Pickard

concurring:

In resolving this case, we must apply 5 U.S.C. § 552 (c)(2) to the facts at issue. That section provides:

Id. (emphasis added). In other words, once a confidential informant’s status has been “officially confirmed,” the Drug Enforcement Agency (DEA) cannot merely provide a Glomar response — that is, refuse to acknowledge or deny the existence of the requested records. Boyd v. Criminal Div. of U.S. Dep’t of Justice, 475 F.3d 381, 389 (D.C.Cir.2007).

The specific circumstances pursuant to which an informant’s status is deemed “officially confirmed” is a matter of first impression and great importance. Yet, in resolving this issue, both the prior case law and the legislative history of section 552(c)(2) are of little assistance. It also does not help that the Department of Justice (DOJ) has not promulgated any rule or regulation interpreting this provision. Additionally, while it is true that the plain meaning of statutes govern their interpretation, this principle is not of much assistance here: “official” means “authoritative” or “authorized,” Webster’s Third New Int'l Dictionary 1567 (3d ed. 1986), but this definition begs the question of who is authorized to make a…

*784 OPINION

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…

Kim Zeldin (argued), Liner Grode Stein Yankelevitz Sunshine Regenstreif & Taylor LLP, Sacramento, CA, for the appellant.

Neill Tseng (argued), Assistant United States Attorney, Melinda Haag, United States Attorney, Joann M. Swanson, Chief, Civil Division, United States Attorney's Office, San Francisco, CA, for the appellee.

Before: J. CLIFFORD WALLACE, BARRY G. SILVERMAN, and RICHARD C. TALLMAN, Circuit Judges.

Opinion by Judge SILVERMAN; Concurrence by Judge WALLACE.

SILVERMAN, Circuit Judge:

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…