(Excerpted from and annotated from OCR version. See pdf of article here.)

Prisoner Can Use FOIA to Find Out About Snitch

By John Roemer
Daily Journal Staff Writer

A Mill Valley Man [ ] who is serving life without parole in federal prison for producing LSD by the kilo, can force the government to release information on the informant who testified against him, a 9th Circuit Court of Appeals panel held Wednesday.

The decision for the first time spelled out how a confidental informant's status is deemed "officially confirmed" for Freedom of Information Act disclosure purposes. Pickard v. U.S. Department of Justice, 2011DJDAR1176.

"The court confirmed that the goal of FOIA is to make as much information about how the government operates as public as possible," said Jennifer Lynch, a staff attorney as the Electronic Frontier Foundation, a free speech advocacy group that monitored the case.

The panel voted 3-0 to reverse U.S. District Judge Charles R. Breyer of San Francisco. It ordered the government to take the next FOIA procedural step: production of an index of the responsive material it possesses, along with any arguments it cares to make about why specific items may be exempt from FOIA disclosure.

[ ] From behind bars, (William Leonard Pickard) has since sought to to learn from the government the criminal history of his former associate Gordon Todd Skinner, who testified for the prosecution at his trial, and to find out whatever inducements Skinner received.

Drug Enforcement Administration agents stonewalled, submitted a so-called Glomar response in which they refused to confirm or deny Skinner's informant status. The term arose when federal courts OK'd the CIA's refusal to acknowledge its connection to a spy ship named the Hughes Glomar Explorer. Phillipi v. CIA, 546 F.2d 1009 (D.C. Circuit 1976).

Pickard sued and Breyer granted summary judgment to the government, holding Skinner's identify as a confidential informant had not been "officially confirmed" within the meaning of the FOIA statute.

On the contrary, wrote Judge Barry G. Silverman for colleagues J. Clifford Wallace and Richard C. Tallman. At Pickard's crimnal trial, prosecutors elicited testimony from Skinner and from DEA agents regarding Skinner's acts as a confidential informant.

That made it official, the panel held.

"The revelation of Skinner's identity as an informant was not the product of an unofficial leak, nor was it improperly disclosed in an unofficial setting by careless agents," Silverman wrote.

The government's argument that it should be able to withhold on Glomar grounds information about an agent after he has been unmasked in open court cannot prevail, he added. "We cannot abide such an inconsistent and anomalous result."

Kim S. Zeldin, a Liner Grode Stein Yakelevitz Sunshine Regenstreif & Taylor litigation partner who represented Pickard on his appeal, said her client hoped his FOIA request could help his case. "He wanted information to show he had been set up by an informant who was not to be believed, with a view to a further appeal," Zeldin said.

She pointed out that Skinner is also serving a life term for kidnaping and assault with a dangerous weapon. She blasted sentencing laws that gave Pickard a similar sentence for manufacturing drugs. "The justice system doesn't seem fair in that regard," she said.

A spokesman for U.S. Atorney Melnda L. Haag of the Northern District, whose office defended Pickard's appeal, declined to comment.