Marino v. Drug Enforcement Administration

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

GRISELLE MARINO,

Plaintiff,

v. Civil Action No. 06-1255 (GK)

DRUG ENFORCEMENT
ADMINISTATION,

Defendant.

MEMORANDUM OPINION

Plaintiff Griselle Marino ("Plaintiff" or "Marino") brings

this action against the United States Drug Enforcement

Administration ("DEA" or "the Government") under the Freedom of

Information Act ( '' FOIA") , 5 u.s.c. § 552. Marino seeks

documents related to a Government cooperator who 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. No. 65]. Upon consideration of the

Motion, Opposition, Reply, Sur-reply, oral argument at the

Motion Hearing of February 5, 2014, and the entire record

herein, and for the reasons stated below, the Government's

Motion is denied.
I. BACKGROUND

A. Factual Background1

1. The Criminal Prosecution

In 1997, Carlos Marino was convicted of narcotics

conspiracy in the Northern District of Florida and sentenced to

365 months in prison. The Government's primary witness at his

trial was a co-conspirator named Jose Everth Lopez ("Lopez").

Lopez testified that he and Carlos Marino worked for an

international drug importation and distribution ring known as

the "Company," which was run out of Bogota, Columbia by a man

named Pastor Parafan-Homen. Pl.'s Opp'n Ex. 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 to South Florida, where he was

paid by Carlos Marino. Id. at 16, 20-27, 31 [Dkt. No. 66-5 at

ECF pp. 6-15]. Lopez further testified that Carlos Marino was

the "banker" or "money man" of the organization, and that

whenever money was spent by the conspiracy whet.her for

1
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, or other expenses - it came

from Marino. Id. at 33, 36, 39, 191-92 [Dkt. No. 66-5 at ECF

pp. 3-4, 18, 21-22]; see also Pl.'s Opp'n Ex. F (Order, Report

and Recommendation on § 2255 petition in United States v.

Marino, 3:97cr84/RV (N.D. Fla. Oct. 4, 2002)) ("Report &

Recommendation") at 6 [Dkt. No. 66-9].

The Government relied heavily on Lopez's testimony in its

opening and closing remarks and at sentencing. As Magistrate

Judge M. Casey Rodgers later observed on collateral review,

"Lopez was the government's key witness at trial and was the

primary witness who testified about defendant's involvement in a

conspiracy that actually moved cocaine." Pl.'s Opp' n Ex. F

(Report and Recommendation) at 7 [Dkt. No. 66-9]. Although

evidence from an unrelated investigation revealed that Carlos

Marino had been engaged in separate discussions with a

confidential informant named Edwin Rivas about importing cocaine

into the United States through the Miami airport, this plan was

never carried out, and there was little evidence linking it to

Parafan-Homen's 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." See Pl.'s ·Opp'n Ex. B (Sentencing

Tr.) at 11:20-12:24 [Dkt. No. 66-5 at ECF pp. 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. Specifically, at Marino's trial, Lopez

purported to be a low-level participant recruited to work for

the Company in late 1995, whereas he later admitted that he had

been involved in the conspiracy since 1988, had met personally

with Parafan-Homen on several occasions, and had attended a

small meeting of high-level conspirators in Bogota, Columbia in

1994 to discuss reorganizing the criminal enterprise. See Pl.'s

Opp' n Ex. C at 3623-3627, 3665-66. (trial transcript in United

States v. Pastor Parafan-Homen, CR 95-0722) [Dkt. No. 66-6].

2. 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. § 2255. See Pl.'s Opp' n Ex. A

(Joint Appendix) at 271 [ Dkt. No. 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 v. Maryland, 373 U.S. 83 (1963), by

suppressing notes of pre-trial interviews with Lopez, which

could have been used to impeach Lopez at trial and demonstrate

that his involvement in the conspiracy was more extensive than

he depicted. Id. at 277-282, 284-90 [Dkt. No. 66-2]. Carlos

Marino also claimed that the documents suppressed by the

Government would have shown that he (Carlos Marino) was not

involved in any of the operations of the conspiracy outside of

Miami, and that it was Lopez, not Marino, who was a manager of

the Parafen-Homen organization. Id. at 296-298 [Dkt. No. 66-3].

