Pickard v. Department of Justice
Pickard v. Department of Justice
Opinion of the Court
ORDER GRANTING MOTION FOR DE NOVO REVIEW AND HOLDING THAT GOVERNMENT MAY WITHHOLD MATERIALS
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 Na-thanael 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.
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 tó 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
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.
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 (dkt. 264), and the government has replied, Reply re 2d Mot. for De Novo Review (dkt. 265).
II. LEGAL STANDARD
“The Freedom of Information Act was enacted to facilitate public access to Government documents.” United States Dep’t of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991). The purpose of the Act is “ ‘to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.’ ” Id. (citing Dep’t of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976)). “Consistently with this purpose, as well as the plain language of the Act, the strong presumption in favor of disclosure places the burden on the agency to justify the withholding of any requested documents.” Id.
“Pursuant to 28 U.S.C. § 636(b)(1), Federal Rule of Civil Procedure 72(b), and Civil Local Rule 72-3, a party may object to a magistrate judge’s proposed findings and recommendations by filing a motion for a de novo determination of a dispositive matterf ] referred to a magistrate judge.” REO Capital Fund 4, LLC v. Fuller, No. 15-cv-03252-JST, 2015 WL 4941742, at *1
III. DISCUSSION
The government argues that Judge Cousins erred in ordering the release of the three categories of material sought, because (A) official confirmation does not require any records to be released; (B) the threshold requirement of Exemption 7 has been met; (C) Exemption 7(D) applies to Skinner’s name and the materials he disclosed; (D) Exemptions 7(F) and 7(C) apply to Skinner’s name and the materials he disclosed; and (E) Exemption 7(E) applies to Skinner’s NADDIS number. See generally 2d Mot. for De Novo Review. This order concludes that withholding is proper under Exemptions 7(D) and 7(E).
A. Official Acknowledgment
The government argues that official acknowledgment does not require the release of any of the materials in this case for two reasons: first, because “the Ninth Circuit already rejected [that argument] in this very case,” and second, because Pickard has not made the showing required. 2d Mot. for De Novo Review at 6-7. Pickard responds that the Ninth Circuit did not mean what it said about official confirmation, and that it is the government’s fault that he is unable to make the required showing. Opp’n to 2d Mot. for De Novo Review at 13-15.
1. Holding in Pickard re Official Acknowledgment
As to the Ninth Circuit’s holding in this case, the court explained: “[W]hen information has been either ‘officially acknowledged’ or ‘officially confirmed,’ an agency is not precluded from withholding information pursuant to an otherwise valid exemption claim; however, a Glomar response is no longer appropriate-” Pickard, 653 F.3d at 786 (emphasis added). The Ninth Circuit went on to cite to Wolf v. CIA, 473 F.3d 370, 379 (D.C. Cir. 2007), for the proposition that official acknowledgment related only to the existence or nonexistence of records, and that the government was to either disclose any officially acknowledged records or establish that the contents are exempt and that exemption had not been waived. Id. It also cited Benavides v. DEA, 968 F.2d 1243, 1248 (D.C. Cir. 1992), for the proposition that “Congress intended to permit the DEA to withhold documents under 7(C) and 7(D), even if the agency must, under subsection (c)(2) acknowledge their existence.” Id. Both Wolf and Benavides therefore recognize that official confirmation does not necessarily negate the application of other exemptions.
Pickard argues that the sentence the government relies on from Pickard “is dicta” and “likely the product of a drafting error.” Opp’n to 2d at 14. The sentence is not dicta—it was central to the court’s ruling both that a Glomar response was
2. Requirements for Official Acknowledgment
As to the required showing for official acknowledgment, the court in Pickard explained:
A fact is deemed “officially acknowledged” only if it meets three criteria: First, the information requested must be as specific as the information previously released. Second, the information requested must match the information previously disclosed; we noted, for example, that official disclosure did not waive the protection to be accorded information that pertained to a later time period. Third, we held that the information requested must already have been made public through an official and documented disclosure.
