FBI to release records on secret informant Ernest Withers

As part of a settlement agreement between the FBI and a Tennessee newspaper, the bureau must release documents and photos that are expected to confirm that famed civil rights photographer Ernest Withers was a confidential informant during the civil rights era. Withers died in 2007.

The (Memphis) Commercial Appeal came to an agreement Monday with the FBI regarding the release of Withers' informant file, ending a two-year legal battle that cost the paper hundreds of thousands of dollars. The newspaper will be able to access parts of 70 investigative files documenting the specific undercover activities Withers was engaged in, and the documents will be released to the paper periodically over the next two years.

The FBI will also have to reimburse the newspaper for $186,000 in legal fees, according to the newspaper's attorney, Charles Tobin.

"This is a big win for the cause of open records and for civil rights in America, for that matter," editor Chris Peck said in a statement. "This settlement and the documents and records that will be released as a result of it clearly will help Americans better understand the complicated role the FBI played in the civil rights era."

The newspaper started pursuing the documents after a reporter discovered that Withers, a photographer with unique access to civil rights leaders, was actually an informant for the FBI. The paper filed Freedom of Information requests with the FBI to access Withers' informant file, but the bureau denied the request under an exemption that protects the identities of confidential informants by excluding their records from FOIA requests.

In response, the newspaper sued the FBI for access to the records in November 2010, and a Washington, D.C. district court judge ruled in February 2012 that the exemption was not applicable because Withers' confidential informant status had already been confirmed in previously released FBI documents.

The FBI released hundreds of documents about Withers but continued to fight the newspaper's efforts to access Withers' full file, according to The Commercial Appeal. Last fall, the newspaper and the FBI began discussing a settlement agreement at the judge's urging.

"It's completely accurate to say that the newspaper forced the FBI to come to the bargaining table and propose solutions to give the newspaper information," Tobin said.

The agreement reached Monday is creative because it allows the newspaper to access the information it seeks through a means that the FBI found acceptable, Tobin said. The records will be released by the National Archives and Records Administration.

"Rather than release the discrete confidential informant file, this agreement allows [the FBI] to say honestly that they did not release the informant file itself but records from files that were copied to other people's files in the investigations at the FBI," Tobin said.

Tobin said he hopes this case will remind the government that it should not oppose the release of records that are in the public interest.

"We would hope they learned the lesson in this case that they shouldn't fight reasonable requests like The Commercial Appeal's," he said. "Whether they actually do that? Only the future can tell."

The FBI declined to comment on the settlement.