2004

are

Narcotics

[Dkt. No.

multi-digit

numbers

assigns to the subjects of its investigations.
DEA to "retrieve []

investigative reports

its

database

investigative

without

searching

by

Katherine L.

Myrick

65-2] .

is

It

name.

regarding
See

("First Supp.

undisputed

Drug

Letter from Marino to DEA FOIA/PA

("FOIA Request")

unique

and Dangerous

that

a

First

Lopez.

-6-

the

of

Supplemental

Marino

DEA

They permit the

subject

3049901 was the NADDIS number assigned to Lopez,
his request effectively sought the DEA' s

that

and information"

Myrick Decl.")
Carlos

5-l, Ex. A].

!

6

from

interest
Decl.
[Dkt.

suspected

of
No.
that

and therefore,

investigative file on

The DEA categorically denied Carlos Marino's request.
response
agency

took

the

states

existence

of

form

that

of

responsive

"Glomar

response,"

"can

it

a

neither

confirm

records

on

the

in

nor

grounds

Its

which
deny"

that

to

an
the

do

so

would reveal information exempt from disclosure under FOIA. 2
The

DEA

responsive

reasoned

documents

that

would

disclosing
invade

the

even

the

existence

privacy interest

of

of the

individual assigned to NADDIS number 304 9901 by revealing that
he

or

she

agency

had been

therefore

the

subject

informed

of

Carlos

a

DEA

Marino

investigation.

The

that

not

it

would

process his request unless he provided either proof of death of
the individual assigned to NADDIS number 3049901, or an original
notarized privacy waiver.

See Undated Letter from DEA to Marino

[ Dkt . No. 5-1, Ex. D] .
On August
appeal

with

Information
interest

9,

2004,

Carlos

the

Department

and

Privacy

would

sought because,

be

invaded

of

Marino

Justice's

("OIP"),
by

filed

arguing

disclosing

an

administrative

("DOJ"'s)
that
the

Office

"no

of

privacy

information"

as he pointed out in his original request,

he

that

information had already been put into the public domain at his
2

The term "Glomar response" is derived from a case in which a
requester sought records relating to an underwater sea craft
called the "Glomar Explorer."
Nation Magazine, Wash. Bureau v.
U.S. Customs Serv., 71 F.3d 885, 888 n.2
(D.C. Cir. 1995)
(citing Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976)).
-7-

trial and the trial of Parafan-Homen.
to OIP,

dated Aug.

January 18,

2005,

9,

2004,

at 2

Letter from Carlos Marino

[Dkt.

No.

5-1,

Ex.

E].

On

the OIP affirmed the denial of the request,

again stating that to confirm or deny the existence of records
"could

reasonably

be

expected

to

constitute

an

invasion of personal privacy" under Exemption 7(C).

unwarranted
Letter from

OIP to Carlos Marino, dated Jan. 18, 2005 [Dkt. No. 5-1, Ex. G] . 3
B.

Procedural Background

On July 12,
judicial
October

review
5,

Judgment.
Urbina,

2006,
of

2 00 6,
[Dkt.

the

Summary

No.

DEA's

DEA

after

Carlos

On

Court

granted

decision.

filed

5].

District

Judgment

opposition.

the

the

summarily

case,

Carlos Marino filed this action seeking

its

March

Judge

the

first
16,

for

On

for

Summary
Ricardo

assigned
first

failed

Marino

1].

Judge

2007,

previously

then moved

No.

Motion

Government's

Carlos

Marino

[Dkt.

to

this

Motion
to

for

file

an

reconsideration

on

April 17, 2007 [Dkt. No. 12] and for relief from the judgment on
November

30,

2009

motions on August 5,
237
3

(D.D.C.

2010)

[Dkt.

No.

2010.
("Marino

16].

Judge

See Marino v.
I").

Judge

Urbina
DEA,

denied

729 F.

Urbina

both

Supp.

reasoned

2d

that

The OIP also determined that the requested records were exempt
from disclosure "pursuant to 5 U.S. C.
§
552 (b) ( 2) ,
which
concerns matters that are related solely to internal agency
practices."
[Dkt. No. 5-1, Ex. G].
However, the DEA has not
pursued that exemption in this case.
-8-

granting Carlos Marino relief from the judgment would be futile
because he lacked any meritorious counterargument to the DEA' s
Glomar response.
On appeal,
F.3d 1076

Id. at 243-245.
the D.C.

Circuit reversed.

(D.C.

Cir.

2012)

("Marino II").

that

the

only

issue

emphasized
propriety

of

the

agency's

under

Glomar

Marino v.

DEA,

685

The Court of Appeals

consideration

response,

which

was

the

is

"an

exception to the general rule that agencies must acknowledge the
existence

of

information

provide specific,
that

responsive

to

a

FOIA

request

and

non-conclusory justifications for withholding

information."

Id.

at

1078

n.1

(citation

and

internal

quotation marks omitted).
The

Court

Appeals

of

held

that

Marino's

Carlos

identification of public records

linking NADDIS number 3049901

to

basis

Lopez

Glomar

presented
response

a

plausible

because

"[u]nder

to

overcome

FOIA' s

exception, an agency may not rely on an

the

'public

DEA's

domain'

'otherwise valid [FOIA]

exemption to justify withholding information that is already in
the

'public

domain.'"

Id.

at

1080

(citing

Students

Against

Genocide v. Dep't of State, 257 F.3d 828, 836 (D.C. Cir. 2001)).
The panel emphasized· that,
DEA

showed

legitimate

"[e]ven if later in litigation the

grounds

to

withhold

every

document

in

NADDIS file No. 3049901, Marino has raised a meritorious defense
-9-

that

the

file's

DEA' s

justification
has

existence

disclosure."

for

even

undermined

been

refusing

to

by

confirm the
public

prior

Id. at 1082.