Pickard, 653 F.3d at 786 (citing Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990)). It is the plaintiffs burden to point to specific information in the public domain that appears to duplicate that being withheld. See Davis v. Dep’t of Justice, 968 F.2d 1276, 1279 (D.C. Cir. 1992) (explaining that the ultimate burden of persuasion rests with the government but that a party who asserts a claim of prior disclosure must bear the initial burden or pointing to specific information). “This is so because the task of proving the negative—that information has not been revealed—might require the government to undertake an exhaustive, potentially limitless search.” Id. at 1279.
There is no question that Pickard has successfully pointed to Skinner’s name, which the government officially acknowledged. See Pickard, 653 F.3d at 784 (“the government officially confirmed Skinner’s status as an informant in open court in the course of official proceedings”). But the Court does not imagine that what Pickard seeks are entire documents with everything redacted but Skinner’s name. Moreover, as discussed below, Exemption 7(D) presents a formidable hurdle to disclosing even Skinner’s name.
In his effort to obtain information Skinner has already disclosed and Skinner’s NADDIS number, Pickard has failed entirely to point to specific information that
Because Pickard has failed to make an adequate showing of official acknowledgment, the Court will proceed to analyzing the claimed exemptions.
B. Threshold Requirement
All of the government’s claimed exemptions in this case arise under Exemption 7, which pertains to documents “compiled for law enforcement purposes.” See generally 2d Mot. for De Novo Review (claiming application of Exemptions 7(D), 7(F), 7(C), and 7(E)); FBI v. Abramson, 456 U.S. 615, 622, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982).
Pickard acknowledges that the government has satisfied the Exemption 7 threshold requbement for all the documents but one: “a letter written by the DEA to the CHP that describes one instance of the DEA intervening on Skinner’s behalf to avoid criminal charges.” Opp’n to 2d Mot. for De Novo Review at 15. Pickard argues that because the government represents that “it is not the practice of DEA to intervene on behalf of any individual to assist them in avoiding criminal prosecution,” then “the letter falls outside DEA’s practices and law enforcement mandate.” Id. (citing Pratt v. Webster, 673 F.2d 408, 420-21 (D.C. Cb. 1982); Taylor v. DOJ, 257 F.Supp.2d 101, 108 (D.D.C. 2003)).
This argument is unpersuasive for two reasons. Fbst, having reviewed the document, the Court observes that it was plausibly compiled for law enforcement purposes. Second, as Pickard is only currently seeking materials that Skinner disclosed, and the only disclosure of this information appears to have come from Skinner’s wife, see Rumold Deck Ex. E at 63, the document is not subject to disclosure in this motion. Accordingly, the government has met the threshold requbement of Exemption 7—that the relevant documents be compiled for law enforcement purposes— and so the Court will turn to the individual claimed exemptions.
C. Exemption 7(D)
The fbst individual exemption the government asserts is Exemption 7(D). Exemption 7(D) allows the government to withhold law enforcement records or information if it “could reasonably be expected to disclose the identity of a confidential source... and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation,.. .information furnished by a confidential source.” 5 U.S.C. § 552(b)(7)(D). The government argues here that “[u]nder the plain language of the statute, Skinner’s name is properly withheld because it would literally disclose the identity of a confidential source, and information Skinner provided is properly withheld, even if he later testified about it, because it would literally disclose information furnished by a confidential source.” 2d Mot. for De Novo Review at 8. The government asserts: “Exemption 7(D) cannot be waived.” Id. Pickard disagrees, arguing that because the government officially confirmed Skinner as a DEA informant, because Skinner testified, and because the government provided documents to Skinner, “continued withholding ... under Exemption 7(D) is improper.” Opp’n to 2d Mot. for De Novo Review at 16. The Court agrees with the government.
1. Ninth Circuit Authority on Exemption 7(D)
Unfortunately, there is no particularly relevant precedent from the Ninth Cbcuit on Exemption 7(D).
