Pickard v. Department of Justice
653 F.3d 782
9th Cir.2011Background
- Pickard, an inmate, seeks DEA records about informant Skinner under FOIA; DEA refused with Glomar response under exemptions 6,7(C),(D),(F).
- Skinner’s status had been disclosed in Pickard’s criminal trial, with testimony by Skinner and DEA agents identifying him as a confidential informant.
- District court held Skinner’s status was not officially confirmed under 5 U.S.C. § 552(c)(2) and upheld Glomar.
- Ninth Circuit reverses, holding Skinner’s status was officially confirmed in open court and Glomar cannot control; DEA must produce a Vaughn index and argue exemptions as appropriate.
- Court remands for district court proceedings to determine disclosure with a Vaughn index, not broad disclosure of all Skinner-related records.
- Concurring judge agrees with result but emphasizes different interpretation of official confirmation and potential practical implications for prosecutors and informants.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Skinner’s informant status was officially confirmed | Pickard: status officially confirmed in court | Skinner’s status not officially confirmed | Yes; status officially confirmed in open court. |
| Whether Glomar applies or must be abandoned | Glomar should not apply after confirmation | Glomar remains applicable only if not officially confirmed | Glomar cannot apply; must confirm or deny. |
| What relief follows after confirmation | Produce records or Vaughn index | Continue with exemptions and withholding as appropriate | DEA must produce Vaughn index and proceed with exemptions. |
| Scope of disclosure post-confirmation | All relevant Skinner records should be disclosed | Only those not exempt should be disclosed | Index and exemptions apply; not all records must be released. |
Key Cases Cited
- Wolf v. CIA, 473 F.3d 370 (D.C. Cir. 2007) (official acknowledgment/Glomar limits; clarify when to deny or confirm)
- Afshar v. U.S. Dep't of State, 702 F.2d 1125 (D.C. Cir. 1983) (official acknowledgment standard; defines official acknowledgment context)
- Fitzgibbon v. CIA, 911 F.2d 755 (D.C. Cir. 1990) (official and documented disclosure criteria for acknowledgments)
- Boyd v. Criminal Div. of U.S. Dep't of Justice, 475 F.3d 381 (D.C. Cir. 2007) (reaffirmation of balance and process in FOIA/§552(c)(2))
- Benavides v. DEA, 968 F.2d 1243 (D.C. Cir. 1992) (acknowledgment of existence vs. contents exemption; role of waiver)
- Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) (requirement of itemized Vaughn index for exemptions)
- North v. U.S. Dep't of Justice, 658 F. Supp. 2d 163 (D.D.C. 2009) (privacy/safety interests in informant context)