In 1991, Adolfo Correa Coss was convicted of drug trafficking, but has steadfastly maintained his innocence. While working towards clearing his name, he discovered an FBI informant named Guillermo Casas had a hand in his arrest and indictment. He also discovered that Casas kept detailed notebooks containing records of his drug purchases and sales.
In 1989, he was arrested for possession of cocaine with intent to deliver. The search of his home, car, and business “was based on [the allegations of] a confidential . . . police informant” who claimed to have made three separate purchases of cocaine from Coss on May 8, 1989. At trial and during his subsequent appeal, Coss alleged that the informant – who he even then believed was Casas – had fabricated his story; as a result, Coss maintained, the police officer’s search-warrant application contained false statements and was thus invalid. These arguments did not succeed, and Coss’s conviction was affirmed.
In early 2013, Coss filed FOIA requests with the FBI and the Executive Office for United States Attorneys (EOUSA) for these notebooks, in hopes of obtaining exonerating information. Instead, he spent the next several months being told less than nothing by both agencies, which rebuffed him with Glomar responses, refusing to confirm or deny the existence of the notebooks.
After multiple, increasingly narrow FOIA requests were submitted by Coss in hopes of evading the Glomar blockade, the EOUSA finally told him that it had found nine boxes which could possibly contain the requested notebooks, but that Coss would need to pay up front for the costs involved in searching them. Coss sent the DOJ a check for the amount requested. The agency processed it on May 23, 2014… and then did nothing. Coss filed his lawsuit on July 13, 2014. Over two months later, the DOJ finally informed Coss that the notebooks he sought weren’t in the boxes.
The FBI, on the other hand, continues to cling to its Glomar — even in the face of Coss’ lawsuit — claiming
it isn’t done dicking him around he hasn’t “exhausted his administrative remedies.” The court dismisses Coss’ claims against the EOUSA/DOJ, stating that the agencies made a “good faith effort” to locate the documents. But his claims against the FBI will be allowed to stand. The court tackles each of the FBI’s weak counterclaims from its motion for dismissal.
There is no dispute that “[a] FOIA requester is generally required to exhaust administrative appeal remedies before seeking judicial redress.” The difficulty here is locating an FBI decision from which Coss should have appealed. As set forth in Section I, supra, the FBI’s July 30, 2013, Glomar response offered Plaintiff several avenues through which he might overcome the Bureau’s position: have the third party sign an authorization form, prove the third party’s death, or demonstrate that the public interest in disclosure outweighed the third party’s privacy interests. Apparently picking door number three, Coss responded with his August 16 letter, stating, “The public interest in ensuring that no innocent person is convicted of a crime far outweighs any privacy interest in withholding the information.”
As the FBI never responded thereafter, it seems disingenuous for the Bureau to now adopt a failure-to-appeal position. In other words, Plaintiff followed the instructions of the July 30 letter, and even though his justification was rather scant, the Bureau would still have needed to reject it in order for Coss 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: “[I]f an agency fails to make and communicate its ‘determination’ whether to comply with a FOIA request within certain statutory timelines [20 working days here], the requester ‘shall be deemed to have exhausted his administrative remedies.’” The Bureau, consequently, may not rely on exhaustion here.
The FBI’s Glomar response similarly receives no love.
In this case, the FBI contends that the “disclosure of any information would tend to identify a third-party individual, and the FBI discerned no public interest in disclosure of this information and found that privacy interests were paramount.” Yet this is a mere parroting of the standard without any clear thought about what is actually sought here. All Coss demands in this suit are the notebooks in which Casas detailed his drug transactions. Their existence is not secret; indeed, it is printed for all to see in the pages of the federal reporter. As the Seventh Circuit explained, “From above a trapdoor in Casas’ bedroom closet, DEA agents recovered . . . some notebooks . . . . [which] contained records and tabulations of multiple multikilogram cocaine transactions.”
As Coss simply seeks the notebooks that were admitted in Casas’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. He has made clear on multiple occasions, furthermore, that all personally identifying material that does not refer to him may be redacted. Refusing to acknowledge whether or not the notebooks exist borders on foolishness.
As the ruling closes out, the judge sends one final shot across the FBI’s obfuscatory bow:
The FBI notes that, as a courtesy once the suit was filed, it searched its Central Records System using Coss’s name and located no material. This could well be relevant had Plaintiff’s request been for FBI records pertaining to himself. Given that he sought only the Casas notebooks, it is unsurprising that these documents were not uncovered in such a search. While these efforts by the Bureau deserve commendation, they are no substitute for a targeted search for the actual notebooks.
It’s refreshing to see a government agency’s Glomar get shot down by a judge. The problem is that the supposed “administrative remedies” available to FOIA requesters rarely remedy anything. For far too many FOIA requesters, the FOIA lawsuit is the only remedy that seems to produce any results.