United States District Court Judge Amy Jackson Berman for the District of Columbia has ruled that the FBI has officially confirmed that photographer Ernest Withers was an FBI informant through its releases of information pursuant to a FOIA request on Withers. The Blog of the Legal Times has more here including a copy of the opinion.
Reporter Marc Perrusquia made a request to the FBI for the records on Withers following his death. Withers had been a photographer with access to the Martin Luther King Jr. The FBI made an initial request of information that included a confidential informant number for Withers -- however the FBI refused to provide the informant file it maintained on Withers -- and continued to attempt to say that they had not confirmed that he was an informant [Ed. note -- I filed the appeal to the FBI for Perrusquia, but am not involved in the litigation].
The Court ruled that the c(2) exclusion is not appropriate in this case because the FBI has confirmed Withers as an informant. The opinion is interesting in that the FBI changed its course on judicial oversight of exclusions in mid-course -- this is likely to be related to the 9th Circuit case in which the judge accused the FBI of lying to him over the existence of records and the plaintiffs were eventually granted sanctions. According to this opinion, the FBI had originally stated that the Courts had no say over their use of exclusions, but have now changed that position and they will allow judicial oversight.
Regardless of the FBI's position on exclusions, the opinion finds that an exclusion doesn't apply because the FBI has confirmed that Withers was an informant and the FBI must know process the records they have on him as an informant and provide a Vaughn index for those records they won't release. The FBI made a number of arguments as to why they didn't really confirm him as an informant but the Court took great pains to explain how, yes, the FBI did confirm it. Humorously, one of the reasons given by the FBI was that the daughter of Mr. Withers does not believe he was an informant.
The case now awaits further processing by the FBI as ordered by the Court.