On remand and reassignment of the case to this
Court granted relief from the prior judgment,

Judge,

the

denied the DEA' s

Motion for Summary Judgment,

directed the DEA to file an Answer

to

a

the

Complaint,

and

set

schedule

for

limited

25,

2013,

discovery.

[Dkt. No. 49].
The

DEA' s

Answer,

filed

on

March

[Dkt.

assert Glomar as its sole substantive defense.
However,

on May 7,

2013,

the Court held a

continued
No.

to

53].

status conference at

which the Government informed the Court for the first time that
it

was

not

whether

it

would

continue

to

pursue

this

The parties also informed the Court at this time that

defense.
Carlos

certain

Marino

terminal
Government

had

recently

cancer.
to

The

decide

on

been

Court
its

released
then

Glomar

from

set

prison

deadlines

response

and

due
for

for

to
the

summary

judgment briefing.
Thereafter,

the

Government

Glomar response before
it

would "no

[Dkt.

No.

finally deciding,

longer assert

62].

The

continued to

DEA

the

now

Glomar
concedes

equivocate

on May 29,

response
that

its

on

2013,

in this

its
that

case."

assignment

of

NADDIS number 3049901 to Lopez is a matter of public record, but
-10-

has

failed

to

ever

explain

why

it

took

seven

years

and

a

successful appeal to the Court of Appeals for Marino to prevail
See Def.'s Mot. at 7. 4

on this issue.
After

withdrawing

its

Glomar

response,

the

Government

sought an extension of time to file its summary judgment motion,
which the Court initially granted but later modified at Marino's
request in light of his deteriorating health.
that

the

Government

Judgment on May 31,
Glomar

response,

but

filed
2013,

its

Renewed

The result was

Motion

for

Summary

just two days after it withdrew its

did not

provide

the

resembling a conventional Vaughn index.
14,

2013,

Marino filed his Opposition.

24,

2013,

the Government filed its Reply

Court with

[Dkt. No.
[ Dkt.
[Dkt.

No.

anything

65]. On June
66] .

No.

On June

68],

and on

June 26, 2013, Marino filed a Sur-reply with permission from the
Court.
On

[ Dkt. No 7 0] .
July

16,

2013,

after

summary

judgment

briefing

complete but before the Court had ruled on the Motion,
Marino

passed away.

Carlos

Marino

4

[Dkt.

See
No.

Statement
72].

On

Noting

December

Death of
5,

2013,

was

Carlos

Plaintiff
the

Court

Although the DEA acknowledges only one public document linking
Lopez to his NADDIS number, there are at least three such
documents on this Court's public docket.
See Pl.'s Opp'n, Ex. A
at 256, 261, 262 (DEA-6 Forms dated Aug. 18, 1997 and Sept. 10,
1997) [Dkt. No. 66-2]; Pl.'s Opp'n Ex. L at 4 (DEA-6 Form dated
Aug. 16, 1997) [Dkt. No. 66-15].
-11-

granted Griselle Marino's Motion
[ Dkt.

Nos.

argument

8 9,
on

Government

90] .

the

substitute on his

On February 5,

DEA's

filed

to

a

Motion.

Notice

of

2014,

On

the Court held oral

February

Authority,

behalf.

10,

citing

2014,

an

the

appellate

brief Carlos Marino had filed in 1998 in his criminal case that
the Government
case.
II.

purportedly discussed at

oral

argument

in

this

"pierce

the

veil

[Dkt. No. 93].
LEGAL STANDARD UNDER FOIA

The

purpose

FOIA

of

is

to

of

administrative secrecy and to open agency action to the light of
public scrutiny."
Cir.

2007)

Morley v.

C.I.A.,

508 F.3d 1108,

(quoting Dep't of Air Force v.

361 (1976)).

Rose,

1114

(D.C.

425 U.S.

352,

FOIA "requires agencies to comply with requests to

make their records available to the public, unless the requested
records

fit

within

one

material."

Oglesby v.

Cir.

(citing

1996)

5

or more

of

Dep't of Army,
U.S.C.

enforcement

expected
privacy."

to

records

constitute

5 U.S.C.

§

when
an

(b)).

of

exempt

1176

(D.C.

Exemption

7 (C),

permits an agency to withhold

disclosure

unwarranted

552 (b) (7) (C).

-12-

categories

79 F.3d 1172,

552 (a),

§

which is at issue in this case,
law

nine

"could
invasion

reasonably
of

be

personal

FOIA' s "limited exemptions do not obscure the basic policy
that disclosure,
Act."

ACLU v.

2011)
26,

not secrecy,
U.S.

is the dominant objective of the

Dep't of Justice,

655 F.3d 1,

(citing Nat'l Ass'n of Home Builders v.
32

(D.C.

information,.

Cir.
the

2002)).
agency

"If

must

document

still

Norton,

release

portions."

presumption

in

statutory exemptions,
construed."

ACLU,

favor

of

F.3d

at

5

§

552(b)).

FOIA mandates a
and

disclosure,

which are exclusive,
655

nondisclosable

the

courts must bear in mind that

exempt

reasonably

Oglesby, 79 F.3d at 1176 (citing 5 U.S.C.

strong

of

'any

portion'

deletion

309 F.3d

contains

segregable

"At all times,

after

a

5 (D.C. Cir.

are

that

the

to be narrowly

(internal

citations

and

punctuation marks omitted).
A district court reviews an agency's decision to withhold
responsive

documents

de

novo.

