Memphis Publishing Company v. Federal Bureau of Investigation , 879 F. Supp. 2d 1 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
MEMPHIS PUBLISHING )
COMPANY, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 10-1878 (ABJ)
)
FEDERAL BUREAU OF )
INVESTIGATION, )
)
Defendant. )
____________________________________)
MEMORANDUM OPINION
This case involves Freedom of Information Act requests made by plaintiff Marc
Perrusquia, a reporter for the newspaper The Commercial Appeal, owned by plaintiff Memphis
Publishing Company, for all Federal Bureau of Investigation (“FBI”) records concerning Ernest
Withers, a noted photographer of the civil rights movement. Withers is now deceased, but his
lens memorialized many of the defining moments of the 1960s. Plaintiffs allege that while
Withers was enjoying unique access to Dr. Martin Luther King, Jr., and other civil rights leaders,
he was simultaneously serving as a conduit of confidential information to the FBI. Pursuant to
the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (2010), plaintiffs have requested, and
they allege that the FBI has improperly withheld, what plaintiffs refer to as the “Withers
informant file.” The FBI maintains that it has neither confirmed nor denied the existence of such
a file, and that its FOIA production is complete. See, e.g., Argall Decl. ¶ 38. Currently before
the Court are plaintiffs’ motion to compel the production of a Vaughn Index [Dkt. # 18] and the
parties’ cross motions for summary judgment [Dkt. # 9 and # 14].
The issue before the Court is not whether an informant file on Withers exists or whether
the FBI must produce its contents. Rather, the question the Court has undertaken to resolve first
is whether the statutory exclusion for informant records contained in 5 U.S.C. § 552(c)(2) would
apply if there were a file, and whether the FBI would be bound to acknowledge the existence of
the file and comply with the FOIA mandate to either produce it or justify any withholding of its
contents under specific exemptions. For the reasons stated below, the Court finds that if the FBI
has relied on section 552(c)(2) to exclude any documents from FOIA processing, it may no
longer do so, because Withers’ status as an informant has been officially confirmed.
Accordingly, the Court will grant plaintiffs’ motion to compel the production of the Vaughn
Index and deny the cross motions for summary judgment without prejudice to the filing of
updated dispositive motions at a later point in this litigation. The motion to compel the FBI to
produce the materials for in camera review is similarly denied without prejudice.
I. BACKGROUND
A. Factual Background
Ernest Withers was a photographer who chronicled the civil rights movement in the
1960s. His famous photographs include an image of Dr. King riding one of the first
desegregated buses in Montgomery, Alabama, and a picture of black sanitation workers carrying
signs declaring “I Am a Man” at a protest in Memphis. See Ex. A to Pls.’ Mot. Summ. J. The
complaint alleges that Withers used his camera to create what have become iconic images of the
struggle for equality, and that as he bore witness to historic public events, he also came to be
welcome at behind-the-scenes gatherings, gaining unprecedented access to the leaders of the
civil rights movement and their plans. Compl. ¶¶ 2–3. He died on October 15, 2007, at the age
of eighty-five. Perrusquia Decl. ¶ 3.
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In 2008, The Commercial Appeal, a Memphis-based daily newspaper, began
investigating Withers and his rumored role as a FBI informant. Perrusquia Decl. ¶ 2. The
reporter decided to pursue the story after Withers’ death, believing that “once the subject of FBI
records dies, the government will more readily release information about them to the public.” Id.
¶ 3. The paper’s interest in Withers grew out of a larger inquiry into the history of the FBI’s
surveillance of the civil rights movement forty years ago. Compl. ¶ 3. Plaintiffs submit that
“[t]he country continues to examine whether the government’s surveillance of civil rights leaders
reflected a genuine concern for public safety or, instead, an effort to harass citizens and squelch
protest.” Compl. ¶ 5; see also Pls.’ St. of Mat. Fact (“SMF”) ¶ 2. They state that they sought all
documents related to Withers because the materials would “further the public’s understanding of
this unresolved issue” as well as “inform the ongoing debate about whether the government has
gone too far in current domestic surveillance operations.” Compl. ¶ 5.
Perrusquia filed a FOIA request with FBI headquarters on February 12, 2008, requesting
all documents related to “Third party – Ernest Withers.” Argall Decl. ¶ 5; Ex. A to Def.’s Cross
Mot. Summ. J. The request alleged that Mr. Withers “doubled as an FBI informant.” Argall
Decl. ¶ 5. On July 31, 2008, the FBI responded that it had no responsive records at the
headquarters, and it advised Perrusquia that he should submit a separate FOIA request to the
field office where he believed responsive records would be maintained. Argall Decl. ¶ 8; Ex. D
to Def.’s Cross Mot. Summ. J.
On September 2, 2008, Perrusquia submitted a second FOIA request to the FBI’s
Memphis Field Office for “all FBI documents involving Mr. Withers.” Argall Decl. ¶ 9; Ex. E to
Def.’s Cross Mot. Summ. J. Perrusquia noted in this request that Withers had died on October
15, 2007. Argall Decl. ¶ 9. The FBI responded on March 12, 2009, and released 115 pages of
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records with certain information exempted pursuant to Exemptions 2, 6, 7(C), and 7(D). Argall
Decl. ¶ 12; Ex. H to Def.’s Cross Mot. Summ. J. 1 Four documents were withheld in their
entirety and two pages were withheld as duplicates. Argall Decl. ¶ 12.