Pickard asserts that “In this cbcuit, an informant’s public testimony waives Exemption 7(D)’s protection for all information provided by the informant—even if that information was not disclosed at tri
The government claims that Prudential Locations LLC v. Dept. of Housing & Urban Development, 739 F.3d 424 (9th Cir. 2013), serves as precedent, but that case was primarily about Exemption 6. The Ninth Circuit in Prudential Locations explained that, under Exemption 7(D), “[i]f the individual is a ‘confidential source,’ that is the end of the matter; there is no need to balance the individual’s privacy interest against the public interest in disclosure, as is required under Exemption 6.” 739 F.3d at 434. The government clings to the “end of the matter” language, and also relies on the language from Church of Scientology of Cal. v. Dep’t of Justice, 612 F.2d 417, 426-27 (9th Cir. 1979), stating that Exemption 7(D) must be interpreted according to its “plain meaning.” See 2d Mot. for De Novo Review at 8. While both cases mildly support the government’s position, neither involves a confidential informant who has testified in criminal proceedings and disclosed some information.
2. Out-of-Circuit Authority on Exemption 7(D)
More helpful is authority from other circuits.
The landmark case about Exemption 7(D) is the en banc decision in Irons v. FBI, 880 F.2d 1446 (1st Cir. 1989), which both the government and Pickard rely on in support of their positions. See 2d Mot. for De Novo Review at 8, 10-11; Opp’n to 2d Mot. for De Novo Review at 16-17, 19. Importantly, the court in Irons explicitly did not rule on whether public testimony
Even though Irons did not reach the issue of materials publicly disclosed by an informant, it unambiguously held that Exemption 7(D) cannot be waived, and it provided extensive support for that conclusion. See Irons, 880 F.2d at 1448-49. First, the court noted that neither the plain language of Exemption 7(D) “nor any other relevant language, says anything at all about ‘waiver.’ Other courts (indeed virtually all other courts) have interpreted the statute’s language literally in this respect.” Id. at 1449. The court cited approvingly to Lame, 654 F.2d at 925, which held that “all the information given by a confidential source is exempt,” and that “the subsequent disclosure of information originally given in confidence does not render non-confidential any of the information originally provided.” Id. Second, the court examined the legislative history, concluding that Congress intended “a literal interpretation,” as it intended the exemption “to help law enforcement agencies to recruit, and to maintain, confidential sources; its object was not simply to protect the source, but also to protect the flow of information to the law. enforcement agency.” Id.
Irons did not, as Pickard claims, “[find] that Exemption 7(D) did not apply to (1) the identity of an informant ...; and (2) information that was actually disclosed by the informant in public testimony.” See Opp’n to Mot. for De Novo Review at 17; Moffat v. Dep’t of Justice, 716 F.3d 244, 253 (1st Cir. 2013) (observing that Irons “reserved the question of whether 7(D) continues to apply to the specific information that has already been publically disclosed”). Moreover, given its logic and reasoning, the most plausible reading of Irons is that Exemption 7(D) applies to such information. See Irons, 880 F.2d at 1456 (“exemption 7(D) contains language that, without qualification, exempts from disclosure ‘information furnished by a confidential source.’ ”).
Other courts to actually address the issue of information derived from a confidential source and subsequently publicly disclosed have held that Exemption 7(D) applied.
Pickard tries to steer the Court away from the weight of the authority on this issue with two arguments: one involves trying to distinguish that authority, and the other involves the D.C. Circuit, which has held that official acknowledgment can waive Exemption 7(D).
Pickard first tries to distinguish Ferguson, 957 F.2d 1059, Kiraly, 728 F.2d 273, and Parker, 934 F.2d 375, just three of the cases upon which the government relies. See Opp’n to 2d Mot. for De Novo Review at 18-19. Pickard asserts that in these cases, state governments were eliciting testimony about a federal confidential informant, and that “no informant was ever confirmed by the federal government.” Id. However, courts do not seem to focus on the state/federal dynamic, or on whether it was the informants or the government that revealed the informants’ status. In fact, the Ferguson court explained that “[t]he statutory language does not leave room for a judicial balancing of the equities, or for a determination of whether any harm would result from disallowing an exemption.” Ferguson, 957 F.2d at 1069. By that reasoning, Exemption 7(D) would still cover information disclosed publicly even if doing so seemed meaningless. Further, the Irons court noted that “[t]he words ‘furnished by a confidential source’ do not mean that the information or identity of the source is secret; they simply mean that the information was ‘provided in confidence’ at the time it was communicated to the [DEA].” See Irons, 880 F.2d at 1448. Accordingly, Pickard’s attempt to distinguish some of the relevant authority is unpersuasive.