5 U.S.C.

§

The

552 (a) (4) (B).

agency bears the burden of demonstrating that it has conducted
an

adequate

responsive
Dep't

of

search,

and

documents
the

Interior,

(citing 5 U.S.C.
"FOIA

is

§

cases

that

its

Petroleum

justified.
976

F.2d

decision

1429,

1433

to

withhold

Info.
(D.C.

any

Corp.
Cir.

v.

1992)

552 (a) (4) (B)).
are

typically

motions

for

summary

judgment."

Inc. v.

Bd.

of Governors of Fed.
-13-

and

appropriately

decided

on

Gold Anti -Trust Action Comm.,
Reserve Sys.,

762 F.

Supp.

2d

123,

130

Patrol,

(D.D.C.
623 F.

2011)
Supp.

(quoting Defenders of Wildlife v.
2d 83,

87

(D. D.C.

2009)).

Border

The Court may

grant summary judgment on the basis of information provided in
agency affidavits
"describe

(1)

or declarations,

the

documents

but

and

only if
the

such materials

justifications

nondisclosure with reasonably specific detail";

(2)

for

"demonstrate

that the information withheld logically falls within the claimed
exemption";

and

( 3)

show

withholding documents
evidence

in

the

Military Audit

that

the

agency's

explanations

for

"are not controverted by either contrary

record nor by evidence of agency bad faith."
Project v.

Casey,

656 F.2d 724,

738

(D.C.

Cir.

1981).
As in any motion for summary judgment, the Court "must view
the evidence in the light most favorable to the nonmoving party,
draw all reasonable inferences in his [or her]
making

credibility

Montgomery v. Chao,

determinations
546 F.3d 703,

or
706

favor, and eschew

weighing

the

evidence."

(D.C. Cir. 2008).

If the

Court concludes that there are genuine issues of material fact
as to the sufficiency of the agency's response, summary judgment
must be denied.

See Fed. R. Civ. P. 56(a).

III. ANALYSIS

The DEA advances two principal arguments as to why it is
entitled to summary judgment.

First, it construes Marino's FOIA
-14-

request narrowly and purports to have fully responded to it by
producing a single document.
extent Marino's
document
under

request

produced,

FOIA

it maintains that, to the

seeks documents

such

Exemption

Second,

documents

7(C).

other than the

are

exempt

Marino

from

refutes

single

disclosure

both

of

these

arguments and asks the Court to enter summary judgment in her
favor pursuant to Fed. R. Civ. P. 56(f) (l).
A.

The Scope of the Request

Determination

of

the

issue to be decided.
"[a] l though a
sought,

5

construe

FOIA

§

of

the

request

is

the

first

Our Court of Appeals has emphasized that

requester must

U.S.C.
a

scope

'reasonably describe'

552 (a) (3),

request

an

agency

liberally."

also

Nation

Bureau v. U.S. Customs Serv., 71 F.3d 885,

890

the records

has

a

duty

Magazine,

to

Wash.

(D.C. Cir. 1995)

(citations omitted).
In
that

addition,

" [ e] ven

if

the
the

DOJ's

own

internal

request

'is

not

a

guidance

model

of

reiterates

clarity,'

an

agency should carefully consider the nature of each request and
give

a

content."
of

reasonable

to

its

terms

and

overall

United States Dep't of Justice, Guide to the Freedom

Information

available

interpretation

at

Act,

Procedural

Requirements,

at

25

http://www.justice.gov/oip/foia-guide.html

visited February 11, 2014).
-15-

(2013)'
(last

Marino's request stated, in relevant part:
Specifically,
I
request a copy of all documents
indexed under No. 3049901 of [NADDIS].
I am only
requesting
information
that
is
already
public
information or was required to be made public in
public trials conducted on December 7-10, 1997, in the
Northern District of Florida styled as United States
v. Marino
and in June, 1998, in the Eastern
District of New York styled as United Stated [sic] v.
Pastor Parafan-Homen.
If any documents indexed
under NADDIS No.
3049901 or portions thereof are
withheld or redacted because of statutory exemptions,
please forward to me the segregable portion of the
document[.]
FOIA Request [Dkt. No. 5-1, Ex. A]

(emphasis added).

The Government focuses on the second sentence of the quoted
language

and

argues

that

categories of documents:

it

( 1)

limits

Marino's

request

to

two

documents indexed to NADDIS number

3049901 that were "made public" at the trials of Carlos Marino
and

Parafan-Homen,

and

(2)

documents

indexed to

NADDIS

number

3049901 that were "required to be made public" at such trials,
but were not.

Def.'s Mot. at 9-12.

According to the Government,
proper

subject

disguised as

a

of

a

FOIA

request

for

request

the second category is not a
because

documents:

to

"it

is

a

answer it,

need to be totally familiar with the facts

question
one would

of the trials,

the

nature of the documents that DEA has concerning Lopez, and .
the

government's

Therefore,

the

disclosure
Government

obligations[.]"

concludes
-16-

that

the

Id.

at

request

12.
only

properly seeks documents actually introduced at the two trials
because a

"fundamental axiom of FOIA law is that agencies are

not required to answer questions posed as FOIA requests."
at 11-12

( citing Zeman s k y v .

1985); DiViaio v.

Kelly,

Amnesty Int'l v.

CIA,

EPA,

7 67 F . 2d

571 F.2d 538,

No.

07-5435,

569,

542-43

57 4

Id.

( 9th Ci r .

