Updated 12:07 p.m.
The Justice Department finds itself in a bind in a public records dispute in Washington over a photographer's reported work as a confidential informant during the civil rights era.
A Washington federal trial judge in late January ordered the government to produce information in response to a demand for records from the Memphis daily The Commercial Appeal.
The problem is, DOJ lawyers said Friday in a court filing (PDF), the index of records that the government was ordered to disclose would reveal whether Ernest Withers was an informant.
DOJ contends the government has not officially confirmed whether Withers secretly worked for the government.
U.S. District Judge Amy Berman Jackson’s decision in January concluded that the FBI, in earlier responses to the newspaper’s records request, confirmed that Withers was, in fact, an informant.
DOJ lawyers said any prior document release from the FBI was not an official confirmation of Withers’ secret work for the authorities.
The government on Friday asked Jackson to stay her January 31 order for 60 days to allow DOJ to decide whether to appeal the decision. Any challenge in the U.S. Court of Appeals for the D.C. Circuit would likely examine the definition of “official confirmation” in the public records context.
“This case involves important, complicated issues that require consultation and coordination among several interested government agency components,” DOJ trial attorney Lesley Farby, said in court papers.
Lawyers for The Commercial Appeal, represented by Holland & Knight, are opposed to any stay of Jackson’s order.