Pickard v. DOJ, No. 17-15945, 706 F. App'x 388 (9th Cir. 2017) (per curiam)
Re: Request for records concerning confidential informant
Disposition: Affirming in part and vacating in part district court's grant of government's motion for summary judgment
- Exemption 7(D): The Court of Appeals for the Ninth Circuit "conclude[s] that the exemption applies and that the information was properly withheld." The court explains that "a senior lawyer for the DEA swore in a declaration that the DEA gives express assurances of confidentiality to its informants in [the informant's] position, and his written agreement confirms that the assurance was given to him." "The fact that the government stated that it could not 'guarantee' that [the informant's] identity would never be divulged merely describes the reality that the future cannot be known, but does not undermine the assurance of confidentiality at the time [the informant] gave information to the DEA."
- Wavier: The Court of Appeals for the Ninth Circuit also holds that it is not the case that "public [acknowledgment of the identity of an informant] [voids] the exemption" because "an agency is not precluded from withholding information pursuant to an exemption that otherwise applies, even if [the identity of an informant] is officially acknowledged or officially confirmed."
- Litigation Considerations: The Court of Appeals for the Ninth Circuit holds that the district court erred in involuntarily dismissing several of the requester's claims because "[t]he mere failure to seek summary judgment on all claims does not mean that a party abandons the remaining claims." "Rather, it means (in the absence of some other indicator of failure to prosecute) simply that the party intends to go to trial on those claims because issues of fact remain."
- Litigation Considerations, Vaughn Index/Declaration: The Court of Appeals for the Ninth Circuit holds that "[t]he most recent Vaughn index gave sufficient detail."
- Litigation Considerations, "Reasonably Segregable" Requirements: The Court of Appeals for the Ninth Circuit holds that "[t]he district court failed to make findings on segregability." "But no such findings were necessary as to the two categories of information that are at issue on appeal, because [the requester] is not legally entitled to any of the information." "Thus there is nothing to segregate."