A chemist turned convict sent to the pen in a big LSD bust got the Ninth Circuit U.S. Court of Appeals to side with him in a Freedom of Information Act fight over information about a confidential informant.
A panel on Wednesday, in a case of first impression, defined when a confidential informant is "officially confirmed" and therefore subject to disclosure under the FOIA.
The inmate, William Pickard, made an FOIA request in 2005, asking for all the dirty details -- criminal history, cooperation in other cases, any history of getting in trouble for lying -- of the CI who testified against him.
Despite the informant's identity having been revealed in open court during Pickard's trial, the DOJ denied the records request, refusing to acknowledge the existence of the CI.
"The government basically argues that federal law enforcement agencies should be able to develop a case for the United States Attorney, have their agents and confidential informants testify at trial in open court about the identity and activities of those confidential informants, but then refuse to confirm or deny the existence of records pertaining to that confidential informant," Judge Barry Silverman wrote.
The court, he said, "cannot abide by such an inconsistent and anomalous result."
However, the ruling doesn't mean the feds don't have other grounds on which to deny release of further information on the informant. The court said only that in this case, since the "cat is out of the bag," the government must proceed to the next step of the FOIA request by issuing an index of records. Then it can lodge any further objections to disclosure.
In a concurrence, Senior Judge Clifford Wallace chided the government for its silence on the meaning of "officially confirmed," saying had it promulgated a rule or regulation, the court could have afforded DOJ more deference.
Instead, the court has ruled in a way that could create a conflict between the interests of federal agents and prosecutors regarding an informant's privacy, Wallace wrote. The majority's holding means a prosecutors simple question in open court -- "did you serve as a confidential informant?" -- eliminates the privacy interest.
Wallace also beefs with the the DOJ's position that a press release is the only way to officially confirm a confidential informant. "To the DOJ¹s knowledge, no confidential informant has ever been officially confirmed in this manner. It is difficult to believe that Congress intended [the law] to be effectively inoperative," Wallace wrote.
Kim Zeldin of Liner Grode Stein Yankelevitz Sunshine Regenstreif & Taylor in Sacramento handled the case pro bono for Pickard. San Francisco Assistant U.S. Attorney Neill Tseng argued the case for the Northern District.