Perrusquia submitted an appeal to the Office of Information Policy (“OIP”) at the
Department of Justice on May 5, 2009. Argall Decl. ¶ 13; Ex. I to Def.’s Cross Mot. Summ. J.
On May 22, the appeal was amended “to make it clear” that it included a request for the
confidential informant (“CI”) file the reporter understood to be in the FBI’s possession. Ex. J to
Def.’s Cross Mot. Summ. J. Citing documents that the FBI had already produced, Perrusquia
asked for “a copy of Mr. Withers’ 170 file connected to his status as a CI,” and he stated that
Withers “was a CI formerly designated as ME 338-R.” Argall Decl. ¶ 14 (internal quotation
marks omitted); Ex. J to Def.’s Cross Mot. Summ. J. The appeal was amended for a second time
on July 7, 2009, to include any photographs in FBI files taken by Mr. Withers. Argall Decl.
¶ 16; Ex. L to Def.’s Cross Mot. Summ. J.
OIP informed Perrusquia on July 14, 2009, that the FBI had agreed to conduct a further
search for responsive records at its headquarters and field offices, and any additional responsive
records that were located would be provided to plaintiffs. Argall Decl. ¶ 17; Ex. M to Def.’s
Cross Mot. Summ. J. On March 8, 2010, the FBI released additional records concerning Mr.
Withers. Argall Decl. ¶ 22. Perrusquia was advised that 369 pages of records had been reviewed
and 254 pages of records were being released with certain information exempted pursuant to
Exemptions 2, 3, 6, 7(C), 7(D), and 7(E). Id.; Ex. R to Def.’s Cross Mot. Summ. J. The FBI
1 The FBI’s responses to the FOIA requests were on official FBI letterhead and signed by
David M. Hardy, Section Chief, Record/Information Dissemination Section, Records
Management Division. Ex. D and Ex. H to Def.’s Cross Mot. Summ. J.
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withheld five pages in their entirety pursuant to Exemption 7(E) and withheld the remaining 110
pages as duplicates. Argall Decl. ¶ 22.
Perrusquia appealed the March 8, 2010 release of documents to OIP on April 21, 2010,
on three grounds: (1) improper withholding of material; (2) inadequate search for records; and
(3) failure to grant a fee waiver. Id. ¶ 24; Ex. T to Def.’s Cross Mot. Summ. J. On August 31,
2010, OIP affirmed the FBI’s response, finding that the FBI properly withheld information
pursuant to the claimed FOIA exemptions. Argall Decl. ¶ 26; Ex. V to Def.’s Cross Mot. Summ.
J. OIP also determined that the FBI’s search was adequate and reasonable and that plaintiffs’
request for a fee waiver was moot because he was only assessed duplication fees. Argall Decl.
¶ 26.
On June 8, 2011, the FBI released additional “non-exempt, cross-reference” documents
responsive to the FOIA requests. Id. ¶ 28; Ex. W to Def.’s Cross Mot. Summ. J. The FBI
indicated that it had reviewed 391 pages of records and twelve audio tapes and was releasing 373
pages of records and three audiotapes to plaintiffs with certain information withheld pursuant to
the relevant FOIA exemptions. Argall Decl. ¶ 28. The FBI withheld four pages in their entirety
pursuant to Exemptions 6, 7(C), and 7(D) and withheld fifteen pages as duplicates. Id.B. Procedural Posture of the Case
Plaintiffs brought this action in federal court on November 3, 2010. [Dkt. # 1]. The
complaint alleged that the Withers informant file was specifically requested, Compl. ¶¶ 3, 20;
that it is subject to public disclosure under FOIA, id. ¶ 4; and that the FBI has not even
acknowledged the existence of the file, id. ¶ 23. Plaintiff moved for summary judgment on
January 26, 2011, arguing, in part, that the agency’s failure to produce records detailing the
informant relationship demonstrated either that the FBI’s search was inadequate or that the
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agency was improperly withholding records without specifying the particular exemption that
would justify such an action. Pls.’ Mem. in Supp. of Mot. Summ. J. at 11 [Dkt. # 9]. Plaintiffs
also challenged the exemptions upon which other records, which were identified, had been
withheld. Id. at 14. Defendant opposed the motion and filed its own cross motion for summary
judgment. Def.’s Cross Mot. Summ. J. [Dkt. # 14]. It briefed the question of whether the
records it acknowledged withholding were exempt, but went on to assert that even if the alleged
Withers informant file existed, it was not subject to the requirements of FOIA at all, but was
excluded from the statutory regime by 5 U.S.C. § 552 (c)(2). Id. at 38–44.
At that point, plaintiffs moved to compel the FBI: (1) to produce a Vaughn index
specifying what if anything was being withheld pursuant to the (c)(2) exclusion; and (2) to
produce the Withers informant file to the Court for in camera review. Pls.’ Mot. to Compel
[Dkt. # 18]. Plaintiffs further requested that the resolution of any other issues raised in the
motions for summary judgment be stayed pending resolution of the section 552(c)(2) issue. Pls.’
