July 21, 2019

Tenth Circuit: District Court Erred in Manner It Denied Defendants’ Motion to Unseal DEA File

The Tenth Circuit Court of Appeals published its opinion in United States v. Pickard on Tuesday, November 5, 2013.

In 2003, a jury convicted Defendants of several drug offenses. At the trial, one of Defendants’ accomplices, Gordon Skinner, testified against them. Skinner acted as a confidential informant for the DEA during when he was involved with Defendants in their criminal conduct. During the trial, the court ordered the Government to turn that file over to the defense. At the same time, the court ordered the DEA file sealed. Eight years later, Defendants filed a motion to have the DEA file on Skinner unsealed so they could use this information in ongoing litigation under the Freedom of Information Act (FOIA). The district court denied Defendants’ motion to unseal the DEA records. Defendants appealed.

The Tenth Circuit concluded the district court erred in the manner in which it denied Defendants’ motion to unseal the file, for three reasons: The court (1) failed to require the United States to articulate a significant interest in continuing to keep the DEA records sealed; (2) did not apply the presumption that judicial records should be open to the public; and (3) did not consider whether unsealing a redacted version of the DEA records would adequately serve the as yet unarticulated government interest in keeping the records sealed. Courts have long recognized a common-law right of access to judicial records.

For these reasons, the court REVERSED the district court’s decision to deny Defendants’ motion to unseal the records and REMANDED for the district court’s further consideration of that motion.

Tenth Circuit: Government Properly Withheld Six Mug Shots from Newspaper under Exception to FOIA

The Tenth Circuit Court of Appeals published its opinion in World Publishing Co. v. United States Dep’t of Justice on Wednesday, February 22, 2012.

The Tenth Circuit affirmed the district court’s decision. Petitioner is publisher of the Tulsa World newspaper and appeals from the district court’s judgment that Respondents properly withheld six booking photographs (mug shots) requested by Tulsa World. Tulsa World requested the photos under the Freedom of Information Act (FOIA), and the government relied upon Exemption 7(C) to withhold them. On appeal, Tulsa World argues that the district court erred in granting the government’s motion for summary judgment and denying it discovery so that it might better respond to that motion.

“Congress enacted the FOIA to ‘open agency action to the light of public scrutiny.’ There are certain instances, however, when Congress has deemed disclosure inappropriate; these exceptions are covered by 5 U.S.C. § 552(b). The government bears the burden of demonstrating that the request falls into one of the enumerated exceptions, and we construe narrowly in favor of disclosure.” A three-part test has is generally followed to determine if information is covered by Exemption 7(C): “A court must (1) determine if the information was gathered for a law enforcement purpose; (2) determine whether there is a personal privacy interest at stake; and if there is (3) balance the privacy interest against the public interest in disclosure.” It is undisputed that the photos were taken for a law enforcement purpose. The Court, however, determined that “a booking photo is intended for use only by a specific and small group of people,” which provides reason for a court to protect an individual’s privacy interest in that photo. Also, while the paper suggests that several public interests will be furthered by disclosing the photos, the Court found that Tulsa World’s request would not further the purpose of the FOIA. Lastly, the district court did not abuse its discretion by denying discovery.

Tenth Circuit: Pension Plan Records Properly Withheld under FOIA; Consent of Company Required for IRS to Release

The Tenth Circuit Court of Appeals issued its opinion in Hull v. IRS on Wednesday, August 31, 2011.

The Tenth Circuit affirmed the district court’s decision. Petitioners are retired employees of US West, Inc. and participants in the US West Pension Plan. According to Plaintiffs’ 2008 Freedom of Information Act (FOIA) request, US West made a submission to the IRS under the Voluntary Compliance Review Program (VCRP) for access to records in which “the company fully described [a problem with some of its payments to US West Pension Plan participants] and requested IRS grant approval to make adjusted pension payments,” which the IRS did. The IRS informed Petitioners that their FOIA request for the pension plan records was a request for “tax records,” which “are confidential and may not be disclosed unless specifically authorized by law.” The IRS would require US West Pension Plan’s written consent before they could consider releasing the information. Petitioners appeal the district court’s decision that upheld the IRS’s determination.

The Court held that the IRS properly withheld the requested information. The IRS “succeeded in carrying its burden of proving that [Petitioners’] FOIA request . . .  only sought US West’s return information to which [Petitioners] are not entitled without US West’s consent. Because [Petitioners] have not provided that consent, the IRS properly withheld the requested information.”