Pickard v. Department of Justice

Filing 227

TENTATIVE RULING ORDERING RELEASE OF DOCUMENTS FOLLOWING IN CAMERA REVIEW. Re: Dkt. No. 198 . Telephonic case management conference set for 1/20/2016 11:00 AM in San Jose. Both parties to file status reports by 1/13/2016. Signed by Judge Nathanael Cousins on 12/24/2015. (lmh, COURT STAFF) (Filed on 12/24/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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WILLIAM LEONARD PICKARD,

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United States District Court
Northern District of California

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Plaintiff,
v.

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DEPARTMENT OF JUSTICE,
Defendant.

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Case No. 06-cv-00185 CRB (NC)
TENTATIVE RULING ORDERING
RELEASE OF DOCUMENTS
FOLLOWING IN CAMERA
REVIEW
Re: Dkt. No. 198

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I.

BACKGROUND
In this Freedom of Information Act case, plaintiff William Leonard Pickard requests

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information about confidential informant Gordon Skinner, who testified against Pickard at

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his criminal trial. Most recently in the case, the district court denied both parties’ fourth

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motions for summary judgment because “without context,” the court could not know if

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releasing 325 relevant documents the government withheld as exempt under FOIA, “would

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compromise an important privacy interest, endanger any individual’s (including Skinner’s)

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physical safety, or run afoul of one of the [government’s] other claimed exemptions.” Dkt.

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No. 198 at 9.

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The question is whether, per Pickard’s request, the Court should release three

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categories of materials in the 325 documents: Skinner’s name, information Skinner has

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voluntarily disclosed to the public, and Skinner’s NADDIS number. Dkt. No. 198 at 11.

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The district court has tasked this Court with conducting in camera review of “whether the
Case No. 06-cv-00185 CRB

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contents, as distinguished from the existence, of the officially confirmed records may be

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protected from disclosure under the DEA’s claimed exemptions.” Id. Because following

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denial of its motion for summary judgment, the government has provided no evidence to

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carry its burden of proving that documents in the three categories of materials qualify for

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exemptions, the Court’s tentative ruling is to order the release of the three categories of

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materials. The government has 14 days to bring forward evidence of why FOIA

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exemptions should apply.

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II.

DISCUSSION
The government argues that the documents are exempt from disclosure under FOIA

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exemptions 7(C), 7(D), 7(E), and 7(F). Dkt. No. 225. However, Judge Breyer has already

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United States District Court
Northern District of California

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held that the government cannot assert a categorical exemption for “[a]ll records relating to

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Skinner” and has rejected the government’s arguments that all 325 documents must be

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withheld. Dkt. No. 198 at 6. Specifically, he found that the government failed to show

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that exemption 7(E) applies to Skinner’s NADDIS number, that release of Skinner’s name

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would be dangerous, or that exemptions should apply to the portions of the DEA file that

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have been made public in United States v. Pickard, 733 F.3d 1297, 1304-05 (10th Cir.

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2013).

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Judge Breyer stated, “the government’s objection to revealing Skinner’s NADDIS

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number seems to rely only on exemption 7(E) . . . It is not clear how release of Skinner’s

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NADDIS number would help Skinner avoid detection or apprehension, as he is already

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incarcerated, or how it would help anyone else avoid detection or apprehension, as the

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number is presumably unique to Skinner. In addition, Plaintiff contends that Skinner’s

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purported NADDIS number is already a matter of public record. See P Reply at 9. If so,

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then it is hard to see how exemption 7(E) applies.” Dkt. No. 198 at 11.

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At summary judgment, the government argued that Pickard had not shown “that the

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use of NADDIS numbers, or the numbers themselves, are commonly known to the public,”

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but Judge Breyer rejected that argument because “it is the government’s burden to

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establish that an exemption applies.” Id. at 10 n. 7 (citing Yonemoto v. Dep’t of Veterans
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Affairs, 686 F.3d 681, 692 (9th Cir. 2012) (agency’s burden to demonstrate that one of the

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statutory exemptions applies)).

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Judge Breyer also observed that disclosure of some documents could be appropriate
because “other court proceedings have resulted in the release of some materials

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presumably among the 325 documents at issue here.” Dkt. No. 198 at 10. In United States

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v. Pickard, No. 00-40104-01, 02-JTM (D. Kan. April 7, 2014), the court found that

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“government interest is sufficient to overcome the presumption in favor of public access to

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judicial records” as to some materials, but unsealed “those portions of the DEA file which

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have been made public,” including (a) Skinner’s criminal felony docket in Tulsa County,

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Oklahoma of July 31, 2006, (b) the Pottawattamie County Kansas order dated August 21,

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United States District Court
Northern District of California

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2000, (c) Skinner’s criminal felony docket for Tulsa County, Oklahoma of March 24,

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2004, (d) Skinner’s eleven-point risk assessment, and (e) Skinner’s confidential source

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agreement form dated October 18, 2000. Dkt. No. 198 at 11. Judge Breyer pointed out

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that “[s]uch disclosures would seem to undermine the government’s position here that

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none of the documents responsive to Plaintiff’s FOIA request can be released.” Id.

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(emphasis in original).

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Since the denial of its motion for summary judgment, the government has supplied

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no evidence to address the deficiencies that Judge Breyer identified. Instead, the

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government simply states, “[t]he government identifies all legal authorities cited in support

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of the government’s arguments in Defendant’s Fourth Motion for Summary Judgment

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(ECF No. 184), in Defendant’s Reply in Support of Fourth Motion for Summary Judgment

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and Opposition to Plaintiff’s Cross Motion for Partial Summary Judgment (ECF No. 189),

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in Defendant’s Objections to Plaintiff’s Reply Evidence (ECF No. 193), in Defendant’s

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Statement of Recent Decision (ECF No. 195), and in Defendant’s Statement of Recent

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Decision (ECF No. 197)” and cites two supplemental cases without identifying facts in this

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case. Dkt. No. 225 at 1-2. In other words, the government reuses and reincorporates its

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arguments for summary judgment which the district court already found unavailing.

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Further, after reviewing the documents in question, the Court does not find that the
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documents provide a reason to withhold under the exemptions. As the district court stated,

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“[w]ithout context, the Court cannot know if releasing [the documents] would compromise

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an important privacy interest, endanger any individual’s (including Skinner’s) physical

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safety, or run afoul of one of the other claimed exemptions.” Dkt. No. 198 at 9 (emphasis

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added). The government’s brief at docket 225 fails to provide any more “context” or

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explain to this Court why release of the documents would be dangerous to Skinner or

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anyone else. Because the government has failed to do anything to bolster the arguments

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that Judge Breyer rejected at summary judgment, this Court’s tentative ruling is to release

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documents in the three categories of materials: Skinner’s name, information Skinner has
voluntarily disclosed to the public, including information released in the federal court

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United States District Court
Northern District of California

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proceedings in Kansas, and Skinner’s NADDIS number. The government has 14 days to

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provide a reason not to release these documents. The parties must attend a telephonic case

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management conference on January 20, 2016, at 11 a.m. in San Jose, with both parties to

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file status reports on next steps proposed by January 13, 2016.

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IT IS SO ORDERED.

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Dated: December 24, 2015

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NATHANAEL M. COUSINS
United States Magistrate Judge

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