On October 4, 2002, Magistrate Judge Rodgers issued his

Report and Recommendation recommending that Carlos Marino's

motion for collateral relief be denied. While acknowledging

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

detailing his historical involvement in the conspiracy, was

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

determined that the "differences did not absolve defendant of

any responsibility or involvement in the conspiracy." Pl.'s

Opp'n Ex. F (Report and Recommendation) at 53 [Dkt. No. 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 lied on more than one occasion to

government agents [.]" Id. at 52. He then concluded that the

falsehoods in Lopez's testimony did not warrant collateral

relief because they either were "not central to the jury's

assessment of defendant's role in the offense, or were unknown

to the government at the time of defendant's trial." Id. at 51.

3. 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] Narcotics and Dangerous Drug

Information System (NADDIS) ." Letter from Marino to DEA FOIA/PA

Unit, dated May 4, 2004 ("FOIA Request") [Dkt. No. 5-l, Ex. A].

NADDIS numbers are unique multi-digit numbers that the DEA

assigns to the subjects of its investigations. They permit the

DEA to "retrieve [] investigative reports and information" from

its investigative database regarding a subject of interest

without searching by name. See First Supplemental Decl. of

Katherine L. Myrick ("First Supp. Myrick Decl.") ! 6 [Dkt. No.

65-2] . It is undisputed that Carlos Marino suspected that

3049901 was the NADDIS number assigned to Lopez, and therefore,

his request effectively sought the DEA' s investigative file on

Lopez.

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 The DEA categorically denied Carlos Marino's request. Its

response took the form of a "Glomar response," in which an

agency states that it "can neither confirm nor deny" the

existence of responsive records on the grounds that to do so

would reveal information exempt from disclosure under FOIA. 2

The DEA reasoned that disclosing even the existence of

responsive documents would invade the privacy interest of the

individual assigned to NADDIS number 304 9901 by revealing that

he or she had been the subject of a DEA investigation. The

agency therefore informed Carlos Marino that it would not

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 9, 2004, Carlos Marino filed an administrative

appeal with the Department of Justice's ("DOJ"'s) Office of

Information and Privacy ("OIP"), arguing that "no privacy

interest would be invaded by disclosing the information" he

sought because, as he pointed out in his original request, 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. Letter from Carlos Marino

to OIP, dated Aug. 9, 2004, at 2 [Dkt. No. 5-1, Ex. E]. On

January 18, 2005, 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 unwarranted

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

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

B. Procedural Background

On July 12, 2006, Carlos Marino filed this action seeking

judicial review of the DEA's decision. [Dkt. No. 1]. On

October 5, 2 00 6, the DEA filed its first Motion for Summary

Judgment. [Dkt. No. 5]. On March 16, 2007, Judge Ricardo

Urbina, the District Court Judge previously assigned to this

case, summarily granted the Government's first Motion for

Summary Judgment after Carlos Marino failed to file an

opposition. Carlos Marino then moved for reconsideration on

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

November 30, 2009 [Dkt. No. 16]. Judge Urbina denied both

motions on August 5, 2010. See Marino v. DEA, 729 F. Supp. 2d

237 (D.D.C. 2010) ("Marino I"). Judge Urbina reasoned that

3
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. Id. at 243-245.

On appeal, the D.C. Circuit reversed. Marino v. DEA, 685

F.3d 1076 (D.C. Cir. 2012) ("Marino II"). The Court of Appeals

emphasized that the only issue under consideration was the

propriety of the agency's Glomar response, which is "an

exception to the general rule that agencies must acknowledge the

existence of information responsive to a FOIA request and

provide specific, non-conclusory justifications for withholding

that information." Id. at 1078 n.1 (citation and internal

quotation marks omitted).