(lOth Cir. 1978);

2008 WL 2519908,

at

*12-13

(S.D.N.Y. June 19, 2008)).
Marino rejects the DEA's narrow reading and argues that the
request

seeks

"all

documents

indexed

under

[NADDIS]

3049901," whether introduced at the trials or not.
at 24-26 (emphasis added).

number

Pl.'s Opp' n

Marino also argues that, after seven

years of litigation in which the DEA has never once questioned
the meaning of his request,

the DEA has forfeited any objection

that it is ambiguous or improper.
For the following reasons,
Marino's

request

Id. at 16-23.
the Court concludes that Carlos

"reasonably

is

susceptible"

to

the

interpretation urged by Marino, LaCedra v. Exec. Office for U.S.
Att'ys,
need

317

not

F.3d 345,
reach

348

(D.C.

Marino's

Cir.

2003),

alternative

and therefore,

contention

that

it
the

Government has forfeited this argument.
As a preliminary matter,

the first sentence of the request

"[s] pecifically" asked for "all documents" indexed under NADDIS
#3049901.

FOIA Request

[ Dkt. No. 5-l,
-17-

Ex. A]

(emphasis added) .

Likewise,

the

third sentence of the

DEA withheld "any documents
it

request

indexed under NADDIS No.

send Marino any segregable portion of

(emphasis added) .
with

Marino's

This

expansive

interpretation

reading urged by the

asked that

and

Id.

fully consistent

inconsistent
As

3049901,"

such documents.

language is

Government.

if the

with

the

narrow

our Court of Appeals has

observed:
The drafter of a FOIA request might reasonably seek
all of a certain set of documents while nonetheless
evincing a heightened interest in a specific subset
thereof.
We think it improbable,
however,
that a
person who wanted only the subset would draft a
request that .
. first asks for the full set.
LaCedra, 317 F.3d at 348.
The

broad

request
second

can

because

purposes.
the

be

language

in

reconciled
the

two

the

with

first
the

sentence

limiting

sentences

appear

of

Marino's

language

to

have

in

the

different

Whereas the first defines the scope of the request,

second explains

not exempt.

why

In fact,

(in Marino's

view)

such documents

are

the second sentence closely tracks the two

theories Carlos Marino repeatedly presented to this Court as to
why Exemption 7 (C)

does

file:
have

not

apply to

the

documents

in Lopez's

first,

that

the events underlying the requested records

already

been

publicly

Government's

obligation to

disclosed;

disclose
-18-

and

Lopez's

second,
false

that

the

testimony at

his

criminal

trial

requested records

established

the

interest

in

the

6

reading of Marino's

structure

public

sufficient to counterbalance Lopez's privacy

interest in withholding them.
This

a

of

arguments

administrative appeal,

request
presented

is

also

by

consistent with

Marino

during

his

in which he again described his request

broadly at the outset as one "for records indexed under NADDIS
#3049~01[.]"

Letter from Marino to OIP dated Aug. 9, 2004 [Dkt.

No.

E].

5-1,

Ex.

He then challenged the DEA' s

denial of his

request by quoting from the DOJ' s own FOIA Reference Guide for
the proposition that:
information about a living person can be released
without
that
person's
consent
'when
no
privacy
interest
would
be
invaded
by
disclosing
the
information, when the information is already public or
required to be made public or where there is such a
strong public interest in the disclosure that it
overrides the individuals' privacy interest.'
Id.

(emphasis added)

(citing U.S.

Information Act Reference Guide,

Dep't of Justice,

Freedom of

at 4 (November 2003)).

Marino

explained that his original request specifically set forth these
bases for release of the requested documents.
Finally,

the

Government

second sentence of Marino's

6

itself

appears

Id.
to

have

read

the

request primarily as an effort to

The second theory is explained in more detail infra at III.B.2.
-19-

overcome Exemption 7(C)

rather than a genuine limitation on the

scope of the request.

For example,

Summary Judgment,

the

in its original Motion for

DEA described the

attempt "to end-run the 7(C)

publicly

Circuit,

disclose

an

sentence

Def.'s

[Original] Mot.

exemption."

Later,

for Summary Judgment at 9 [Dkt. No. 5].
brief to the D.C.

second

as

an

in its appellate

the DEA argued that even if it did

individual's

NADDIS

number,

that

fact

"would still not require DEA to reveal all of the information in
such

an

fact,

individual's

understood Marino

Opp'n Ex.
added)

Marino's
scope

answer
view,
By

I

(DEA's

to

App.

indicating

be

Br.

seeking

to

D.C.

that

all

the

such

Cir.)

at

agency,

files.
11-12

in

Pl.'s

(emphasis

[Dkt. No. 66-12].

For

the

files [, ] "

a
the

all

foregoing

request is
of

the

but

requested

and

the

reasons,

the

second

reasonably read as neither a

request

question,

contrast,

request,

the

nor

as

an

documents

first

clearly

a

request

explanation
are

sentence
and

for

not

does

define

specifically

indexed to NADDIS number 3049901.

-20-

Government

why,

exempt

in

from
the

seeks

Accordingly,

of

limitation on

the

of

sentence

Marino's

disclosure.

scope
all

to

of

the

documents

the Court shall

construe Marino's

request as one for all documents indexed to

NADDIS number 3049901. 7
B.

The Government Is Not Entitled to Summary Judgment
Under Exemption 7(C)

The Government also argues that even if Marino's request is
construed
judgment

broadly,
because

withholding

of

the

agency

Exemption

the

is

7 (C)

requested

still

entitled

justifies

documents.

its

To

to

categorical

prevail

argument, the DEA must make two independent showings.

summary

on

this

First, it

must persuade the Court that it has made a "good faith effort to
conduct a search for the requested records,
can

be

reasonably

requested."

expected

to

Oglesby, 920 F.2d at 68.

using methods which

produce

the

information

Second, it must show that

the withheld documents fall "within a FOIA statutory exemption,"
here,

Exemption

7(C).