Mot. to Stay [Dkt. # 17]. The FBI moved to strike the motion to compel. Def.’s Mot. to Strike
[Dkt. # 19]. After a hearing on August 3, 2011, the Court ordered that a hearing would be held
on the exclusion issue raised in both defendant’s motion for summary judgment and plaintiffs’
motion to compel, and it indicated that the dates for any further briefing on the cross motions for
summary judgment would be established in connection with the ruling on the motion to compel.
Minute Order, Aug. 3, 2011. On October 4, 2011, the Court heard argument on the applicability
of section 552(c)(2) to plaintiffs’ FOIA request.
C. Documents Allegedly Confirming Withers’ CI Status
The FBI takes the position in this case that plaintiffs’ suspicions about Withers remain
unconfirmed. According to the FBI, none of the three releases of FOIA material to the plaintiffs
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“contained an alleged confidential informant file pertaining to Ernest Withers or documents
allegedly contained therein, nor has the FBI officially confirmed allegations that Withers served
as an informant for the FBI.” Argall Decl. ¶ 38. But plaintiffs maintain that the materials
released to the public on March 12, 2009 and March 8, 2010 included two documents that
“clearly show that Withers was an informant for the FBI.” Pls.’ Mem. in Supp. of Mot. Summ.
J. at 16.
The documents in question were provided to plaintiffs as part of the FBI’s FOIA
production. The first document reads: “Ernest Columbus Withers was formerly designated as
ME 338-R [redacted text] captioned ‘Ernest Columbus Withers; CI.’” Ex. B to Pls.’ Mot. to
Compel. The second document is a search slip for documents concerning Withers dated from
1978 that includes a handwritten notation: “Conf. Info.” Ex. D to Pls.’ Mot. to Compel. Other
material was redacted from the two pages. 2
The same documents were publicly released again on June 15, 2011, when the defendant
attached them as exhibits to its publicly filed Motion for Summary Judgment [Dkt. # 14]. The
exhibits differed slightly from the original documents included in the FOIA production in that
they had been assigned Bates numbers. They also now bore a notation from the FBI justifying
the redactions, citing Exemption 7(D), the category that protects information that could
“reasonably be expected to disclose the identity of a confidential source.” 5 U.S.C.
§ 552(b)(7)(D); Ex. X to Argall Decl. [Dkt. # 14-5].
The FBI explains:
To the extent plaintiff Perrusquia claims that the FBI’s release of Withers’ public
corruption files disclosed information from which he could deduce Withers’ alleged
status as a confidential informant, any such disclosure would have been inadvertent.
2 These documents are attached to the Court’s opinion as Ex. 1 and Ex. 2.
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Except in circumstances not applicable here, the FBI does not confirm or deny an
individual’s status as a confidential informant and protects from disclosure information
that could identify confidential informants as such.
Argall Decl. ¶ 38.
II. ANALYSIS
Whether the FBI is required to produce a Vaughn Index turns on the predicate question of
whether the documents plaintiffs have requested are subject to the requirements of the FOIA
statute. This requires the Court to determine whether, as a matter of law, the FBI may treat the
requested informant records as outside the scope of the Act under the provisions of section
552(c).
A. FOIA Background
FOIA requires the release of government records upon request, and its purpose “is to
ensure an informed citizenry, vital to the functioning of a democratic society, needed to check
against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins
Tire & Rubber Co., 437 U.S. 214, 242 (1978). FOIA includes nine exemptions under which the
government may refuse to disclose responsive records for specified reasons. “Given the FOIA’s
broad disclosure policy, the United States Supreme Court has ‘consistently stated that FOIA
exemptions are to be narrowly construed.’” Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007),
quoting DOJ v. Julian, 386 U.S. 1, 8 (1988); see also FBI v. Abramson, 456 U.S. 615, 621
(1982).
In a narrow set of cases, the FOIA exemptions “cover not only the content of the
protected government records but also the fact of their existence or nonexistence, if that fact
itself properly falls within the exemption.” Larson v. Dep’t of State, 565 F.3d 857, 861 (D.C.
Cir. 2001). In those circumstances, an agency may respond to a FOIA request by refusing to
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confirm or deny the existence of responsive records when “to answer the FOIA inquiry would
cause harm cognizable under an . . . exception.” Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir.
1982); see also Larson, 565 F.3d at 861. This is commonly known as a “Glomar response.” See
Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976) (explaining origin of the term “Glomar
response”).
The statute also contains three exclusions, added by the Freedom of Information Reform
Act of 1986. See Pub. L. No. 99-570, §§ 1801–04, 100 Stat. 3207 (1986). While the exemptions
require the government to balance the privacy interests in nondisclosure against the public
interest in disclosure before documents can be withheld, see Lepelletier v. FDIC, 164 F.3d 37, 46
(D.C. Cir. 1999), and the agency must reveal the fact of and grounds for any withholdings, the
exclusions permit the government to treat requests for records as falling outside the scope of the
statute altogether, see Department of Justice Guide to Freedom of Information Act (“FOIA
Guide”), 2004 Edition: Exclusions (May 2004), available at
http://www.justice.gov/oip/foia_guide09.htm (last visited Jan. 30, 2012). “In other words, an
agency applying an exclusion will respond to the request as if the excluded records did not
exist.” Tanks v. Huff, No. Civ. 95-568, 1996 WL 293531, at *5 (D.D.C. 1996), citing the
Attorney General’s Memorandum on the 1986 Amendments to the Freedom of Information Act
(“Atty. Gen.’s Mem.”) at 18 (Dec. 1987). The plaintiffs allege that this has happened in this case;
consistent with the notion of an exclusion, the FBI is not saying.