The Court of Appeals held that Carlos Marino's

identification of public records linking NADDIS number 3049901

to Lopez presented a plausible basis to overcome the DEA's

Glomar response because "[u]nder FOIA' s 'public domain'

exception, an agency may not rely on an '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, "[e]ven if later in litigation the

DEA showed legitimate grounds to withhold every document in

NADDIS file No. 3049901, Marino has raised a meritorious defense
-9-
that the DEA' s justification for refusing even to confirm the

file's existence has been undermined by prior public

disclosure." Id. at 1082.

On remand and reassignment of the case to this Judge, the

Court granted relief from the prior judgment, denied the DEA' s

Motion for Summary Judgment, directed the DEA to file an Answer

to the Complaint, and set a schedule for limited discovery.

[Dkt. No. 49].

The DEA' s Answer, filed on March 25, 2013, continued to

assert Glomar as its sole substantive defense. [Dkt. No. 53].

However, on May 7, 2013, the Court held a status conference at

which the Government informed the Court for the first time that

it was not certain whether it would continue to pursue this

defense. The parties also informed the Court at this time that

Carlos Marino had recently been released from prison due to

terminal cancer. The Court then set deadlines for the

Government to decide on its Glomar response and for summary

judgment briefing.

Thereafter, the Government continued to equivocate on its

Glomar response before finally deciding, on May 29, 2013, that

it would "no longer assert the Glomar response in this case."

[Dkt. No. 62]. The DEA now concedes that its assignment of

NADDIS number 3049901 to Lopez is a matter of public record, but
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has failed to ever explain why it took seven years and a

successful appeal to the Court of Appeals for Marino to prevail

on this issue. See Def.'s Mot. at 7. 4

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. The result was

that the Government filed its Renewed Motion for Summary

Judgment on May 31, 2013, just two days after it withdrew its

Glomar response, but did not provide the Court with anything

resembling a conventional Vaughn index. [Dkt. No. 65]. On June

14, 2013, Marino filed his Opposition. [ Dkt. No. 66] . On June

24, 2013, the Government filed its Reply [Dkt. No. 68], and on

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

Court. [ Dkt. No 7 0] .

On July 16, 2013, after summary judgment briefing was

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

Marino passed away. See Statement Noting Death of Plaintiff

Carlos Marino [Dkt. No. 72]. On December 5, 2013, the Court

4
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 to substitute on his behalf.

[ Dkt. Nos. 8 9, 90] . On February 5, 2014, the Court held oral

argument on the DEA's Motion. On February 10, 2014, the

Government filed a Notice of Authority, citing an appellate

brief Carlos Marino had filed in 1998 in his criminal case that

the Government purportedly discussed at oral argument in this

case. [Dkt. No. 93].

II. LEGAL STANDARD UNDER FOIA

The purpose of FOIA is to "pierce the veil of

administrative secrecy and to open agency action to the light of

public scrutiny." Morley v. C.I.A., 508 F.3d 1108, 1114 (D.C.

Cir. 2007) (quoting Dep't of Air Force v. Rose, 425 U.S. 352,

361 (1976)). FOIA "requires agencies to comply with requests to

make their records available to the public, unless the requested

records fit within one or more of nine categories of exempt

material." Oglesby v. Dep't of Army, 79 F.3d 1172, 1176 (D.C.

Cir. 1996) (citing 5 U.S.C. § 552 (a), (b)). Exemption 7 (C),

which is at issue in this case, permits an agency to withhold

law enforcement records when disclosure "could reasonably be

expected to constitute an unwarranted invasion of personal

privacy." 5 U.S.C. § 552 (b) (7) (C).

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 FOIA' s "limited exemptions do not obscure the basic policy

that disclosure, not secrecy, is the dominant objective of the

Act." ACLU v. U.S. Dep't of Justice, 655 F.3d 1, 5 (D.C. Cir.