Leadership

Conf.

on

Civil

Rights

v.

Gonzalez, 404 F. Supp. 2d 246, 252 (D.D.C. 2005).

7

The DEA also argues that a "requester who fails to submit a
proper FOIA request has
not exhausted his
administrative
remedies
and an agency is under no obligation to
respond [.]"
Reply at 7 (citing Lewis v. Dep' t of Justice, 7 33
F. Supp. 2d 97, 107 (D.D.C. 2010)).
However, the DEA did
respond to Marino's request, and never once suggested it did not
understand the meaning of the request.
Nor has it explained how
its seven-year long Glomar stance would have differed under the
interpretation Marino advances.
Therefore,
the Court is
satisfied that Marino properly exhausted his administrative
remedies.
-21-

1.

The DEA Has Not Established that It Conducted an
Adequate Search

"To merit summary judgment on the adequacy of a search, an
agency must demonstrate beyond material
was

reasonably

Students

calculated to

Against

Genocide,

F.3d

at

uncover
257

890).

doubt that

all

F.3d

relevant

at

838

its

documents."

(citing

Magazine,

71

search is

Nation

'determined not by the fruits of the search,

"In

general,

the appropriateness of [its] methods.'"
575,

579

(D.C. Cir. 2013)

the

adequacy

Hodge v.

(citation omitted).

search

of

a

but by

FBI, 703 F.3d

"The agency must

make a good faith effort to conduct a search for the requested
records,

using

methods

which

can

produce the information requested."

be

reasonably

expected

to

Students Against Genocide,

257 F.3d at 838.
The
States

DEA has
Attorney

submitted declarations
Fred

principally responsible
Chief,

from Assistant

E.

Haynes

for

defending this

Katherine L. Myrick

("Haynes"),
case,

United

attorney

the

and its

FOIA

("Myrick"), describing the extent of

the agency's search.
Haynes attests to obtaining the DOJ's retired case files in
the

criminal

reviewing

them

"open

the

to

prosecutions
for

all

public"

of

Marino

"documents
and

relate
-22-

of
to

and

Parafan-Homen

significance"
Lopez

or

that

NADDIS

and
are

number

3049901.

See

Haynes

Decl.

Pl.'s First Set of Reqs.

10

CJf

[ Dkt.

for Prod.

No.

65-1] ;

of Docs. Nos.

Response

1,

3,

4.

to

This

search was undertaken during the discovery process in this case,
which was focused solely on publicly-disclosed documents linking
Lopez with NADDIS number 3049901.
records
was

It did not extend to all DEA

indexed to NADDIS number

not

"reasonably

304 9901

calculated

to

and,

uncover

Myrick's declaration also falls short.
DEA' s

found

in

(IRFS)."

responsive

She informs us that

law enforcement records are "reasonably likely to be
DEA' s

Investigative

First Supp.

Reporting

Myrick Decl.

search IRFS for any records because,
not

all"

it

Students Against Genocide, 257 F.3d at 838. 8

documents.

the

consequently,

indexed,

as

plaintiff's

and

6.

CJ[

Filing

However,

she did not

as she explained,

FOIA request

sought,

System

by a

IRFS "is
court's

case name, by a court's case file number, by information that is
public

information,

or by

information that

made public in public trials."

Id.

CJ[

7.

was

required to be

This explanation is

totally unconvincing in light of the Court's ruling that Marino
seeks

all

documents

indexed to

NADDIS

8

number

3049901,

and not

At oral argument, counsel for the Government stated for the
first time that he had searched all DEA records for documents
indexed to NADDIS number 304 9901, but he offered virtually no
detail as to the methods he employed or the results of his
search.
See Tr. at 7:16.
-23-

simply those that were made public or required to be made public
at the two trials.

Accordingly,

the

DEA shall be directed to

search IRFS for all such records.

2.

The

Marino Has Demonstrated a
Significant Public
Interest in the Documents Under Exemption 7(C)

DEA

also

contends

that

it

should not

be

required

to

identify responsive records because the records Marino seeks are
presumptively privileged under Exemption 7(C).
As
records

already noted,
for

constitute

which
an

disclosure

unwarranted

U.S.C. § 552 (b) (7) (C).
Government

has

Exemption 7 (C)

Exemption

shown

7 (C)

"could

invasion

protects

law enforcement

reasonably be
of

personal

expected to

privacy."

5

The Supreme Court has held that once the
that

the

are present,

privacy

concerns

addressed

the burden shifts to the

by

requester

to demonstrate that the "public interest sought to be advanced
is a significant one,

an interest more specific than having the

information for its own sake."
v.

Favish,

where,
that

541

as here,

U.S.

in

172

(2004).

To

&

Records Admin.

satisfy this

burden

"the public interest being asserted is to show

responsible

improperly

157,

Nat' 1 Archives

the

officials

acted

performance

of

negligently
their

duties,

or

otherwise
the

requester must produce evidence that would warrant a belief by a

-24-

reasonable person that the alleged Government impropriety might
have occurred."

Id. at 174.

If the requestor meets this burden, the court must,
final

analysis,

against the
to

"balance

[privacy]

protect'"

in

the

public

interest

in

in the

disclosure

interest Congress intended the Exemption

order

to

determine

applies.

ACLU,

655 F.3d at 6

Reporters

Comm.

for

whether

(citing U.S.

Freedom of

the

Press,

the

Exemption

Dep't of Justice v.
489

U.S.

