Summary
In Memphis, the plaintiff requested a single file concerning an informant, who was a noted photographer of the civil rights movement, see id. at 2-4.
Summary of this case from Huggans v. Exec. Office for U.S. AttorneysOpinion
Civil Action No. 10–1878(ABJ).
2012-01-31
MEMPHIS PUBLISHING COMPANY, et al., Plaintiffs, v. FEDERAL BUREAU OF INVESTIGATION, Defendant.
Charles D. Tobin, Christine N. Walz, Holland & Knight, LLP, Washington, DC, for Plaintiffs. Lesley R. Farby, Wendy M. Doty, U.S. Department of Justice, Washington, DC, for Defendant.
Charles D. Tobin, Christine N. Walz, Holland & Knight, LLP, Washington, DC, for Plaintiffs. Lesley R. Farby, Wendy M. Doty, U.S. Department of Justice, Washington, DC, for Defendant.
MEMORANDUM OPINION
AMY BERMAN JACKSON, District Judge.
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
IMAGE
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.
These documents are attached to the Court's opinion as Ex. 1 and Ex. 2.