FBI FOIA response was official confirmation of informant’s status

The FBI cannot cite an exclusion provision related to confidential informants under the federal Freedom of Information Act regarding a request for records about civil rights era photographer Ernest Withers after the bureau was found to have officially confirmed Withers was an informant through a records release, a federal district court in Washington, D.C. ruled Tuesday.

U.S. District Court Judge Amy Berman Jackson ruled the FBI could not apply the section 552(c)(2) exclusion — which allows law enforcement agencies to protect the identities of confidential informants by treating such records as outside the scope of any processing or response requirements under FOIA — to Withers’ documents because his status as an informant had been “officially confirmed.” The exclusion can no longer be used a basis to refuse to acknowledge the existence of a record if the individual's status as an informant "has been officially confirmed."

Withers was referred to as a “CI” and “Conf. Info.” as well as by the code name “ME 338-R” in FBI documents obtained through related FOIA request disclosures to The Commercial Appeal in Memphis, Tenn.

“A FOIA response is an ‘official’ communication by an agency, made by personnel authorized to make such as disclosure,” the court founds.

The newspaper began investigating the connection between Withers and the FBI in 2008. Withers, who died in 2007, was a noted civil rights era photographer who covered the movement from the Emmitt Till murder trial to Martin Luther King, Jr.’s death, and had frequent access to King and other civil rights leaders. A reporter for the newspaper who was investigating allegations that Withers had been a confidential FBI informant, filed a variety FOIA requests with the FBI related to Withers. The bureau disclosed certain responsive records in a series of releases. Two documents included notations that Withers served as an FBI informant.

The newspaper eventually brought suit maintaining that the FBI was, among other things, improperly withholding additional files about Withers.

The U.S. Department of Justice stated in its argument that the two documents referencing Withers as a “CI” and “Conf. Info.” did not confirm Withers’ status as an informant. The court disagreed.

“This argument is not worthy of serious consideration and it insults the common sense of anyone who reads the documents,” she wrote.

Justice also argued that any alleged disclosure was nonetheless inadvertent and should not constitute an official confirmation. Jackson said the FBI cannot claim the disclosure was accidental because it took no steps to correct the accidental release of information even though it was aware of situation.

“The FBI was placed on notice of the disclosure, at the very latest, on May 22, 2009, when plaintiffs explicitly referred to the documents in amending his appeal, but no one even said ‘oops,’” the court noted.

Though the section 552(c)(2) exclusion no longer applies to the Withers documents, the court said some of the documents may still be exempt from release.

“The Court notes first that a finding that an informant’s status has been confirmed does not necessarily mean that the government will be required to disclose the documents; it has not yet been determined whether some information in the file may be properly protected under a valid FOIA exemption,” she wrote.

The FBI must now submit a Vaughn Index outlining why documents are being withheld by March 16. Charles Miller, a spokesman for the Department of Justice, declined to comment on the court ruling.

David Giles, deputy general counsel for E.W. Scripps Company which owns The Commercial Appeal, said the ruling should encourage news organizations to continue pursuing access to public records. The ruling also justifies the newspaper's publication of the story, he said.

In 2010, the newspaper published a two-part series called “Ernest Withers: Exposed” affirming that Withers was a confidential informant based on documents obtained from the FBI as well as personal papers from William Lawrence, former FBI director of domestic intelligence operations.

“It’s our newspaper — The Commercial Appeal — that believed it was right in publishing what they did,” he said. “They were criticized in many circles for that. It’s vindication.”