Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding D.C. No.06-CV-00185-CRB
The opinion of the court was delivered by: Silverman, Circuit Judge:
Argued and Submitted January 13, 2011-San Francisco, California
Before: J. Clifford Wallace, Barry G. Silverman, and Richard C. Tallman, Circuit Judges.
Opinion by Judge Silverman;
Concurrence by Judge Wallace
William Leonard Pickard, an inmate at the Federal Correctional Institution in Victorville, California, seeks enforcement of his Freedom of Information Act request to the Drug Enforcement Administration for records pertaining to confidential informant Gordon Todd Skinner. In response to Pickard's FOIA request, the DEA submitted a Glomar response refusing to confirm or deny the existence of any responsive records pertaining to Skinner, citing exemptions 6 and 7(C), (D) and (F) of the Act. Pickard argues that the government is prohibited from submitting a Glomar response because Skinner has already been "officially confirmed" as a confidential informant in conformity with 5 U.S.C. § 552(c)(2), and that the government now should move on to the next step and produce a Vaughn index.
We hold today that because the government officially confirmed Skinner's status as an informant in open court in the course of official proceedings, the government cannot continue to "neither admit nor deny" Skinner's informant status in response to a FOIA request. This is not to say that all documents related to Skinner are subject to disclosure. We simply hold that since Skinner has already been officially identified as an informant by government counsel and agents, the cat is out of the bag and the government must proceed to the next step - provide an index of the documents it has and make whatever additional objections to disclosure it deems appropriate.
On January 25, 2005, Pickard submitted a request to the DEA, an agency that is part of the United States Department of Justice, for "information and documents pertaining to DEA informant Skinner." Pickard specifically sought any information on Skinner's criminal history (including records of arrests, convictions, warrants, or other pending cases), records of all case names, numbers, and judicial districts where he testified under oath, records of all monies paid in his capacity as a federal government informant, all records of instances where the DEA intervened on his behalf to assist him in avoiding criminal prosecution, all records of administrative sanctions imposed for dishonesty, false claims, or other deceit, all records of any benefits of any nature conferred, all records of deactivation as a confidential informant and the reasons for deactivation, and all records concerning Skinner's participation in criminal investigations.
On February 11, 2005, the DEA denied Pickard's request. Citing FOIA Exemptions 6 and 7(C), and without confirming or denying the existence of any records relating to Skinner, the DEA advised Pickard that he would have to provide either proof of death or a privacy waiver from Skinner before any information would be released. Pickard appealed to the Office of Information and Privacy. The OIP upheld the DEA's response, and Pickard filed a complaint in the district court to enforce his FOIA request.
After the district court reviewed the complaint and ordered it served, the DEA moved for summary judgment arguing that the Privacy Act, 5 U.S.C. § 552a, subsections (j)(2) and (k)(2), and FOIA exemptions 6 and 7(C), (D) and (F), applied to Pickard's request. The district court denied the motion without prejudice, noting that the DEA had not adequately justified its response to the request. The DEA again moved for summary judgment, this time fully briefing why a Glomar response,*fn1 the practice of refusing to confirm or deny the ...