Pickard v. DOJ, No. 06-00185, 2016 WL 6696038 (N.D. Cal. Nov. 15, 2016) (Breyer, J.)
Re: Request for records concerning confidential informant involved in plaintiff's criminal trial
Disposition: Granting defendant's motion for de novo determination of dispositive matter referred to Magistrate Judge
- Waiver: First, the court holds that "[t]he government is . . . correct that the ruling in this case defeats the argument that official confirmation of [the confidential informant] as a confidential informant merits the disclosure of all of the information [plaintiff] seeks." The court relates that "the Ninth Circuit's holding in this case [was that] . . . : '[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 . . ..'" Responding to plaintiff's arguments, the court finds that "[that] sentence is not dicta – it was central to the court's ruling both that a Glomar response was inappropriate once the government officially confirmed [the confidential informant's] status as a confidential informant, and that the parties were required to return to this Court and litigate the validity of any claimed exemptions." "Nor is there any plausible drafting error."
Second, the court holds that "[plaintiff] has failed to make an adequate showing of official acknowledgment." The court finds that "[t]here is no question that [plaintiff] has successfully pointed to [the confidential informant's] name, which the government officially acknowledged." "But the Court does not imagine that what [plaintiff] seeks are entire documents with everything redacted but [the confidential informant's] name." The court finds that "[plaintiff] has failed entirely to point to specific information that the government is withholding and that matches information previously disclosed."
- Exemption 7, Threshold: The court holds that "the government has met the threshold requirement of Exemption 7 – that the relevant documents be compiled for law enforcement purposes[.]" The court relates that "[plaintiff] acknowledges that the government has satisfied the Exemption 7 threshold requirement for all the documents but one: 'a letter written by the DEA to the CHP that describes one instance of the DEA intervening on [the confidential informant's] behalf to avoid criminal charges.'" The court finds that plaintiff's "argument is unpersuasive for two reasons." "First, having reviewed the document, the Court observes that it was plausibly compiled for law enforcement purposes." "Second, as [plaintiff] is only currently seeking materials that [the confidential informant] disclosed, and the only disclosure of this information appears to have come from [the confidential informant's] wife, . . . the document is not subject to disclosure in this motion."
- Exemption 7(D): "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 [the confidential informant's] name and the information he has publicly disclosed." "The Court agrees with the government" that "'Exemption 7(D) cannot be waived.'"
- Exemptions 7(C) & 7(F): "[R]ather than opine on matters in the abstract, the Court does not reach the parties' arguments as to Exemptions 7(F) or 7(C)." The court relates that "[it] does not know which portions of which of the documents in the in camera materials are 'information [the confidential informant] has publicly disclosed,'" and "is . . . concerned that [plaintiff'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[.]"
- Exemption 7(E): "Because the Court concludes that disclosing [the confidential informant's] NADDIS number would reveal techniques and procedures that are not generally known to the public, the Court holds that withholding is proper under Exemption 7(E)." The court relates that "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 [the confidential informant's] NADDIS number not only to Pickard but to 'the general public.'"