Pickard v. U.S. Department of Justice
706 F. App'x 388
9th Cir.2017Background
- Plaintiff William L. Pickard submitted a FOIA request to the DEA for records concerning confidential informant Gordon Todd Skinner.
- The DEA withheld Skinner’s name and information he had given under FOIA exemption 7(D) (confidential sources); the agency also withheld Skinner’s identifying number under exemption 7(E) (not challenged on appeal).
- A DEA lawyer declared that the DEA gives express assurances of confidentiality to informants in Skinner’s position; Skinner’s written agreement reflected that assurance.
- The district court upheld withholding under exemption 7(D) and treated Plaintiff’s unpursued claims as withdrawn, effectively dismissing them for failure to prosecute.
- The district court’s Vaughn index was challenged but the Ninth Circuit found it sufficient; the court did not make segregability findings for the contested categories because Plaintiff was not entitled to any of the withheld information.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether exemption 7(D) protects release of Skinner’s name and trial-disclosed info | Skinner’s identity and prior trial disclosures should be public | Skinner gave information with an express assurance of confidentiality, so 7(D) applies | Exemption 7(D) applies; withheld properly |
| Whether official acknowledgment/public disclosure defeats exemption | Public disclosure of some info prevents withholding | An exemption still applies even if info has been officially acknowledged | Public disclosure does not preclude withholding under a valid FOIA exemption |
| Whether district court properly dismissed Plaintiff’s remaining claims as withdrawn | Dismissal was improper because Plaintiff did not withdraw claims and opposed summary judgment | Defendant implicitly argued claims were abandoned by failure to seek summary judgment | Ninth Circuit: dismissal was an abuse of discretion; vacated and remanded |
| Sufficiency of the Vaughn index | Vaughn index inadequate | Vaughn index provided sufficient detail | Vaughn index was sufficient |
Key Cases Cited
- U.S. Dep’t of Justice v. Landano, 508 U.S. 165 (1993) (confidentiality assessed at time of communication; express assurances are dispositive)
- Animal Legal Def. Fund v. FDA, 836 F.3d 987 (9th Cir. 2016) (standard of de novo review for FOIA exemptions)
- Pickard v. DOJ, 653 F.3d 782 (9th Cir. 2011) (official acknowledgment does not preclude application of a FOIA exemption)
- Rosenfeld v. DOJ, 57 F.3d 803 (9th Cir. 1995) (express promises of confidentiality are easily proven and compelling)
- Hamdan v. DOJ, 797 F.3d 759 (9th Cir. 2015) (Vaughn index sufficiency reviewed de novo)
- Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) (establishing the requirement for a Vaughn index)