Coss v. DOJ, No. 14-1326, 2015 WL 1700847 (D.D.C. Apr. 15, 2015) (Boasberg, J.)
Re: Request for notebooks detailing confidential informant's drug transactions
Disposition: Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment
- Litigation Considerations, Adequacy of Search: The court holds that "[b]ecause [EOUSA's] [d]eclarations establish that EOUSA (1) identified where the relevant notebooks might be stored, (2) searched the nine boxes, and (3) certified that there were no records systems or locations not searched where the notebooks might have been found, . . . the agency has complied with FOIA." The court notes that "[t]he sole argument Plaintiff can muster in opposition is to complain that the agency searched for documents using incorrect spellings of his and [the informant's] names." The court finds that "[h]e is wrong." "[EOUSA's] [d]eclaration shows that Defendant searched for both names with correct spellings."
- Litigation Considerations, Exhaustion of Administrative Remedies: The court holds that "[t]he Bureau . . . may not rely on exhaustion here." The court relates that "the FBI's . . . Glomar response offered Plaintiff several avenues through which he might overcome the Bureau's position" one of which was "demonstrat[ing] that the public interest in disclosure outweighed the third party's privacy interests." The court relates that "[p]laintiff followed the instructions of the . . . letter, and even though his justification was rather scant, the Bureau would still have needed to reject it in order for [plaintiff] to know he should then pursue an appeal." "Its radio silence left him in FOIA limbo." "In such an instance, the law makes clear that exhaustion is not a proper defense."
- Exemption 7(C), Glomar: The court holds that "the FBI must search its files for the notebooks." The court explains that, "[a]s [plaintiff] simply seeks the notebooks that were admitted in [the informant's] and his co-defendants' trial, this is not a case in which Plaintiff is endeavoring to unmask the identity of an informant or to compromise anyone's security." Therefore, the court holds that defendant "will have to search for [the notebooks]."