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B. The Section 552(c)(2) Exclusion
The exclusion set forth in 5 U.S.C. § 552(c)(2) is designed to protect against the use of
FOIA requests to law enforcement agencies as a means to uncover the identities of confidential
informants. The provision states:
Whenever informant records maintained by a criminal law enforcement agency
under an informant’s name or personal identifier are requested by a third party
according to the informant’s name or personal identifier, the agency may treat the
records as not subject to the requirements of [FOIA] unless the informant’s status
as an informant has been officially confirmed.
5 U.S.C. § 552(c)(2).
As the Department of Justice explains in its guidance, “[t]his exclusion contemplates the
situation in which a sophisticated requester could try to identify an informant by forcing a law
enforcement agency into a position in which it otherwise would have no lawful choice but to
tellingly invoke Exemption 7(D) in response to a request which encompasses informant records
maintained on a named person.” FOIA Guide at 4. Although Exemption 7(D) typically allows
an agency to withhold information to prevent the identification of confidential sources, invoking
the exemption in response to a request seeking files on a named individual would confirm that
the suspected individual is indeed a confidential informant. Id. at 4–5. “[T]his disclosure could
result in devastating harms to the source and to the system of confidentiality existing between
sources and criminal law enforcement agencies.” Id. at 4.
To address this situation, the (c)(2) exclusion allows the government to inform the
requester that it has no records responsive to the FOIA request without having to reveal whether
or not there is a file or the named individual is actually an informant. Id. at 4; see also S. REP.
NO. 98-221 at 25 (1983) (noting that where the (c)(2) exemption applies, the agency would have
“no obligation to acknowledge the existence of such records in response to the request”). By its
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own terms, the (c)(2) exclusion becomes inapplicable if and when an individual’s status as an
informant “has been officially confirmed.” 5 U.S.C. § 552(c)(2); see also FOIA Guide at 4.
C. The Scope of the Exclusion
Plaintiffs have invited the Court to opine broadly about the scope of the exclusion. They
contend that the (c)(2) exclusion is not available to the FBI here because it applies only to a
narrow set of circumstances involving living individuals, cooperating in narcotics or organized
crime investigations, where an agency’s compliance with a FOIA request could endanger the
integrity of an investigation or the safety of an informant. Pls.’ Mot. to Compel at 5–10. They
claim that the exclusion does not apply to the FOIA requests at issue in this case because the
alleged confidential informant is deceased, and there is no ongoing criminal investigation into
the civil rights movement. Id.Plaintiffs rely on various statements from the legislative history of the (c)(2) exclusion to
support their argument. Id. at 5–7 (citing, for example, statement of Sen. Orrin Hatch that “[t]his
section will directly improve drug enforcement” and statement of Sen. Dan Quayle that “the
intent of this provision was to prevent targets of organized crime investigations from using the
disclosure provisions of FOIA to find out if they were under investigation . . . ”) (internal
citations omitted). But under general principles of statutory construction, the Court need not
look to legislative history “when a statute’s language is plain on its face.” Pub. Citizen, Inc. v.
Rubber Mfrs. Ass’n, 533 F.3d 810, 818 (D.C. Cir. 2008), quoting Saadeh v. Farouki, 107 F.3d
52, 57 (D.C. Cir. 1997). If a statute’s text is plain and unambiguous, “the sole function of the
court is to enforce it according to its terms.” United States v. Ron Pair Enters., 489 U.S. 235,
241 (1989) (internal citations omitted). Here, the (c)(2) exclusion as written does not contain
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any of the limitations that plaintiffs ask the Court to read into the statute. Rather, it applies
“whenever” informant records are requested in a certain manner. 5 U.S.C. § 552(c)(2).
Plaintiffs suggest that while the (c)(2) exclusion may not be ambiguous standing alone, it
is ambiguous when read in conjunction with the entire statutory scheme. Chemehuevi Tribe of
Indians v. Fed. Power Comm’n, 420 U.S. 395, 403 (1975) (stating that a statutory provision must
be “read together with the rest of the Act”); PDK Labs., Inc. v. Drug Enforcement Admin., 362
F.3d 786, 797 (D.C. Cir. 2004) (finding that where there is ambiguity in the statutory scheme, a
court should construe the entire statute together). In particular, plaintiffs contend that two
provisions of the FOIA statute – the (c)(2) exclusion and Exemption 7(D) – conflict with each
other regarding the treatment of informant records: the former treats the records as completely
outside the scope of the statute, while the latter requires the government to justify any
withholdings of information and balance them against the competing public interest in
disclosure. Tr. at 5–6. Given both the two-pronged approach built into the statutory scheme and
the legislative history, plaintiffs argue that the Court should construe the exclusion narrowly and
apply it only to requests implicating legitimate criminal investigations with ongoing privacy
concerns. Tr. at 5–7, citing Pickard v. DOJ, 653 F.3d 782, 788 (9th Cir. 2011).