749,

776

(1989)).
The DEA contends that it

is

entitled to summary judgment

without any balancing analysis because Marino has not pointed to
facts

that

would warrant

a

reasonable

belief

that

Government

misconduct "might have occurred." 9

The Court disagrees.

has

that

presented evidence

indicating

the

Government

Marino
"might"

have been negligent in failing to know that its key witness was
lying to the jury and seriously understating his involvement in
the Parafan-Homen conspiracy.

9

At oral argument, the Government misstated the standard
governing Marino's evidentiary burden.
While the Government
agreed that Favish is the controlling case, it contended Marino
was required to present "compelling evidence" of Government
misconduct to trigger a balancing under Exemption 7(C).
Tr. at
20:3-5.
The "compelling evidence" standard does not appear
anywhere in the Favish decision and appears only in D.C. Circuit
case law significantly predating Favish.
-25-

First,

between

August

and

November

1997,

Lopez

gave

series of interviews to DEA agents in which he told them,
alia,

a

inter

that he had met personally with Parafan-Homen and other

high level participants in Columbia on more than one occasion.
See DEA Notes dated October 27, 1997 [Dkt. No. 66-2 at 178-185].
The Government also
of

the

knew,

Parafan-Homen

conspirators

had

through its years-long investigation

organization,

attempted

to

that

meet

several

with

other

co-

Parafan-Homen

Columbia but were never allowed to physically see him.

in

Pl.'s

Opp'n Ex. D (Gov't's App. Br. in United States v. Parafan-Homen)
at 12

[Dkt.

No.

face-to-face
occasion
part

with

while

of

66-7]. 10
the

others

The fact that Lopez was able to meet
conspiracy's

were

Parafan-Homen's

Government

officials

conspiracy

was

more

to

not

inner

leader

reasonably
circle

suspect

extensive

his

than

he

and

on

more

than

one

suggests

Lopez

was

should

have

led

in

the

involvement
depicted

at

Ma~ino's

under

Brady v.

trial.
Second,
Maryland,

10

despite

373 U.S.

83

its

discovery

(1963),

obligations

the Government did not disclose

By the time Marino and Lopez were arrested in August 1997, the
DEA had been investigating the Parafan-Homen conspiracy for at
least four years and several of its key members had already been
arrested and extradited to the United States, including ParafanHomen himself.
See Pl.'s Opp'n Ex. D at 8 (Gov't's App. Br. in
United States v. Parafan-Homen) [Dkt. No. 66-7].
-26-

the notes from its interviews with Lopez to Carlos Marino until
he

filed

Resp.

his

§

2255

Motion.

See

to Marino's § 2255 Pet.)

8-9] .

Instead,

Pl.'s

at 7-8

Opp' n

[Dkt. No.

Ex.

E

(Gov' t' s

66-8 at ECF pp.

the prosecutor inaccurately stated at his trial

that the DEA agents had not taken notes during their interviews
with Lopez.

See Pl.'s Opp' n Ex.

A

(Joint Appendix)

at 114-15,

223 [Dkt. No. 66-2].
Third,

Marino

associated

with

has

the

submitted

Parafan-Homen

a

list

of

conspiracy

NADDIS

numbers

indicating

that

Carlos Marino was the last of fifty-eight investigative subjects
to enter the
Persons

DEA' s

database.

Associated

with

the

See Pl.'s Opp' n,
Company

in

Ex.

Numerical

Which They Were Entered into the NADDIS Databanks)
4

at

124].

database

until

Government
When he

was

did

4210827.
more

In

than

fact,
Lopez's
not

By contrast,
million

long before

of

in
his

enter the

his

he

did

August

not

existence

database,

numbers

lower

list,

arrest.

[Dkt. No.
the

that

66-

DEA' s

indicating

until

in

the

point.

his NADDIS number was

than

suggests
These

(List of

Sequence

enter

1997,

Lopez's NADDIS number,

twenty-second entry on the
radar

appears

arrest

aware

finally

one

it

A

3049901,

which is

Marino's

and

he was

on the

circumstances might

the
DEA' s
have

alerted prosecutors that Lopez's role was more extensive than he

-27-

represented,

and

prompted

them

to

cross-check

his

statements

against the accounts of other cooperators. 11
Thus,

although

Parafan-Homen

the

Government

organization

for

had been

years,

and

investigating

although

the

DEA agents

were in possession of information suggesting Lopez's involvement
was more extensive than he led them to believe,

the Government

produced only a single Form DEA-6 to Marino prior to trial, did
not alert Marino to many of the inconsistencies between Lopez's
trial

testimony

and

his

debriefing

and

statements,

relied

heavily on Lopez's testimony to argue that Marino should receive
a

sentencing

role

in

the

transcript)

enhancement
enterprise.

at

circumstances

6-10

[Dkt.

based

on

See

Pl.'s

No.

his

purportedly

Opp' n,

Ex.

66-5 at ECF nos.

