The FBI has long refused to confirm or deny whether civil rights era photographer Ernest Withers was a confidential informant.
The agency, however, accidentally confirmed Withers’ secret work in documents the government publicly released to a newspaper, a federal judge in Washington said today.
The judge, Amy Berman Jackson of Washington federal district court, ruled today against the U.S. Justice Department in a spat between a newspaper reporter and the FBI over access to the agency’s file on Withers.
Jackson said the FBI can longer exclude processing a newspaper reporter’s public records request about Withers.
Jackson said “Withers’ status as an informant has been officially confirmed.” Jackson ordered the FBI by March 16 to produce an index identifying the specific exemptions the agency is using to justify the continued withholding of documents. The agency had refused to prepare such a list.
Withers, known for his images of the civil rights movement, including photographs of Martin Luther King Jr., died in 2007. A year later, a Memphis-based daily, The Commercial Appeal, began investigating Withers and his connection to the FBI. The paper published a profile of Withers, in September 2010, that noted his work as an informant for federal agents.
The Commercial Appeal, represented by Holland & Knight, sued in Washington in 2010 for access to FBI documents.
Justice Department attorneys Lesley Farby and Wendy Doty of the Civil Division’s federal programs branch were not immediately reached for comment. A DOJ spokesman, Charles Miller, declined to comment on the court's ruling.
An attorney for the newspaper, Charles Tobin, a Holland & Knight entertainment and media law partner in Washington, was not immediately reached for comment.
The FBI had earlier turned over information to the newspaper. But Justice Department lawyers contend that the documents do not confirm Withers’ work as an informant. Justice attorneys said any disclosure from the FBI that revealed Withers’ alleged status as an informant was inadvertent.
Jackson said in her ruling (PDF) that the FBI’s earlier information responses to the newspaper confirmed Withers’ service as an informant. One document said “Ernest Withers, CI” and another document referenced “Conf. Info.”
“The documents that supply that information were not leaked or disclosed by some other agency or a rogue employee—they were transmitted to the plaintiffs” by the FBI in response to a request under the Freedom of Information Act, the judge wrote.
Jackson rejected the FBI’s argument that the references to “CI” and “Conf. Info.” do not signify Withers was an informant. “This argument is not worthy of serious consideration and it insults the common sense of anyone who reads the documents,” Jackson said.
DOJ lawyers said official confirmation of a person’s secret work for the government must be intentional and not flow from an inadvertent release of information.
Official confirmation of a person’s status as an informant, the judge said, doesn’t have to come in the form of a Justice Department press release.
“There certainly was no press conference or public ceremony: as the FBI has emphasized, the agency maintains a strict policy against ever confirming or denying the identities of confidential sources,” Jackson said.
Jackson said the FBI’s claim of an inadvertent disclosure “being advanced here is a day late and a dollar short.” She said the agency first raised the defense well after the government disclosed the information to the newspaper. She called the agency’s claim “belated and tepid.”
The judge, however, cautioned that her ruling in the Withers case “is not meant and does not establish a general principle that inadvertent disclosure will always constitute official confirmation.”