Plaintiffs point to opinions from the D.C. Circuit and other courts in this district and cite
them as authority for the proposition that the exclusion should be limited to these narrow
circumstances. Pls.’ Mot. to Compel at 9–10, citing Benavides v. Drug Enforcement Admin., 968
F.2d 1243, 1248 (D.C. Cir. 1992), modified, 976 F.2d 751 (D.C. Cir. 1992); Tanks, 1996 WL
293531, at *5–6. But plaintiffs overstate the significance of these cases. In Benavides, the court
quoted the jointly prepared comments of the chair and ranking minority member of the House
subcommittee involved in negotiating the amendments: “It is a narrow and specific statutory
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authority for criminal law enforcement agencies to act on the principle that an agency may refuse
to confirm or deny the existence of records where to answer the FOIA inquiry would cause harm
cognizable under a FOIA exemption.” Benavides, 968 F.2d at 1247, quoting Gardels, 689 F.2d
at 1103 (internal citations omitted). But the issue before the court at that time was the meaning
of the phrase “not subject to the requirements of this section,” and the statement drawing on the
legislative history was simply provided as background. See id. at 1246. The court did not hold
that the exclusion could only be applied in cases involving ongoing drug and organized crime
investigations. See Pls.’ Mot. to Compel at 9. And in Tanks, while the Court did include
language in its opinion indicating that the (c)(2) exclusion was meant to cover only those narrow
situations, 3 that discussion was not necessary to the Court’s ruling since the status of the
individuals as informants had been confirmed, and the FBI was not invoking the exclusion.
Tanks, 1996 WL 293531, at *5–6.
Plaintiffs also argue that the FBI’s position that the (c)(2) exclusion applies in this case is
inconsistent with other cases where questions concerning access to records related to confidential
informants were resolved based entirely on Exemption 7(D), not the (c)(2) exclusion, even when
the documents had been requested under an alleged informant’s name. Pls.’ Mot. to Compel at
10, citing Boyd v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, No. 05-1096, 2006
3 Citing the Atty. Gen’s Mem., the Court noted: “The (c)(2) exclusion applies to situations
involving the threatened identification of confidential informants. Id. at 22. This exclusion is
designed to protect against the possible use of the FOIA to discover the identities of confidential
informants. Id. at 23. It is reserved for circumstances in which a confidential source is
compelled by the criminal organization with which he is associated to surrender his privacy
interests, usually either by providing a privacy waiver to the organization or to make the request
directly on behalf of the organization. Id. at 23–24. In either case, a law enforcement agency
would be in the untenable position of having to respond to a valid FOIA request directly targeted
at a named informant’s files. Id. at 23. The (c)(2) exclusion is principally intended to permit an
agency to avoid giving a response that would identify a named party as a source. Id. at 23–24.”
Tanks, 1996 WL 293531, at *6.
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WL 2844912 (D.D.C. Sept. 29, 2006); Campbell v. DOJ, 231 F. Supp. 2d 1 (D.D.C. 2002);
Burke v. DOJ, No. 96-1739, 1999 WL 1032814 (D.D.C. 1999). But the (c)(2) exclusion is not
mandatory – it says the government “may” treat the documents as not covered by FOIA, not that
they are required to do so. 5 U.S.C. § 552(c)(2). Therefore, the fact that the exclusion was not
invoked in other cases is not dispositive in this case.
Ultimately, the Court does not need to reach the question of whether the (c)(2) exclusion
should be interpreted to be as limited as plaintiffs and the Tanks opinion suggest. Because even
if the plain language of the exclusion is applied without the proposed narrowing, the exclusion
would have no relevance if “the informant’s status as an informant has been officially
confirmed.” 5 U.S.C. § 552(c)(2).
D. Judicial Review of an Agency Decision to Invoke an Exclusion
The FBI also invited the Court to address broad issues that may not be necessary to the
ruling in this case: through the time of the hearing, the agency advanced the argument that the
plain language of the (c)(2) exclusion affords the agency broad discretion to treat informant
records as outside the scope of the FOIA statute, and that this exercise of discretion is not subject
to judicial review. Tr. at 27–28 (emphasizing that the statutory language states that “the agency
may treat the records as not subject to the requirements of [FOIA]”) (emphasis added). But in a
pleading filed after the hearing, the FBI changed course and stated that an agency’s reliance on a
FOIA exclusion is subject to some judicial review and should be evaluated under a de novo
standard. Def.’s Post-Arg. Mem. at 1, citing Int’l Counsel Bureau v. CIA, 774 F. Supp. 2d 262,
266 (D.D.C. 2011).
Plaintiffs counter that they have not asked the Court to review an exercise of agency
discretion, but rather to determine whether the FBI’s reliance on the (c)(2) exclusion in this case
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would have been invalid as a matter of law because the informant’s status has been confirmed.
Pls.’ Post-Arg. Mem. at 5. The Court agrees that it does not need to reach the question of
whether an agency’s decision to exclude an informant file from FOIA processing is subject to
judicial review, or what standard of review would apply, if it determines that official
confirmation has occurred in this case and the exclusion is therefore inapplicable.
E. Official Confirmation of the Informant’s Status
“Where an informant’s status has been officially confirmed, a Glomar response is
unavailable, and the agency must acknowledge the existence of any responsive records it holds.”
Boyd v. Criminal Div. of DOJ, 475 F.3d 381, 389 (D.C. Cir. 2007).