B

managerial
(sentencing
These

24-28].

satisfy Marino's evidentiary burden to show that

the Government "might" have fallen below an acceptable standard
of care to ensure the integrity of the proceedings.
Finally, the Court rejects the Government's suggestion that
Lopez's

perjury

was

unimportant

because

unrelated to the evidence against Mr.
Lopez's

testimony was

Marino."

absolutely critical

11

it

to

any

totally

"was
Tr.

at

7:4-5.

finding

that

At least two other co-conspirators, William Quintero and
Andres Meneses, were cooperating with the Government and had
been debriefed multiple times before Marino's trial in December
1997.
Id. at 9, 13.
There is no indication that Lopez's
account was corroborated by their accounts.
-28-

Carlos Marino worked for the Parafan-Homen organization and his
believability was a central component of the Government's case.
Even

if

his

activities

falsehoods

than

related

Marino's,

his

more

to

readiness

seriously impacted his credibility.

his
to

own

lie

criminal

under

The Government's failure to

investigate and disclose evidence indicating that he was
potentially deprived the

jury of a

his trustworthiness as a witness.
Moreover,
proceeding,
Government's

credibility

the

focus

full

opportunity to assess

unlike

case

is

conduct prejudiced Marino,

would want to know about it.

lying

See Tr. at 6:12-13.

aside,

in this

oath

in

not

Marino's

§

2255

solely whether

the

but whether the public

It serves the public interest in

fair and carefully investigated criminal trials to know that the
Government built its case on an unreliable witness and ignored
red flags that he was underplaying his role in the conspiracy and potentially exaggerating Marino's - in order to win leniency
from the Court and the Government.

See ACLU,

("matters of substantive law enforcement
subject of public concern")
In

sum,

655

F. 31d at

14

are properly the

(citation omitted).

even if the Government

did not

definitively

that Lopez was perjuring himself at Marino's trial,

know

its failure

to investigate and learn all of the facts about its key witness,
and

to

disclose

all

exculpatory
-29-

evidence

to

Carlos

Marino,

reasonably
otherwise

suggest

that

improperly

it

during

"might"

have

Marino's

acted

negligently

prosecution.

This

or
low

threshold of proof is all that is required, at this juncture, to
survive summary judgment.
3.

The DEA Does Not Identify Any Basis for
Categorical Withholding

Third and finally,
made

an

Favish, 541 U.S. at 174. 12

evidentiary

the DEA argues that even if Marino has

showing

sufficient

to

trigger

Exemption

7(C)'s balancing test under other circumstances, no balancing is
required because the documents in Lopez'

file are categorically

exempt.
Our Circuit has acknowledged that FOIA does not necessarily
require a court to "evaluate the revelatory characteristics of
every individual document in each case [.]"
Justice,

12

393 F.3d 1345, 1349

(D.C. Cir.

Lopez v.

2005).

Dep' t

Instead,

of

"rules

The Government cites Martin v. Dep't of Justice, 488 F.3d 446
(D.C. Cir. 2007) for the proposition that Marino is collaterally
estopped from arguing that the Government committed misconduct
in his criminal case.
In Martin, our Court of Appeals held that
a
FOIA requester who,
in an earlier §
2255 proceeding,
unsuccessfully argued that the Government committed misconduct
at his trial, was collaterally estopped from making the same
argument in a FOIA case.
However, in Martin, the Magistrate
Judge who denied relief under § 2255 first reviewed, in camera,
the same documents the requester later sought in his FOIA case.
In this case, nobody (other than the Government) has reviewed
the
requested documents to determine whether they reveal
Government misconduct.
Therefore, unlike in Martin, the factual
matters presented by this FOIA case are different from those
underlying Carlos Marino's § 2255 proceeding.
-30-

exempting

certain categories

of

records

from disclosure,"

appropriate "when the range of circumstances included in
category

'characteristically

supports

an

inference'

are
[the]

that

the

statutory requirements for exemption are satisfied" so long as a
request falls within the category.
893

(citing

(1993)).
that,

United

v.

At the same time,

"[b]ecause

Exemption 7 (C)
rules

States

of

Landano,

the

considerations

type

based

of

into,

upon

individual

matter,

DEA

it

has
is

has

conducted an

165,

involved

are

not

come

appropriate
not,

as

adequate

generally

close
in

176-80

in

search

for

type

the

per se

of
the

or

document
type

of

Stern v.

disfavored."

(citation omitted).

to

this

discussed

absence of such a search,

the

involved,

FBI, 737 F.2d 84, 91 (D.C. Cir. 1984)

withholding

U.S.

balance defy rigid compartmentalization,

inquired

The

508

71 F.3d at

the Court of Appeals has cautioned

myriad

nondisclosure

requested,
activity

the

Nation Magazine,

showing

As

case.

supra,

that
a

categorical
preliminary

demonstrated that

responsive

records.

it

In the

the Court is certainly not about to

take it on faith that all responsive records, in their entirety,
implicate

Lopez's

privacy

interests,

especially

given

that

Lopez's identification with a DEA investigation is now a matter
of public record.
1276,

1282 n.4

See Davis v. U.S. Dep't of Justice,

(D.C.

Cir.

1992)

("If

-31-

968 F.2d

the only basis for

nondisclosure

is

an

individual's

interest

in

remaining

anonymous,

and an excerpt revealing his identity is disclosed,

there

no

may

longer

be

any

justification

for

continuing

to

withhold [the requested record].").
Even if the DEA had conducted an adequate search, the DEA's
categorical

withholding

exist

do

that

not

is

inappropriate

"characteristically

because

support"

circumstances
the

inference

that Exemption 7(C)'s statutory requirements are satisfied.
First,

to

the

extent

the

records

detail

Lopez'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. 13
Justice, 139 F.3d 944,
individual

See, e.g., Kimberlin v.

949 (D.C. Cir. 1998)

"undoubtedly"

diminished

where

Dep't of

(privacy interest of
"the

public

already

knows who he is, what he was accused of, and that he received a
relatively mild sanction") .

