The FBI must produce an index of agency records about a civil rights era photographer who reportedly served as a confidential informant for the government, a federal judge in Washington ruled today.
The judge, Amy Berman Jackson of U.S. District Court for the District of Columbia, refused a request from the Justice Department to reconsider an earlier decision that ordered the FBI to produce those records about the photographer, Ernest Withers. Jackson's opinion is here.
Jackson’s ruling in January did not compel the FBI to disclose its entire file on Withers, an acclaimed photographer who died in 2007. Instead, Jackson told the bureau to produce an index of records to the The Commercial Appeal newspaper in Memphis. DOJ has not yet complied with that request.
The Justice Department said production of the index would reveal whether or not Withers was a confidential informant. DOJ maintains the FBI has not officially confirmed that Withers worked in a secret capacity for law enforcement.
The FBI, Jackson said, already confirmed that Withers was an informant. That information was provided by the FBI to the Memphis newspaper, the judge said, through a public records request.
Jackson said in the ruling today that she assumes the initial FBI disclosures of Withers’ status “were the result of human error on the part of one or more of the trained FBI professionals” who process public records requests.
But the judge said “any inadvertence at the outset” must be weighed against the government’s decision not to try to get back the information it provided to the Memphis newspaper and the government’s decision to attach the material to publicly filed court papers.
“The court notes that there has been no allegation that its ruling could subject any living person to any danger of physical harm,” Jackson said. Any concern about harm or humiliation, the judge said, doesn’t apply in the case of an individual who has died.
Justice Department lawyers said in recent court papers the government may decide to challenge on appeal Jackson’s decision ordering the production of a records index.
Any appeal would focus on the definition of “official confirmation” in the public records context. DOJ did not immediately file any appellate notice.
A lawyer for The Commercial Appeal, Charles Tobin, a Holland & Knight partner in Washington, said this afternoon: "We are obvious hopeful the FBI will take a different view now that the judge has made clear that this is not one of those rare cases that continued secrecy is not warranted."
Tobin said there is a "historical public interest" in the scope of Withers' work as an informant. "We want to see the records and be able to tell the full story," he said.
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