1. What Constitutes Official Confirmation?
There is no precedent binding on this Court that sets out a test for what would constitute
“official confirmation” for purposes of the exclusion, see North v. DOJ, 658 F. Supp. 2d 163,
171 n.7 (D.D.C. 2009), vacated, No. 08-1439, 2011 WL 4071634 (D.D.C. Sept. 13, 2011), and
neither party was inclined to craft one at the hearing. Both parties noted the availability of a
three-part test for “official acknowledgement” under Exemptions 1 and 3 set forth by the D.C.
Circuit in Wolf, 473 F.3d at 378, but there is a question as to whether that test should be applied
here. See Pickard, 653 F.3d at 789 (declining to apply the Wolf “official acknowledgement” test
to the (c)(2) exclusion context because the exemptions and the exclusion “do not implicate the
same concerns”) (concurring opinion). Under the Wolf test, official acknowledgement requires
the following elements: (1) “the information requested must be as specific as the information
previously released”; (2) “the information requested must match the information previously
disclosed”; and (3) “the information requested must already have been made public through an
official and documented disclosure[.]” Wolf, 473 F.3d at 378. And in the Wolf case, the Court of
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Appeals determined that congressional testimony by the CIA director constituted the official
acknowledgment. Id. at 379.
There are some instructive cases from this Circuit that have addressed what would not
amount to official acknowledgment for purposes of certain FOIA exemptions. See Ashfar v.
Dep’t of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983) (a leak cannot constitute official
acknowledgement); Valfells, v. CIA, 717 F. Supp. 2d 110, 118 (D.C. Cir. 2010) (disclosure by
another agency and logical deductions made by the requester do not constitute official
acknowledgement). And, at least one court has addressed what can constitute official
confirmation. See Pickard, 653 F.3d at 787 (statements made by U.S. attorneys and testimony
solicited by them in open court about a confidential informant was found to be official
confirmation).
2. The Record Reveals that Withers’ Informant Status Has Been Officially Confirmed.
Drawing from all of these precedents, the Court finds that Ernest Withers’ status as a
confidential informant has been officially confirmed. 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 Chief of the Record/Information Dissemination Section,
Records Management Division, as part of the FBI’s own responses to the FOIA request. See
Argall Decl. ¶¶ 8, 12, 22; Ex. D, Ex. H, and Ex. R to Def.’s Mot. Summ. J; Ex. A and Ex. C to
Pls.’ Mot. to Compel. 4 A FOIA response is an “official” communication by an agency, made by
personnel authorized to make such a disclosure. See Valfells, 717 F. Supp. 2d at 118
(suggesting, but not holding, that responses to FOIA requests are “official to some degree”).
4 If the Wolf test were to be applied, all three prongs would be satisfied.
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And if the inclusion of the records in a FOIA response alone leaves some room to doubt the
conclusiveness of the confirmation, the FBI disclosed the documents a second time in this case
by attaching them as exhibits to its motion for summary judgment on the public docket. See
[Dkt. # 14]. The filing provided even more detail than the first disclosure since notes were added
to the original records explaining that the redactions from the document were made pursuant to
Exemption 7(D), the category that applies to confidential source information. See Ex. X to
Argall Decl.
But the FBI persists in its position that the informant’s status has not been confirmed.
First, it claims that the terms in the records that were released – “Ernest Withers, CI,” “ME 338-
R” and “Conf. Info.” – do not signify that Withers was a confidential informant. Def.’s Opp. to
Pls.’ Mot. to Compel (“Def.’s Opp.”) at 14–16. This argument is not worthy of serious
consideration and it insults the common sense of anyone who reads the documents, especially
now that the FBI has cited Exemption 7(D) as the justification for the partial redactions. The
FBI also asserts that Withers’ daughter has informed reporters that the documents do not
convince her that her father served as an informant. Id. at 15–16. The Court is not persuaded
that an interested family member’s perspective, however sincere it may be, sheds much light on
the issue.
The FBI contends that there was no official confirmation in this case because plaintiffs
can point to no official public pronouncement revealing Withers’ status as a confidential
informant. Def.’s Opp. at 13–18. 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. Id.; Tr. at 32. But the statute, which the FBI
contends must be strictly construed, expressly contemplates that there will be circumstances
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where official confirmation has occurred. If the FBI is claiming that confirmation has not been
provided by the FBI here because such confirmation is never provided, then it is taking the
position that the exception expressly included in the statute is never going to be available. In a
recent case, the Ninth Circuit rejected a similar argument made by the government – that official
confirmation can only occur through a press release – noting that no confidential informant had
ever been confirmed in that manner, and it was “difficult to believe that Congress intended
section 552(c)(2) to be effectively inoperative.” See Pickard, 653 F.3d at 788 (concurring
opinion) (internal citations omitted).
Finally, the FBI argues that official confirmation must be intentional and not inadvertent.
Def.’s Opp. at 16–17; Tr. at 35. It cites the Pickard case, 653 F.3d at 787–88, where deliberately
elicited testimony at a public criminal trial was deemed to be official confirmation, and contends
that even an official release of information under FOIA cannot be treated as “official
confirmation” under the (c)(2) exclusion unless unmasking the confidential informant was the
intended result. Def.’s Opp. at 16. The FBI submits that to the extent any information
suggesting Withers was an informant was disclosed, “it was the product of error [and] no
employee in the FBI was authorized” to confirm that information. Def.’s Post-Arg. Mem. at 4.
