The U.S. Justice Department has agreed in principle to settle a public records dispute with a newspaper that is seeking access to FBI information about the work acclaimed civil rights era photographer Ernest Withers performed as a confidential informant.
DOJ lawyers and attorneys for Memphis Publishing Co., the owner of The Commercial Appeal newspaper, announced the tentative deal Wednesday night in a status report filed in Washington's federal trial court. The attorneys in the case said they're working to finalize the agreement.
"The process underscores the public's right to know more about this troubling time in our government's history," Holland & Knight partner Charles "Chuck" Tobin, the attorney for the newspaper, said in a statement. "We have no comment on the details of the settlement until the agreement is signed."
The Commercial Appeal in November 2010 sued the FBI over access to information about Withers, whose service as an FBI informant has been documented in articles in that newspaper.
The FBI fought over the records, saying, initially, that the agency would neither confirm nor deny Withers' clandestine work. The agency also refused to confirm or deny any "Withers informant file."
U.S. District Judge Amy Berman Jackson in January ruled in large part against the FBI's push for continued secrecy. The judge ordered the FBI to produce an index of records about Withers. At the time, the judge did not order the FBI to produce the file itself.
Jackson determined that the FBI had itself confirmed Withers' service as an informant during the civil rights era. That information was contained in information that was earlier provided to The Commercial Appeal, the judge concluded. The judge refused to reconsider her decision.
DOJ lawyers filed a notice in the U.S. Court of Appeals for the D.C. Circuit indicating the department might challenge Jackson's decision. In the appeals court, the action was on hold as the lawyers for both sides worked on a settlement.
Government lawyers said in court papers that the FBI never officially disclosed Withers' status as an informant. The government argued, unsuccessfully in the trial court, that an inadvertent disclosure does not amount to official confirmation.