More significant is Davis, 968 F.2d 1276, which Pickard just briefly mentions. Davis chiefly concerned the burden of proof when the government asserted a number of exemptions, including Exemption 7(D), and the plaintiff claimed that the tapes at issue had already been publicly disclosed at trial. 968 F.2d at 1279. The court noted that the government was willing to give the plaintiff “only exactly what he can find in hard copy,” requiring “the requester to point to ‘specific’ information identical to that being withheld.” Id. at 1280. “It does
The court in Dow Jones & Co., had held that in extraordinary circumstances, “if the exact information given to the FBI has already become public, and the fact that the informant gave the same information to the FBI is also public, there would be no grounds to withhold.” 917 F.2d at 577. However, “[t]he requester will rarely, if ever, have absolutely solid evidence showing that the source of an FBI interview in a law enforcement investigation has manifested complete disregard for confidentiality.” See id. at 577, n.5 (“One can imagine, for instance, a source falsely describing publicly what he or she told the FBI privately.”).
Davis therefore shows the D.C. Circuit recognizing the application of the official acknowledgment doctrine to Exemption 7(D). See also Cobar v. Dep’t of Justice, 81 F.Supp.3d 64, 72 (D.D.C. 2015) (relying on Parker and Irons, holding in Exemption 7(D) context that “for information or a record to lose its protected status based on public disclosure, the information must truly be in the public domain and there must be an exact identity between the publicly disclosed information or document and the information or documents sought under the FOIA.”).
Because this Court finds persuasive the numerous courts to focus on whether information was originally given in confidence, regardless of whether or not that information later becomes public, this Court holds that Exemption 7(D) justifies the withholding of Skinner’s name and the information he has publicly disclosed.
D. Exemptions 7(F) and 7(C)
The next individual exemptions the government asserts for Skinner’s name and the information he has publicly disclosed are Exemptions 7(F) and 7(C). Exemption 7(F) allows the government to, withhold law.enforcement records or information if they “could reasonably be expected to endanger the life or physical safety of any individual.” See 5 U.S.C. § 552(b)(7)(F). Exemption 7(C) allows the government to withhold law enforcement records or information if they “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” See 5 U.S.C. § 552(b)(7)(C). Both of these exemptions require the Court to do a document-by-document review—in the case of 7(F), to determine whether material in one document might endanger Skinner’s life but material in another might not, and in the case of 7(C), to balance the relevant privacy and public interests implicated by material in each document. See Van Bourg v. NLRB, 656 F.2d 1356, 1358 (9th Cir. 1981) (courts are to “state in reasonable detail the reasons for its decision as to each document in dispute”).
Because the Court does not know which portions of which of the documents in the in camera materials are “information Skinner has publicly disclosed,” the Court cannot conduct such a review. The Court is also concerned that Pickard’s request, which would require the government to compile a subset of the in camera documents in a form that is presently unavailable to the general public, is problematic under Department of Justice v. Reporters Committee For Freedom of the Press, 489 U.S. 749, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989).
E. Exemption 7(E)
Finally, the government asserts Exemption 7(E) as the basis for its withholding of Skinner’s NADDIS number. 2d Mot. for De Novo Review at 18-20. Exemption 7(E) allows the government to withhold law enforcement records or infor
The government argues that disclosing Skinner’s NADDIS number would disclose a law enforcement technique, and that the use of NADDIS numbers is not generally known to the public. 2d Mot. for De Novo Review at 19. In support of those assertions, the government relies primarily on their agent’s declaration. Id. The declaration states that NADDIS numbers are a part of the DEA’s procedure; they are “part of the DEA’s system of identifying information and individuals” and are used “within the DEA investigative records system as directed by the DEA Agents Manual.” Tenth Supp. Little Decl. ¶ 17. NADDIS numbers are “assigned to drug violators and suspected drug violators known to DEA and entities that are of investigative interest. Each number is unique and is assigned only to one violator within DEA NADDIS indices.” Id. ¶ 19. They “are assigned by DEA for internal use only” and “relate solely to internal DEA investigative practices and guidelines.” Id ¶ 17. “The precise manner in which NADDIS functions and the manner in which NADDIS numbers are assigned and utilized by DEA is not commonly known to the general public.” Id. ¶ 21.