According to the agency, there was no intent to confirm the alleged informant’s status, and the
necessary intent cannot be presumed from a FOIA response. Id; Tr. at 38. (“A FOIA processor
has authority to release the documents . . . [but] does not have authority to officially confirm a
source’s identity.”).
Plaintiffs’ position is that even if the confirming records were disclosed in error, that does
not rule out the conclusion that they constitute “official confirmation” under (c)(2). Pls.’ Post-
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Arg. Mem. at 5–6. As plaintiffs put it, “inadvertent” is not the same thing as “unofficial.”
See Tr. at 19.
The Court notes that the FBI can point to no statutory language that calls for a showing of
intent before confirmation can be “official” or that requires a planned or purposeful revelation.
Congress simply utilized the passive voice and provided that the exclusion would no longer be
available if the informant’s status “has been officially confirmed.” See 5 U.S.C. § 552(c)(2).
And plaintiffs’ point of view is consistent with the dictionary definition of the term: the word
confirmation simply means that a fact has been established, not that it was formally or
purposefully announced. See Oxford English Dictionary online,
http://www.oed.com/viewdictionaryentry/Entry/38847 (last visited Jan. 30, 2012) (defining
“confirm” as “to corroborate, or add support to (a statement, etc.); to make certain, verify, put
beyond doubt”); and Merriam Webster online dictionary, http://www.merriam-
webster.com/dictionary/confirm (last visited Jan. 30, 2012) (defining “confirm” as “to give new
assurance of the validity of: remove doubt about by authoritative act or indisputable fact”).
Applying these definitions, the documents – which were “officially” disclosed by the FBI – serve
to corroborate, verify, and add new assurance to the validity of the assertion that Mr. Withers
functioned as a confidential informant for the FBI.
3. The Claim of Inadvertence Does Not Alter the Result.
But even if the Court were inclined to agree with the general principle being advanced by
the FBI here that “official confirmation” must be purposeful and not negligent or accidental, that
principle would not change the result in this case. The FBI claims that the confirming disclosure
in this case was inadvertent, and that therefore, it should not trigger any consequences under the
statute. See Def.’s Post-Arg. Mem. at 4. The Court notes first that a finding that an informant’s
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status has been confirmed does not necessarily mean that the government will be required to
disclose the documents; it has not yet been determined whether some information in the file may
be properly protected under a valid FOIA exemption. FOIA Guide at 4; see also Benavides, 968
F.3d at 1248 (“There is no evidence that Congress intended [the (c)(2) exclusion] to repeal or
supersede the other enumerated FOIA exemptions, or to require disclosure whenever the
informant’s status has been officially confirmed.”). A ruling finding the exclusion to be
unavailable simply calls upon the agency to go ahead and process the informant file under FOIA,
and identify any material it seeks to withhold pursuant to the statutory exemptions.
But more important, the claim of inadvertence being advanced here is a day late and a
dollar short. It was first raised well after the disclosures, and it is entirely conclusory. In finding
the claim of inadvertence to be unavailing here, the Court notes the following:
x Plaintiffs’ FOIA requests were of a high profile nature, and they involved matters
of great public interest.
x If the (c)(2) exclusion was involved, the agency’s handling of request required the
highest level of care. See FOIA Guide at 5 (“When an agency reaches the
judgment that it is necessary to employ an exclusion, it should do so as a specific
official determination that is reviewed carefully by appropriate supervisory
agency officials. The particular records covered by an exclusion action should be
concretely and carefully identified and segregated from any responsive records
that are to be processed according to ordinary procedures.”) (footnotes omitted).
x Withers was the sole subject of the FOIA request, and the productions of
documents made to plaintiffs were not large, so the agency had ample opportunity
to review its production carefully.
x One of the documents that confirmed Withers’ status as a confidential informant,
Ex. B to Pls.’ Mot. to Compel, was redacted in part, suggesting that someone
looked at it closely and took the time to redact other sensitive information. The
other document, Ex. D to Pls.’ Mot. to Compel, has a handwritten notation:
“Conf. Info.”
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x After the documents were released, neither the Department of Justice nor the FBI
took any of the remedial steps that ordinarily follow an inadvertent disclosure.
The FBI was placed on notice of the disclosure, at the very latest, on May 22,
2009, when plaintiffs explicitly referred to the documents in amending his appeal,
but no one even said “oops.” The FBI did not immediately send a communication
asserting that the disclosure had been accidental, and it did not demand or even
request that the documents be sequestered or returned. Cf. Williams v. District of
Columbia, No. 06-02076, 2011 WL 3659308 (D.D.C. Aug. 17, 2011) (holding
that in the attorney-client privilege context, inadvertent disclosures do not waive
privilege when the holder of the privilege promptly took reasonable steps to
rectify the error); see also Bowles v. Nat’l Ass’n. of Home Builders, 224 F.R.D.
246, 253–54 (D.D.C. 2004) (“Courts have consistently held that, in cases of
involuntary disclosure, waiver occurs only when the holder has failed to take
reasonable steps to reclaim the protected material.”) (internal quotation marks and
citations omitted).
x Not only did the FBI fail to take any steps to retrieve the documents, it produced
them a second time as attachments to a publicly filed motion for summary
judgment. [Dkt. # 14].
