Pickard v. Dep't of Justice

• Decision Date: 15 November 2016
• Docket Number: No. C 06–00185 CRB,C 06–00185 CRB
• Citation: 217 F.Supp.3d 1081
• Parties: William Leonard PICKARD, Plaintiff, v. DEPARTMENT OF JUSTICE, Defendant.
• Court: U.S. District Court — Northern District of California

217 F.Supp.3d 1081

William Leonard PICKARD, Plaintiff,

v.DEPARTMENT OF JUSTICE, Defendant.

No. C 06–00185 CRB

United States District Court, N.D. California.

Signed November 15, 2016

Mark Thomas Rumold, Electronic Frontier Foundation, San Francisco, CA, for Plaintiff.

Ellen London, Neill Tai Tseng, United States Attorney's Office, San Francisco, CA, for Defendant.

ORDER GRANTING MOTION FOR DE NOVO REVIEW AND HOLDING THAT GOVERNMENT MAY WITHHOLD MATERIALS

CHARLES R. BREYER, UNITED STATES DISTRICT JUDGE

This is a long-standing FOIA case involving a convicted LSD manufacturer's search for information about a confidential informant who testified against him. The particular motion that is pending, however—Defendant United States Department of Justice's Second Motion for De Novo Determination of Dispositive Matter Referred to Magistrate Judge, 2d Mot. for De Novo Review (dkt. 260)—involves information that the parties agree is already known, because a confidential informant has already disclosed it. The motion challenges an order by Magistrate Judge Nathanael M. Cousins holding that none of the government's claimed FOIA exemptions apply, and ordering released the three categories of materials that Plaintiff William L. Pickard currently seeks: (1) confidential informant Gordon Skinner's name, (2) information Skinner has voluntarily disclosed to the public, and (3) Skinner's NADDIS number.¹ See generally Order to Release (dkt. 243).

That Pickard only currently seeks the three categories that he does makes the Court's task unusual. Ordinarily, it is clear to the Court that its rulings will have some impact on the parties before it. That Pickard only currently seeks the three categories that he does also makes the Court's task more difficult. While the Court has the benefit of the government's Vaughn index, and a set of documents compiled by the government in response to Pickard's broader initial FOIA request, the Court does not know which portions of which documents represent material that "Skinner has voluntarily disclosed to the public." Accordingly, the Court cannot do a meaningful in camera review of the relevant materials.

Nevertheless, and in the absence of controlling authority in the Ninth Circuit, the Court concludes that the government may withhold Skinner's name and the information that he voluntarily disclosed to the public under FOIA Exemption 7(D), which pertains to confidential informants. The Court does not reach the question of whether the same materials could also be withheld under Exemption 7(F), which pertains to safety, or Exemption 7(C), which pertains to privacy interests. The Court further holds that the government may withhold Skinner's NADDIS number under Exemption 7(E), which pertains to law enforcement techniques.

I. BACKGROUND

Plaintiff is an inmate at the U.S. Penitentiary in Tucson, Arizona, having been convicted in 2003 of offenses relating to LSD, and sentenced to life in prison. D MSJ (dkt. 184) at 1. In January 2005, Plaintiff submitted a request to the Drug Enforcement Administration ("DEA") seeking information and documents pertaining to DEA informant Skinner. Id. at 2. Specifically, he sought any information on

(1) Skinner's criminal history (including records of arrests, convictions, warrants, or other pending cases), (2) records of all case names, numbers, and judicial districts where he testified under oath, (3) records of all monies paid in his capacity as a federal government informant, (4) all records of instances where the DEA intervened on his behalf to assist him in avoiding criminal prosecution, (5) all records of administrative sanctions imposed for dishonesty, false claims, or other deceit, (6) all records of any benefits of any nature conferred, (7) all records of deactivation as a confidential informant and the reasons for deactivation, and (8) all records concerning Skinner's participation in criminal investigations.

Id. In February 2005, the DEA denied this request, citing FOIA Exemptions 6 and 7(C), without confirming or denying the existence of any records about Skinner. Id. The Office of Information and Privacy upheld that response. Id.

Plaintiff then brought suit in this court. Id. The government moved for summary judgment, and the Court denied the motion without prejudice, holding that the DEA had not adequately demonstrated that a Glomar response (a refusal to confirm or deny the existence of records pertaining to an individual) was appropriate. Order Denying MSJ (dkt. 62) at 5–6. The government then brought a second motion for summary judgment, fully briefing the Glomar response issue. See Pickard v. Dep't of Justice , 653 F.3d 782, 784–85 (9th Cir. 2011). The Court granted that motion, finding that Skinner's identity as a confidential informant had not been "officially confirmed" under the Privacy Act, and that a Glomar response was appropriate under Exemptions 7(C) and 7(D). Id. at 785.