At the motion hearing, the Court challenged the notion that disclosing a single NADDIS number really “would disclose techniques and procedures.” See 5 U.S.C. § 552(b)(7)(E). Pickard had argued in his briefing that he does not “seek information about how the government uses the NAD-DIS system... only ... the release of a single number.” Opp’n to 2d Mot. for De Novo Review at 25. At first blush, it appeared that the government had disclosed more information about the NADDIS procedures in its declaration in this case than would be disclosed if the government were to simply release Skinner’s NADDIS number to Pickard. But the government argued persuasively that the DEA uses a particular method to assign NADDIS numbers, and that the more NADDIS numbers get out, the more people will be able to discern that methodology. Documents released pursuant to FOIA are released to all of the world; the Court must therefore consider the release of Skinner’s NADDIS number not only to Pickard but to “the general public.” See Lahr v. NTSB, 569 F.3d 964, 977 n.12 (9th Cir. 2009). If Skinner’s number is released, and other numbers are released, then the public might be able to deduce, for example, that the DEA assigns individuals NADDIS numbers starting with 1 if those individu
Pickard argues that a NADDIS number is a technique generally known to the public. See Response to Tentative at 8 (dkt. 237).
On the other hand, there is precedent for withholding NADDIS numbers under Exemption 7(E). In Miller v. Dep’t of Justice, 872 F.Supp.2d 12, 29 (D.D.C. 2012), the court stated that “[b]ecause the NAD-DIS numbers were created for a law enforcement purpose and their disclosure may disclose techniques and procedures for law enforcement investigation, this Court finds that they are properly withheld under Exemption 7(E).” The court also observed that NADDIS numbers “reflect procedures prescribed by the DEA Agents Manual, which according to defendant, identify law enforcement techniques.” Id. at 28-29 (internal quotation marks omitted). Other courts have also so held. See, e.g., Dorsey v. Executive Office for U.S. Attorneys, 83 F.Supp.3d 347, 357 (D.D.C. 2015); Ortiz v. Dep’t of Justice, 67 F.Supp.3d 109, 123 (D.D.C. 2014); Higgins v. Dep’t of Justice, 919 F.Supp.2d 131, 150-51 (D.D.C. 2013).
Because the Court concludes that disclosing Skinner’s NADDIS number would
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS the motion for de novo review, and HOLDS that the government may withhold (1) Skinner’s name and information Skinner has publicly released under Exemption 7(D), and (2) Skinner’s NAD-DIS number under Exemption 7(E).
IT IS SO ORDERED.
. NADDIS stands for the Narcotics and Dangerous Drags Information System, and is a
. That case ultimately vacated the district court’s order and remanded for further proceedings. See Apperson, 642 Fed.Appx. at 893. This Court asked the parties about the District of Kansas/Tenth Circuit litigation at the motion hearing, observing that Pickard might still win access to Skinner’s file in that litigation. But see id. ("Although Defendants’ counsel already had access to an unredacted
. This Court also ordered the government to tell the Court what information within the file Sldnner had publicly disclosed. See Order Requesting Additional Information (dkt. 252). The government requested that the Court make the Exemption 7(D) determination before it participated in the laborious task of combing through testimony. See D Response to Order Requesting Additional Information (dkt. 253) at 1-2. The Court granted the request. See Order Regarding Request for More Information (dkt. 254). Therefore, as previously noted, the Court does not know what material within the documents is presently in dispute.
. Like the parties, this order uses the terms official acknowledgment, official confirmation, and the “public domain doctrine” interchangeably.
