The FOIA blog

Update on Ernest Withers FBI Informant FOIA Case

The National Law Journal covered the hearing in the Memphis Commericial Appeal's case against the FBI for informant records pertaining to photographer Ernest Withers who released records have indicated was an FBI informant.  According to the story, United States District Court Judge Amy Berman Jackson wants a top representative from the Department of Justice's Civil Division at the next scheduled hearing in the matter to discuss whether the records meet the law enforcemnt threshhold.  In other words, was the investigation of Dr. Martin Luther King Jr. actually done for law enforcement purposes.

The answer to that has wide implications.  If the records were not created for law enforcement purposes then none of the Exemption 7 subparts can be used to withhold any of the material in the King file.  It is a serious issue and the remarks by Judge Berman Jackson indicate she is taking a long hard look at this, especially in light of the age of the documents and the fact that, in her opinion, the records do not impact any current law enforcement activities.

[Ed. note] I handled the administrative appeal in the case but am not involved in the litigation.

Oops, They Did It Again: FBI Acknowledges Informant Via FOIA

Author Seth Rosenfeld writes about 1960's activist Richard Aoki in the San Fransisco Chronicle and explains how the FBI released information acknowledging that Aoki was considered an informant by the FBI.  According to the article, Aoki was assigned the source symbol number T-2 in a released report.  For those unfamiliar with FBI symbols, this means Aoki was considered a temporary source in that report.  The article goes on to explain that the FBI had no comment on the matter as additional records about Aoki are the source of current litigation.

In an unrelated matter, the FBI recently lost a court fight to withhold infomant records on Ernest Withers, a photographer during the civil rights era.  The FBI had released documents pursuant to a FOIA request that revealed that Withers was an FBI informant on Dr. Martin Luther King, Jr.

Court Finds FBI Confirmed Informant By FOIA Release

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.

On Reconsideration, DEA Found to Have Publicly Revealed Informant

United States District Court Judge for the District of Columbia Colleen Kollar-Kotelly has found, on a reconsideration motion, that the Drug Enforcement Administration (DEA) had named a third party as a DEA informant and therefore, the DEA needed to release information that was released in open court that is in the requested material.  In re-examining the transcripts of the requester's criminal trial, the court additionally found that because the DEA said the individual was an informant in court it could not use the glomar exclusion at Section 552(c)(2) of the FOIA to neither confirm nor deny his informant status.

Friday's Mega FOIA News Roundup

Lots of FOIA items to end the week with, here goes:

My friend Anne Weismann, the Chief Counsel at Citizens for Responsibility and Ethics in Washington ("CREW") writes in the HuffingtonPost about Wikileaks and how, ultimately it will hurt government transparency.

The Coalition for Education Success has sued the Department of Education for documents related to for-profit colleges and the General Accountability Office's report on for profit topics (that the group doesn't like).  The press release can be found here.

The Second Circuit found for the IRS on both its search for responsive documents and its use of exemptions 3, 5 and 7(D) in this FOIA case brought by the children and estate of Mary Adamowicz. 

And finally, UPI.com reports that the names of those SEC employees who diddled away their time watching porn while the economy fell apart should remain out of the public view.