2011) (citing Nat'l Ass'n of Home Builders v. Norton, 309 F.3d

26, 32 (D.C. Cir. 2002)). "If a document contains exempt

information,. the agency must still release 'any reasonably

segregable portion' after deletion of the nondisclosable

portions." Oglesby, 79 F.3d at 1176 (citing 5 U.S.C. § 552(b)).

"At all times, courts must bear in mind that FOIA mandates a

strong presumption in favor of disclosure, and that the

statutory exemptions, which are exclusive, are to be narrowly

construed." ACLU, 655 F.3d at 5 (internal citations and

punctuation marks omitted).

A district court reviews an agency's decision to withhold

responsive documents de novo. 5 U.S.C. § 552 (a) (4) (B). The

agency bears the burden of demonstrating that it has conducted

an adequate search, and that its decision to withhold any

responsive documents is justified. Petroleum Info. Corp. v.

Dep't of the Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992)

(citing 5 U.S.C. § 552 (a) (4) (B)).

"FOIA cases are typically and appropriately decided on

motions for summary judgment." Gold Anti -Trust Action Comm.,

Inc. v. Bd. of Governors of Fed. Reserve Sys., 762 F. Supp. 2d
-13-
123, 130 (D.D.C. 2011) (quoting Defenders of Wildlife v. Border

Patrol, 623 F. Supp. 2d 83, 87 (D. D.C. 2009)). The Court may

grant summary judgment on the basis of information provided in

agency affidavits or declarations, but only if such materials

(1) "describe the documents and the justifications for

nondisclosure with reasonably specific detail"; (2) "demonstrate

that the information withheld logically falls within the claimed

exemption"; and ( 3) show that the agency's explanations for

withholding documents "are not controverted by either contrary

evidence in the record nor by evidence of agency bad faith."

Military Audit 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] favor, and eschew

making credibility determinations or weighing the evidence."

Montgomery v. Chao, 546 F.3d 703, 706 (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. Second, it maintains that, to the

extent Marino's request seeks documents other than the single

document produced, such documents are exempt from disclosure

under FOIA Exemption 7(C). Marino refutes 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 scope of the request is the first

issue to be decided. Our Court of Appeals has emphasized that

"[a] l though a requester must 'reasonably describe' the records

sought, 5 U.S.C. § 552 (a) (3), an agency also has a duty to

construe a FOIA request liberally." Nation Magazine, Wash.

Bureau v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995)

(citations omitted).

In addition, the DOJ's own internal guidance reiterates

that " [ e] ven if the request 'is not a model of clarity,' an

agency should carefully consider the nature of each request and

give a reasonable interpretation to its terms and overall

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

of Information Act, Procedural Requirements, at 25 (2013)'

available at http://www.justice.gov/oip/foia-guide.html (last

visited February 11, 2014).
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 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 it limits Marino's request to two

categories of documents: ( 1) 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, the second category is not a

proper subject of a FOIA request because "it is a question

disguised as a request for documents: to answer it, one would

need to be totally familiar with the facts of the trials, the

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

the government's disclosure obligations[.]" Id. at 12.

Therefore, the Government concludes that the request only
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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." Id.

at 11-12 ( citing Zeman s k y v . EPA, 7 67 F . 2d 569, 57 4 ( 9th Ci r .

1985); DiViaio v. Kelly, 571 F.2d 538, 542-43 (lOth Cir. 1978);

Amnesty Int'l v. CIA, No. 07-5435, 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] number

3049901," whether introduced at the trials or not. Pl.'s Opp' n

at 24-26 (emphasis added). 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. Id. at 16-23.

For the following reasons, the Court concludes that Carlos

Marino's request is "reasonably susceptible" to the

interpretation urged by Marino, LaCedra v. Exec. Office for U.S.

Att'ys, 317 F.3d 345, 348 (D.C. Cir. 2003), and therefore, it

need not reach Marino's alternative contention that 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, Ex. A] (emphasis added) .
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Likewise, the third sentence of the request asked that if the

DEA withheld "any documents indexed under NADDIS No. 3049901,"

it send Marino any segregable portion of such documents. Id.