. Pickard points to several documents that Skinner released through court filings. See Habeas Exhibits at 33, 37, 42, 45, 50, 57, 74, 85, 90, 94, 99, 102 (dkt. 20-2). However, even if some of those documents are being withheld under 7(D), Skinner's having released government documents does not trigger the public domain doctrine. Pickard asserts that the government gave Skinner these documents, but Pickard has not shown an official disclosure by the government. See Afshar v. Dep't of State, 702 F.2d 1125, 1133 (D.C. Cir. 1983).
. Pickard makes an additional argument that he should be permitted to take discovery in this case before a subsequent round of summary judgment. See Opp’n to 2d Mot. for De Novo Review at 9-12. He argues that “[g]iven the incomplete factual record present here, the Court need not.. .consider the government’s exemption claims.” Id. at 11. The Court denies this request, as Pickard has already unsuccessfully sought discovery in this case, see Order Denying Without Prejudice Plaintiff’s Motion to Lift Stay of Discovery (dkt. 179) at 2 (quoting Lawyers’ Committee for Civil Rights of S.F. Bay Area v. Dep't of the Treasury, 534 F.Supp.2d 1126, 1132 (N.D. Cal. 2008) (“Discovery is usually not permitted in a FOIA case if the government’s affidavits were made in good faith and provide specific detail about the methods used to produce the information.”)). No doubt Pickard would like to use discovery as another means of obtaining the same documents. But “this circuit has affirmed denials of discovery where ... the plaintiff's requests consisted of precisely what defendants maintain is exempt from disclosure to plaintiff pursuant to the FOIA.” Lane v. Dep't of Interior, 523 F.3d 1128, 1135 (9th Cir. 2008) (quoting Pollard v. FBI, 705 F.2d 1151, 1154 (9th Cir. 1983)).
. This is also how the First Circuit interpreted Van Bourg. See Irons v. F.B.I., 880 F.2d 1446, 1455 (1st Cir. 1989) (characterizing Van Bourg as a case about "whether a source, knowing he is likely to testify at the time he furnishes information to the agency, is, or remains after testimony, a 'confidential source’ within the meaning of the statute”) (emphasis added). See also Parker v. Dep't of Justice, 934 F.2d 375, 381 (D.C. Cir. 1991) (finding Van Bourg “inapposite” and noting that it involved civil law enforcement, whereas the second clause of Exemption 7(D) involves criminal law enforcement).
. Pickard suggests that "the government has failed to demonstrate that an adequate 'express' or 'implied' assurance of confidentiality was provided to Skinner,” Opp’n to 2d Mot. for De Novo Review at 17, but this argument fails: it is the law of the case that Sldnner was a confidential informant. Furthermore, the DEA explicitly assured Sldnner confidentiality. See Tenth Supp. Little Decl. ¶ 13; in camera materials.
. This is because the FBI in that case did not contest the plaintiffs request for information revealed by confidential sources at trial. See id. The government has taken a different position here.
. See also Church of Scientology, 612 F.2d at 426 ("paramount concern was the loss of sources of confidential information”).
. In this section, the court criticized the "single district court case” to "hold that actual testimony waives the right to nondisclosure,” an opinion from this district. Irons, 880 F.2d at 1455 (discussing Powell v. Dep’t of Justice, 584 F.Supp. 1508, 1530 (N.D. Cal. 1984)). The court explained that "[t]hat case ... speaks only about the waiver of the right to withhold a source's ‘identity’ once the source has testified; it says nothing about disclosure of the information furnished by the source,” Id It also observed that the Powell court confused the notion of “confidential” with "secret,” "which, as we have noted above ... is not the proper interpretation.” Id. Powell is also distinguishable because it turns on whether "persons who supplied information ... did so under an implied inference of confidentiality.” Powell, 584 F.Supp. at 1529. The court in Powell stated that it would "carefully review the documents to determine the specific circumstances under which the source agreed to testify and [would] then decide whether an implied assurance can reasonably be inferred.” Id. at 1530. Again, in our case, there is no reasonable dispute that Skinner was a confidential informant.