Naturally,

13

it is difficult for the

In addition to testifying against Carlos Marino and ParafanHomen, Lopez testified at the separate trials of Gustavo Pedraza
and Conrado Luis Lopez in the Northern District of Florida in
1999.
See Pl.'s Opp'n Ex. E (Gov't's Resp. to Marino's § 2255
Pet.) at 9 [Dkt. No. 66-8 at ECF p. 10].
Lopez was also
publicly charged with, and pleaded guilty to, one count of
conspiracy,
for which he was sentenced to 42 months of
imprisonment.
See United States v. Lopez, No. 97-cr-084-RV
(N.D. Fla. June 26, 1998) [Dkt. No. 124-2].
-32-

Court

to

assess

the

full

extent

of

Lopez's

privacy

interest

without knowing anything about the type of records at issue.
Second,
that

as

discussed

DEA

agents

and

above,

Marino

prosecuting

has

adduced

attorneys

evidence
either

acted

negligently in failing to cross-check Lopez's story against the
Government's

broader

organization,

Parafan-Homen's

of

or improperly by presenting his testimony despite

knowing it was false.
the

investigation

Government

Marino has also presented evidence that

acted

improperly by

suppressing

or

failing

learn of discoverable and potentially exculpatory material.
American public has

a

strong public interest

in

defendant serving a long sentence

(in this case,

the

to

serious

crime

of

conspiracy

import

to
The

knowing if a
30 years)

cocaine

has

for
been

wrongfully convicted on the basis of perjured testimony that the
Government might

well

have

been

able prevent

through

its

own

investigation, compliance with its Brady obligations, or both.
Third,
this

while

Circuit's

it

case

is
law

both
to

reasonable

assume

that

and
some

consistent
portion

of

with
the

responsive records may implicate the privacy interests of Lopez
and others who may be mentioned in them,

see,

e.g.,

Davis,

968

F.2d at 1281 (persons involved in law enforcement investigations
"have a substantial interest in seeing that their participation
remains secret"),

this does not supply a basis to withhold the
-33-

records

in their entirety.

The

DEA puts

forth

no

reason why

redactions or selective withholding will not suffice to protect
any existing privacy interests.

See Nation Magazine, 71 F.3d at

896

not permitted "to exempt

(holding that

an

agency is

from

disclosure all of the material in an investigatory record solely
on the grounds that the record includes some information which
(emphasis in original) . 14

identifies a private citizen")
In

sum,

Marino's
perjuring
evidence

given

the

centrality

trial and sentencing,
himself

on

indicating

various
that

of

Lopez's

Lopez's

subsequent

occasions,

the

testimony

and

Government

the

was,

at

at

admission to
existence
a

of

minimum,

negligent in failing to be aware that Lopez was not telling the
truth,

Marino

has

plausibly

demonstrated

that

Exemption

7 (C)

"might" not apply to at least some of the responsive documents.
For

all

of

these

reasons,

the

Government's

categorical exemption is rejected,

assertion

of

a

and the Government's Renewed

Motion for Summary Judgment shall be denied.
However,
and

the

without

interests

determination that

14

knowing more about the records at

they

implicate,

the

the public interest

Court

cannot

in disclosure

issue,
make

a

outweighs

At oral argument, the Government conceded that redactions
would likely suffice to protect the privacy interests of any
individuals other than Lopez who might be mentioned in the
documents. Tr. at 8:4-7.
-34-

Consequently, Marino's request

the privacy interests at stake.

for summary judgment in her favor pursuant to Fed.

R.

Ci v.

P.

56(f) shall also be denied.
C.

The Government Must File a Vaughn Index

After seven years of litigation,
not

yet

submitted

a

Vaughn

the Government still has

index.

Instead,

it

continues

to

assert that it need not do so because information "regarding the
existence

or

non-existence

records

concerning

infringe

on

Decl.

<JI

the

a

third

of

third

law

party

party's

enforcement
is

investigative

reasonably

privacy."

First

likely

Supp.

to

Myrick

12.

The Government seems to have forgotten that after years of
hemming and hawing,
Having

done

so,

it has now withdrawn its Glomar response.

the

DEA

responsive records exist,

is

now

"required

(emphasis

added)

confirm

that

then either release them or establish

that they are exempt from disclosure."
1082

to

(citing Wolf v.

Marino II,
CIA,

473

685 F.3d at

F.3d 370,

380

(D.C. Cir. 2007)); see also ACLU v. CIA, 710 F.3d 422, 432 (D.C.
Cir. 2013)
case must

("With the failure of [a]

. Glomar response, the

proceed to the filing of a Vaughn index or

other description of the kind of documents the Agency possesses,
followed by litigation regarding whether the exemptions apply to

-35-

those documents.")

(citing Vaughn v.

Rosen,

484 F.2d 820

(D.C.

Cir. 1973)).
After the DEA searches its records
Memorandum Opinion and Order,
or

other

reasonably

it shall prepare a Vaughn index,

detailed

records and the reasons

compliance with this

~n

description

"entitled

particular

to

make

documents

appropriately withheld,"
those

arguments.

Washington v.

U.S.

the

responsive

for withholding them that will permit

the Court to assess any exemptions claimed.
be

of

individualized
[or

The DEA will then

arguments

portions

as

why

might

thereof]

to

be

and Marino will be entitled to

Citizens

for

Responsibility

Dep't of Justice,

No.

and

11-754

rebut

Ethics

(GK),

in

2013 WL

2549680, at *10 (D.D.C. June 12, 2013).
IV.

CONCLUSION

For

the

foregoing
will

reasons,
be

the

DEA' s

for

request

for

Judgment

summary

judgment in her

denied.

An Order shall accompany this Memorandum Opinion.

favor

under Rule

February 19, 2014

Marino's

Motion

Summary

denied,

and

Renewed

56 (f)

shall

also be

GladySKeSief
United States District Judge

Copies to: attorneys on record via ECF

-36-