(emphasis added) . This expansive language is fully consistent

with Marino's interpretation and inconsistent with the narrow

reading urged by the Government. As 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 language in the first sentence of Marino's

request can be reconciled with the limiting language in the

second because the two sentences appear to have different

purposes. Whereas the first defines the scope of the request,

the second explains why (in Marino's view) such documents are

not exempt. In fact, the second sentence closely tracks the two

theories Carlos Marino repeatedly presented to this Court as to

why Exemption 7 (C) does not apply to the documents in Lopez's

file: first, that the events underlying the requested records

have already been publicly disclosed; and second, that the

Government's obligation to disclose Lopez's false testimony at

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his criminal trial established a public interest in the

requested records sufficient to counterbalance Lopez's privacy
6
interest in withholding them.

This reading of Marino's request is also consistent with

the structure of arguments presented by Marino during his

administrative appeal, 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. 5-1, Ex. E]. 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. Dep't of Justice, Freedom of

Information Act Reference Guide, at 4 (November 2003)). Marino

explained that his original request specifically set forth these

bases for release of the requested documents. Id.

Finally, the Government itself appears to have read the

second sentence of Marino's request primarily as an effort to

6
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, in its original Motion for

Summary Judgment, the DEA described the second sentence as an

attempt "to end-run the 7(C) exemption." Def.'s [Original] Mot.

for Summary Judgment at 9 [Dkt. No. 5]. Later, in its appellate

brief to the D.C. Circuit, the DEA argued that even if it did

publicly disclose an individual's NADDIS number, that fact

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

such an individual's files [, ] " indicating that the agency, in

fact, understood Marino to be seeking all such files. Pl.'s

Opp'n Ex. I (DEA's App. Br. to D.C. Cir.) at 11-12 (emphasis

added) [Dkt. No. 66-12].

For all the foregoing reasons, the second sentence of

Marino'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 Marino's

view, the requested documents are not exempt from disclosure.

By contrast, the first sentence does define the scope of the

request, and clearly and specifically seeks all documents

indexed to NADDIS number 3049901. Accordingly, the Court shall

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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 broadly, the agency is still entitled to summary

judgment because Exemption 7 (C) justifies its categorical

withholding of the requested documents. To prevail on this

argument, the DEA must make two independent showings. First, it

must persuade the Court that it has made a "good faith effort to

conduct a search for the requested records, using methods which

can be reasonably expected to produce the information

requested." Oglesby, 920 F.2d at 68. 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.

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 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 doubt that its search

was reasonably calculated to uncover all relevant documents."

Students Against Genocide, 257 F.3d at 838 (citing Nation

Magazine, 71 F.3d at 890). "In general, the adequacy of a

search is 'determined not by the fruits of the search, but by

the appropriateness of [its] methods.'" Hodge v. FBI, 703 F.3d

575, 579 (D.C. Cir. 2013) (citation omitted). "The agency must

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

records, using methods which can be reasonably expected to

produce the information requested." Students Against Genocide,

257 F.3d at 838.

The DEA has submitted declarations from Assistant United

States Attorney Fred E. Haynes ("Haynes"), the attorney

principally responsible for defending this case, and its FOIA

Chief, Katherine L. Myrick ("Myrick"), describing the extent of

the agency's search.

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

the criminal prosecutions of Marino and Parafan-Homen and

reviewing them for all "documents of significance" that are

"open to the public" and relate to Lopez or NADDIS number

-22-
 3049901. See Haynes Decl. CJf 10 [ Dkt. No. 65-1] ; Response to

Pl.'s First Set of Reqs. for Prod. of Docs. Nos. 1, 3, 4. 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. It did not extend to all DEA

records indexed to NADDIS number 304 9901 and, consequently, it

was not "reasonably calculated to uncover all" responsive

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

Myrick's declaration also falls short. She informs us that

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

found in DEA' s Investigative Reporting and Filing System

(IRFS)." First Supp. Myrick Decl. CJ[ 6. However, she did not

search IRFS for any records because, as she explained, IRFS "is

not indexed, as plaintiff's FOIA request sought, by a court's

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

public information, or by information that was required to be

made public in public trials." Id. CJ[ 7. This explanation is

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

seeks all documents indexed to NADDIS number 3049901, and not

8
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. Marino Has Demonstrated a Significant Public
Interest in the Documents Under Exemption 7(C)