In July 2011, the Ninth Circuit reversed and remanded, holding that, because the government had publicly disclosed Skinner's status as a confidential informant in open court in the course of official proceedings, a Glomar response was no longer appropriate. Id. at 787–88. The court explained, "[t]his is not to say that the DEA is now required to disclose any of the particular information requested by Pickard." Id. at 788. The government was to produce a Vaughn index, "raise whatever other exemptions may be appropriate, and let the district court determine whether the contents, as distinguished from the existence , of the officially confirmed records may be protected from disclosure under the DEA's claimed exemptions." Id.

In March 2012, the government filed its third Motion for Summary Judgment but did not file a Vaughn index. See generally D 3rd MSJ (dkt. 140). Plaintiff filed a cross-motion for summary judgment. See generally P 3rd MSJ (dkt. 152). The Court denied both motions and ordered the government to file a Vaughn index within 5 days. See Minutes (dkt. 165). The government did so. See Vaughn Index (dkt. 166).

In May 2014, the Court denied the government's fourth motion for summary judgment after finding its Vaughn index "supremely unhelpful." MSJ Order (dkt. 198) at 1, 7, 11. The Court also denied Pickard's cross-motion for summary judgment, which requested release of the same three categories of information at issue in the present motion. Id. at 11; P MSJ Reply (dkt. 191) at 3. The Court found that without an adequate Vaughn index, "the Court [could not] know if releasing something as basic as Skinner's name would compromise an important privacy interest, endanger any individual's (including Skinner's) physical safety, or run afoul of one of the other claimed exemptions." MSJ Order at 9. The Court then ordered the government "to submit (1) an adequate Vaughn index and (2) all of the responsive documents that the government continues to withhold in full or in part to Magistrate Judge Nathanael Cousins for review of ‘whether the contents, as distinguished from the existence , of the officially confirmed records may be protected from disclosure under the DEA's claimed exemptions.’ " Id. at 11 (citations omitted).

On December 24, 2015, Judge Cousins issued a tentative ruling, concluding that "the government has provided no evidence to carry its burden of proving that documents in the three categories qualify for exemptions," and ordered the release of documents in the three categories. See Tentative Ruling (dkt. 227) at 1. The parties submitted additional briefing and an additional declaration, and on May 2, 2016, Judge Cousins issued an order releasing the three categories of documents. See generally Order to Release. The order explained that "the government may not offer only general government interests that are present in virtually all cases." Id. at 2. It relied on United States v. Apperson , 642 Fed.Appx. 892 (10th Cir. 2016), which involved Pickard's challenge to a Kansas district court's denial of his motion to unseal Skinner's confidential informant file. Id. at 2–3. Although Judge Cousins recognized that a motion to unseal a file "applies a different standard than a FOIA request," he nonetheless found Apperson relevant because it, too, found the government's articulated interests to be too generalized. Id. at 3.² Judge Cousins also cited to a case that this Court decided about Vaughn indexes, see Order at 2 (citing Muchnick v. Dep't of Homeland Sec. , No. CV 15–3060 CRB, 2016 WL 730291, at *3 (N.D. Cal. Feb. 24, 2016) (holding that boilerplate explanations for withholdings are improper)), although Judge Cousins had already found the Vaughn index in this case sufficient, see generally Order Finding Vaughn Index Sufficient (dkt. 219). The order did not discuss any documents or any claimed exemptions. See generally Order to Release. Judge Cousins ordered the parties to meet by May 16, 2016, to determine what information had been publicly disclosed, but the parties did not meet. Order to Release at 3; Response to Order Requesting Additional Information (dkt. 253) at 1 (explaining that because the government moved for De Novo determination, the parties have not conferred).³

The government filed a Motion for De Novo Determination of Dispositive Matter Referred to Magistrate Judge as to whether the government must release the withheld documents. See generally D Mot. De Novo (dkt. 244). Pickard opposed. P Opp'n to D Mot. De Novo (dkt. 246) at 1–2. However, the Court required the parties to re-file, as their briefs inappropriately incorporated previous briefs. See Order Terminating Motion, Vacating Hearing, Directing Filing of New Briefs, and Setting New Hearing Date (dkt. 255) at 2 ("Endless references to past briefs require the Court to scour the docket to determine what the parties are actually arguing."). The government re-filed a Motion for De Novo Review of Judge Cousins's order, 2d Mot. for De Novo Review, Pickard has opposed that motion, Opp'n to 2d Mot. for De Novo Review ...