Pickard v. Department of Justice

Filing 243

ORDER TO RELEASE DOCUMENTS FOLLOWING IN CAMERA REVIEW. Re: Dkt. No. 227 . Signed by Judge Nathanael Cousins on 5/2/2016. (lhS, COURT STAFF) (Filed on 5/2/2016)

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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,

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v.
DEPARTMENT OF JUSTICE,
Defendant.

Case No. 06-cv-00185 CRB (NC)
ORDER TO RELEASE
DOCUMENTS FOLLOWING IN
CAMERA REVIEW
Re: Dkt. No. 227

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

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

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his criminal trial. The district court denied both parties’ fourth motions for summary

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judgment because “without context,” the court could not know if releasing 325 relevant

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documents the government withheld as exempt under FOIA, “would compromise an

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

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or run afoul of one of the [government’s] other claimed exemptions.” Dkt. No. 198 at 9.

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The question before this Court is whether, per Pickard’s request, the Court should

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release three categories of materials in the 325 documents: (1) Skinner’s name, (2)

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information Skinner has voluntarily disclosed to the public, including information he

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offered in the federal court proceedings in Kansas, and (3) Skinner’s Narcotics and

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Dangerous Drugs Information System (NADDIS) number. Dkt. No. 198 at 11. The Court

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has conducted in camera review of “whether the contents, as distinguished from the
Case No. 06-cv-00185 CRB

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existence, of the officially confirmed records may be protected from disclosure under the

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DEA’s claimed exemptions.” Id. (emphasis in original). The Court tentatively ordered the

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release of the three categories of materials because, following denial of its motion for

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summary judgment, the government provided no evidence to carry its burden of proving

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that documents in the three categories of materials qualify for exemptions. Dkt. No. 227.

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The government has responded to the Court’s tentative order. Dkt. No. 239. The
government argues, as it has before, that release of the documents would “disclose the

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identity of, and information furnished by, a confidential source; have a chilling effect on

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confidential informants; risk circumvention of the law; endanger Skinner’s physical safety;

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and violate a strong and substantial privacy interest.” Id. at 6. Pickard’s reply argues that

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United States District Court
Northern District of California

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the government’s objections are overly broad and that “[u]nder the specific facts of this

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case, the information at issue can and should be public.” Dkt. No. 242 at 6.

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When seeking an exemption from FOIA, the government may not offer only

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general governmental interests that are present in virtually all cases. When a FOIA request

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is made, a governmental agency may withhold all or portions of a document “only if the

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material at issue falls within one of the nine statutory exemptions found in § 522(b).”

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Maricopa Audubon Soc. v. U.S. Forest Serv., 108 F.3d 1082, 1085 (9th Cir. 1997). The

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exemptions “‘must be narrowly construed’ in light of FOIA’s ‘dominant objective’ of

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‘disclosure, not secrecy.’” Id. (quoting Department of the Air Force v. Rose, 425 U.S. 352,

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361 (1976)). “FOIA’s strong presumption in favor of disclosure means that an agency that

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invokes one of the statutory exemptions . . . bears the burden of demonstrating that the

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exemption properly applies to the documents.” Yonemoto v. Dep’t of Veterans Affairs, 686

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F.3d 681, 692 (9th Cir. 2012). “Boilerplate explanations for withholdings . . . are

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improper, and efforts must be ‘made to tailor the explanation to the specific document

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withheld.’” Muchnick v. Dep’t of Homeland Sec., 15-cv-3060 CRB, 2016 WL 730291, at

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*3 (N.D. Cal. Feb. 24, 2016) (quoting Wiener v. F.B.I., 943 F.2d 972, 979 (9th Cir. 1991)).

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Both parties reference the recent opinion in United States v. Apperson, 2016 WL
898885, at *7 (10th Cir. Mar. 9, 2016), vacating a district court’s order and remanding
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because the district court failed to provide an adequate explanation of its reasoning in

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denying the defendants’ motion to unseal Skinner’s confidential informant file. Apperson

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addressed a sealing order, which applies a different standard than a FOIA request.

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However, the case is relevant because the record in Apperson suggested that the

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government lacked case-specific reasons for its request to seal. The Tenth Circuit stated,

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“the record does not adequately reflect the court’s balancing—with respect to particular

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documents or categories of documents—of the specific interests of the public and the

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government (the party opposing disclosure) relative to the factual circumstances of this

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case. Instead, the court relied on the government’s general interests regarding
confidentiality, a potential ‘chilling effect,’ and the need for law enforcement to secure the

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United States District Court
Northern District of California

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cooperation of other confidential sources in the future.” Id.

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The court noted that “[t]hough these matters are unquestionably, in principle,

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legitimate governmental interests, they are likely to be present to some degree in virtually

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every case where a member of the public seeks access to law-enforcement informant files.

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Therefore, lest the common-law presumption of access be rendered a dead letter as to this

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class of cases, courts cannot justify denying disclosure by endorsing such generalized

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governmental interests. They must analyze the government’s interests in the context of the

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specific case—with respect to particular documents or categories of documents—and

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explicitly undergird their conclusions with fact-specific analysis.” Id.

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Here, the government’s brief responding to the Court’s tentative order is not

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sufficiently tailored to the case at hand. Because the government did not provide reasons

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tailored to this case not to release the documents, the Court’s tentative view remains

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unchanged. Therefore, the Court orders the release of documents in the three categories:

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(1) Skinner’s name, (2) information Skinner has voluntarily disclosed to the public,

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including information he offered in the federal court proceedings in Kansas, and (3)

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Skinner’s NADDIS number. The parties have until May 16, 2016, to confer with each

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other about what information Skinner has voluntarily disclosed and is therefore subject to

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release if it is stated in the government files. The government has until May 30, 2016, to
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produce the documents to Pickard and to file a status report stating its compliance with this

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order. The government may redact any part of the 325 documents that is not responsive to

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this order. Either party may object to this order within fourteen days. Fed. R. Civ. P.

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72(b).

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IT IS SO ORDERED.

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Dated: May 2, 2016

_____________________________________
NATHANAEL M. COUSINS
United States Magistrate Judge

Case No. 06-cv-00185 CRB

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United States District Court
Northern District of California

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