The 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 already noted, Exemption 7 (C) protects law enforcement

records for which disclosure "could reasonably be expected to

constitute an unwarranted invasion of personal privacy." 5

U.S.C. § 552 (b) (7) (C). The Supreme Court has held that once the

Government has shown that the privacy concerns addressed by

Exemption 7 (C) are present, the burden shifts to the 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." Nat' 1 Archives & Records Admin.

v. Favish, 541 U.S. 157, 172 (2004). To satisfy this burden

where, as here, "the public interest being asserted is to show

that responsible officials acted negligently or otherwise

improperly in the performance of their duties, 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, in the

final analysis, "balance the public interest in disclosure

against the [privacy] interest Congress intended the Exemption

to protect'" in order to determine whether the Exemption

applies. ACLU, 655 F.3d at 6 (citing U.S. Dep't of Justice v.

Reporters Comm. for Freedom of the Press, 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. Marino

has presented evidence indicating that the Government "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 a

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

alia, 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 knew, through its years-long investigation

of the Parafan-Homen organization, that several other co-

conspirators had attempted to meet with Parafan-Homen in

Columbia but were never allowed to physically see him. Pl.'s

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

at 12 [Dkt. No. 66-7]. 10 The fact that Lopez was able to meet

face-to-face with the conspiracy's leader on more than one

occasion while others were not reasonably suggests Lopez was

part of Parafan-Homen's inner circle and should have led

Government officials to suspect his involvement in the

conspiracy was more extensive than he depicted at Ma~ino's

trial.

Second, despite its discovery obligations under Brady v.

Maryland, 373 U.S. 83 (1963), the Government did not disclose

10
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 Parafan-
Homen 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 his § 2255 Motion. See Pl.'s Opp' n Ex. E (Gov' t' s

Resp. to Marino's § 2255 Pet.) at 7-8 [Dkt. No. 66-8 at ECF pp.

8-9] . Instead, 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 has submitted a list of NADDIS numbers

associated with the Parafan-Homen conspiracy indicating that

Carlos Marino was the last of fifty-eight investigative subjects

to enter the DEA' s database. See Pl.'s Opp' n, Ex. A (List of

Persons Associated with the Company in Numerical Sequence in

Which They Were Entered into the NADDIS Databanks) [Dkt. No. 66-

4 at 124]. In fact, it appears he did not enter the DEA' s

database until Lopez's arrest in August 1997, indicating the

Government was not aware of his existence until that point.

When he did finally enter the database, his NADDIS number was

4210827. By contrast, Lopez's NADDIS number, 3049901, which is

more than one million numbers lower than Marino's and the

twenty-second entry on the list, suggests he was on the DEA' s

radar long before his arrest. These circumstances might 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 the Government had been investigating the

Parafan-Homen organization for years, and although 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 statements, and relied

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

a sentencing enhancement based on his purportedly managerial

role in the enterprise. See Pl.'s Opp' n, Ex. B (sentencing

transcript) at 6-10 [Dkt. No. 66-5 at ECF nos. 24-28]. These

circumstances 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 it "was totally

unrelated to the evidence against Mr. Marino." Tr. at 7:4-5.

Lopez's testimony was absolutely critical to any finding that

11
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 falsehoods related more to his own criminal

activities than Marino's, his readiness to lie under oath

seriously impacted his credibility. The Government's failure to

investigate and disclose evidence indicating that he was lying

potentially deprived the jury of a full opportunity to assess

his trustworthiness as a witness. See Tr. at 6:12-13.