. Pickard cites to Hidalgo v. F.B.I, No. 04-0562 (JR), 2005 WL 6133690, at *2 (D.D.C. Sept. 29, 2005), and Powell, 584 F.Supp. at 1529, to support his argument that official confirmation waives Exemption 7(D). See Opp'n to 2d Mot. for De Novo Review at 16. But Hidalgo involves the use of a Glomar response, not Exemption 7(D). See Hidalgo, No. 04-0562 (JR), 2005 WL 6133690, at *2 (D.D.C. Sept. 29, 2005) (also holding that Exemption 7(D) might be appropriate if the government were to acknowledge the existence of responsive records and sought an appropriate 7(D) exemption using a Vaughn index). As discussed above, Powell, in which a court in this district found that testimony in court waives an informant's right to withhold his identity, is distinguishable. See Powell, 584 F.Supp. at 1529. Pickard also cites to Marino v. DEA, 685 F.3d 1076, 1082 (D.C. Cir. 2012), for the proposition that “a federal prosecutor’s decision to release information [concerning an informant] at trial is enough to trigger the public domain exception,” Opp’n to 2d Mot. for De Novo Review at 18, but that case also involved the propriety of a Glomar response, and not Exemption 7(D). See Marino, 685 F.3d at 1078-79 (DEA issued Glomar response, invoking Exemption 7(C)). That section of Pickard’s brief also cites, without an explanatory parenthetical, Irons, for the proposition that when the government discloses the source’s identity, it cannot subsequently withhold the information in response to a FOIA request. See Opp'n to Mot. for De Novo Review at 18. However the cited pages in Irons include the explanation that "exemption 7(D) contains language that, without qualification, exempts from disclosure ‘information furnished by a confidential source.’ ” Irons, 880 F.2d at 1456.
. The court explained that a source’s testimony might be evidence that there had not been an assurance of confidentiality. Id.
. Documents from the in camera review suggest that Skinner has publicly lied about what he told the DEA.
. That court also stated that a more difficult question was whether official confirmation of a confidential source’s identity required disclosure of information that would identify or tend to identify the source. Id. (emphasis in original). The court relied on Parker in holding that "public disclosure of the identity of a confidential source does not waive Exemption D's applicability.” Id.
.Even if this circuit were to adopt the D.C. Circuit's reasoning and hold that information officially confirmed (as opposed to merely publicly disclosed) cannot be withheld under Exemption 7(D), the Court would conclude that Pickard has not met his burden of demonstrating specific instances of official confirmation—aside from Skinner’s name. See Pickard, 653 F.3d at 786; Mobil Oil Corp. v.
. Reports Committee, 489 U.S. at 764, 109 S.Ct. 1468, recognized that "[p]lainly there is a vast difference between the public records that might be found after a diligent search of courthouse files, county archives, and local police stations throughout the country and a computerized summary located in a single ’ clearinghouse of information.”
. Pickard also argues that Skinner has publicly released his NADDIS number. See id. at 7; Opp’n to 2d Mot. for De Novo Review at 25. The government objects to the authenticity of the number because the DEA did not release it. See D Reply to Tentative (dkt 239) at 8. It appears that Skinner released a number himself, see P Response at 7, and so this is not an official confirmation issue. In any case, this appears to be a red herring: whether or not Skinner’s NADDIS number has been released (or whether Pickard already knows it), see Reply re 2d Mot. for De Novo Review at 25 ("Skinner’s NADDIS number, 2002804, is already publicly available through a number of channels. In fact, it has been in the record of this case for years.”), what matters is whether the investigative technique is generally known, not whether one individual’s number is known.
. See also O’Reilly, Federal Information Disclosure § 17:120 ("Because NADDIS numbers were created for a law enforcement purpose and their disclosure may disclose techniques and procedures for law enforcement investigation, the codes are properly withheld under Exemption 7(E).” (citing Miller, 872 F.Supp.2d 12)).
Reference
- Full Case Name
- William Leonard PICKARD v. DEPARTMENT OF JUSTICE
- Cited By
- 1 case
- Status
- Published