In sum, the case does not give rise to concerns that the Court is equating “official confirmation”
to a mistake.
The conclusion that the FBI should be bound by the confirmation in this case is bolstered
by other circumstances. The Department of Justice has clear rules about what an agency should
do when it invokes the (c)(2) exclusion that the FBI did not follow in this case. See, e.g., FOIA
Guide at 5–7 (instructing agencies invoking an exclusion that “it is the government’s standard
litigation policy . . . that, whenever a FOIA plaintiff raises a distinct claim regarding the
suspected use of an exclusion, the government will routinely submit an in camera declaration
addressing that claim, one way or the other”). According to the Department of Justice’s own
instructions, because the “narrow” situations where the exclusion applies are so serious and
fraught with danger for the informant, the agency should not invoke the exclusion publicly. To
do so would undermine the whole purpose of the exclusion, which is to enable the government to
avoid confirming the existence of a confidential informant by citing Exemption 7 in a FOIA
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response. Atty. Gen’s Mem. at 16. Thus, internal Department of Justice guidance states that the
government should make an ex parte filing with the Court if the (c)(2) exclusion is even
implicated.
Yet here, the FBI did no such thing. Instead, it responded to plaintiffs’ motion for
summary judgment with an opposition on the public docket expressly citing the (c)(2) exclusion.
In other words, this is yet another example of official, public action by the FBI that tends to
verify the informant’s status and undermine the FBI’s claim that merely complying with the
FOIA regime and acknowledging the existence of the records or invoking Exemption 7(D)
would cause some harm that the exemptions were designed to prevent.
Finally, if the FBI did invoke the exclusion, it was done under less than compelling
circumstances: not to protect a living informant, but only the deceased informant’s descendants;
not to protect them from danger or bodily harm, but only from potential stigma or
embarrassment, some of which has already come to pass as a result of previous media articles on
the subject; and not to avoid revealing the informant’s participation in an ongoing, legitimate
criminal investigation that could be compromised, but simply to withhold information related to
an unfortunate episode in our nation’s history from which lessons can be learned.
In its final plea to the Court, the FBI has expressed concern that a determination that
Withers’ informant status has been confirmed would have a chilling effect on the activities and
cooperation of other sources. Def.’s Post-Arg. Mem. at 3. This opinion is not meant to and does
not establish a general principle that inadvertent disclosure will always constitute official
confirmation. Rather, the Court’s ruling turns upon the unique circumstances presented by this
case: first and foremost, a belated and tepid claim of inadvertent disclosure that was not
followed by any of the usual conduct that accompanies an inadvertent disclosure; second, the
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fact that the informant is deceased; third, the serious questions surrounding the legitimacy of the
investigation in which confidential informants were utilized, see generally, Senate Select Comm.
to Study Governmental Operations with respect to Intelligence Activities, Final Report, Book III,
“Dr. Martin Luther King, Jr., Case Study,” S. REP. NO. 94-755 (1976); and finally, the substantial
amount of time that has elapsed since the investigation and the informant relationship were
active, see In re Kutler, 800 F. Supp. 2d 42, 50 (D.D.C. 2011) (“The special circumstances
presented here – namely, undisputed historical interest in the requested records – far outweigh
the need to maintain the secrecy of the records.”) Given the entirely sui generis nature of the
case and the fact that it is not meant to set any precedent that would apply to ongoing and/or
legitimate organized crime, narcotics, or even white collar criminal investigations, the Court is
confident that the ruling will not have the chilling effect feared by the FBI.
As a final point of clarification, the Court does not hold that the informant file must be
produced – only that if the FBI has relied on the (c)(2) exclusion to treat the records as outside
the scope of FOIA, that exclusion is no longer available in this case. So the FBI must review the
file if it exists and then either produce the responsive documents or provide a Vaughn index
identifying the specific exemptions under which any responsive documents have been withheld.
See Benavides, 968 F.2d at 1246 (“[W]e conclude that when an informant’s status has been
officially confirmed, the requirements of FOIA govern, and the agency must acknowledge the
existence of any records it holds.”). Thus, the motions for summary judgment will be denied as
moot without prejudice to the filing of additional motions in the future if a dispute remains after
the FOIA review has been undertaken and completed. If the FBI asserts Exemption 7 as its
justification for the withholding of documents, the Court will take up the question of whether the
threshold for its application has been met at that time. See Roth v. DOJ, 642 F.3d 1161, 1173
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(D.C. Cir. 2011), citing Pratt v. Webster, 673 F.2d 408, 419–21 (D.C. Cir. 1983). And whether
the Court will need to call for in camera review of the file will depend on the nature and extent
of any claimed exemptions, so any order to compel such production is premature.
CONCLUSION
Because the Court finds that Withers’ status as a confidential informant has been
officially confirmed, it will grant plaintiffs’ motion to compel production of a Vaughn index
[Dkt. # 18]. The cross motions for summary judgment [Dkt. # 9 and # 14] and the motion to
compel the production of the records for in camera review will be denied as moot without
prejudice. A separate order will issue.
AMY BERMAN JACKSON
United States District Judge
DATE: January 31, 2012
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