Moreover, credibility aside, unlike in Marino's § 2255

proceeding, the focus in this case is not solely whether the

Government's conduct prejudiced Marino, but whether the public

would want to know about it. 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, 655 F. 31d at 14

("matters of substantive law enforcement are properly the

subject of public concern") (citation omitted).

In sum, even if the Government did not definitively know

that Lopez was perjuring himself at Marino's trial, its failure

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

and to disclose all exculpatory evidence to Carlos Marino,
-29-
reasonably suggest that it "might" have acted negligently or

otherwise improperly during Marino's prosecution. This low

threshold of proof is all that is required, at this juncture, to

survive summary judgment. Favish, 541 U.S. at 174. 12

3. The DEA Does Not Identify Any Basis for
Categorical Withholding

Third and finally, the DEA argues that even if Marino has

made an evidentiary 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 [.]" Lopez v. Dep' t of

Justice, 393 F.3d 1345, 1349 (D.C. Cir. 2005). Instead, "rules

12
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," are

appropriate "when the range of circumstances included in [the]

category 'characteristically supports an inference' that the

statutory requirements for exemption are satisfied" so long as a

request falls within the category. Nation Magazine, 71 F.3d at

893 (citing United States v. Landano, 508 U.S. 165, 176-80

(1993)). At the same time, the Court of Appeals has cautioned

that, "[b]ecause the myriad considerations involved in the

Exemption 7 (C) balance defy rigid compartmentalization, per se

rules of nondisclosure based upon the type of document

requested, the type of individual involved, or the type of

activity inquired into, are generally disfavored." Stern v.

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

The DEA has not come close to showing that categorical

withholding is appropriate in this case. As a preliminary

matter, it has not, as discussed supra, demonstrated that it

conducted an adequate search for responsive records. In the

absence of such a search, 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. See Davis v. U.S. Dep't of Justice, 968 F.2d

1276, 1282 n.4 (D.C. Cir. 1992) ("If the only basis for
-31-
nondisclosure is an individual's interest in remaining

anonymous, and an excerpt revealing his identity is disclosed,

there may no 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 is inappropriate because circumstances

exist that do not "characteristically support" 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 See, e.g., Kimberlin v. Dep't of

Justice, 139 F.3d 944, 949 (D.C. Cir. 1998) (privacy interest of

individual "undoubtedly" diminished where "the public already

knows who he is, what he was accused of, and that he received a

relatively mild sanction") . Naturally, it is difficult for the

13
In addition to testifying against Carlos Marino and Parafan-
Homen, 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, as discussed above, Marino has adduced evidence

that DEA agents and prosecuting attorneys acted either

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

Government's broader investigation of Parafan-Homen's

organization, or improperly by presenting his testimony despite

knowing it was false. Marino has also presented evidence that

the Government acted improperly by suppressing or failing to

learn of discoverable and potentially exculpatory material. The

American public has a strong public interest in knowing if a

defendant serving a long sentence (in this case, 30 years) for

the serious crime of conspiracy to import cocaine has 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, while it is both reasonable and consistent with

this Circuit's case law to assume that some portion of 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 (holding that an agency is not permitted "to exempt from

disclosure all of the material in an investigatory record solely

on the grounds that the record includes some information which

identifies a private citizen") (emphasis in original) . 14

In sum, given the centrality of Lopez's testimony at

Marino's trial and sentencing, Lopez's subsequent admission to

perjuring himself on various occasions, and the existence of

evidence indicating that the Government was, at a 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 assertion of a

categorical exemption is rejected, and the Government's Renewed

Motion for Summary Judgment shall be denied.

However, without knowing more about the records at issue,

and the interests they implicate, the Court cannot make a

determination that the public interest in disclosure outweighs

14
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-
the privacy interests at stake. Consequently, Marino's request

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, the Government still has

not yet submitted a Vaughn index. Instead, it continues to

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

existence or non-existence of law enforcement investigative

records concerning a third party is reasonably likely to

infringe on the third party's privacy." First Supp. Myrick

Decl.