April/May/June 2012

Judge Finds That FBI in FOIA Case 'Officially Confirmed' Identity of Civil Rights Informant

Holland & Knight Newsletter
Christine N. Walz

In a significant victory for the cause of government transparency, a Washington, D.C., federal judge has ruled that the FBI must produce a full accounting of noted civil rights photographer Ernest Withers’ file as a confidential informant. This ruling, in Memphis Publishing Company v. Federal Bureau of Investigation, comes in response to the FBI’s consistent denials that it had any obligation under the Freedom of Information Act (FOIA) to acknowledge that Withers had been an informant.

The Commercial Appeal newspaper and its reporter Marc Perrusquia have spent years chasing down rumors of Withers’ relationship with the FBI. Withers was the most well-known photographer from the era, creating some of the iconic images of the civil rights movement through the trust and unparalleled access the leadership gave him. After Withers died in 2007, the Commercial Appeal filed a FOIA request for Withers’ FBI file. Documents the FBI released in response to this request showed that Withers had served as an FBI informant using the confidential informant number ME-338-R. The “R” designation belonged to the category of “racial informants” recruited by the FBI to monitor civil rights organizers.

Despite the release of this information, the FBI continued to refuse to admit the existence of an informant file ? or even that Withers was an informant ? relying on a seldom-invoked exception to FOIA, 5 U.S.C. §552(c), which allows the agency to shield information about informants when an FOIA request asks about the informant by name. The statute was enacted in 1986 as part of President Ronald Reagan’s war on drugs policy, with a legislative history making clear the FBI and Department of Justice were concerned with organized crime bosses using FOIA to root out informants in their midst. The statute provides that the FOIA exception is not available, however, when an informant’s status has been “officially confirmed.”

When the FBI continued to hide Withers’ role in responding to the newspaper’s summary judgment motion, the newspaper filed a motion to compel the FBI to provide a Vaughn index of Withers’ file. The newspaper argued that the FBI’s previous releases had “officially confirmed” Withers’ work for the bureau. Because of that confirmation, the newspaper asserted, the FBI had to follow ordinary FOIA procedure by listing all documents it wanted to withhold, with citations to specific FOIA exemptions.

In her January 31, 2012, ruling, U.S. District Court Judge Amy Berman Jackson in Washington, D.C., agreed with the newspaper and said that the FBI could not continue to deny that Withers was an informant. The court rejected the FBI’s claims that the records released did not on their face disclose Withers’ work for the FBI, holding, “This argument is not worthy of serious consideration and it insults the common sense of anyone who reads the documents.” The court also dismissed the agency’s claims that the documents had been inadvertently released, finding that documents had not been “leaked or disclosed by some other agency or a rogue employee” and that the “claim of inadvertence being advanced here is a day late and a dollar short.”

In addition to being the first public finding that Withers was an informant, the court’s ruling requires the FBI to produce a full index of records in his informant file. This index is expected to provide insight into the extent of the relationship between Withers and the FBI. With this ruling, the newspaper will be better positioned to press the FBI for full access to the file’s contents.

Holland & Knight represents the Commercial Appeal and its reporter Marc Perrusquia.

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