Rare victories in recent FOIA cases raise questions about judicial deference

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More than four years ago, The Commercial Appeal (Memphis) reporter Marc Perrusquia submitted a federal Freedom of Information Act request for a confidential informant file the FBI claimed did not exist. In July, after nearly two years of litigation and a court order, the bureau finally admitted that it did exist.

AP Photo by Bebeto Matthews

A FOIA request filed by The Commercial Appeal sought to prove that civil rights photojournalist Ernest Withers was also a confidential informant for the FBI.

The January court order that held the FBI could no longer deny the file’s existence represents what FOIA experts describe as a rare victory in an area of FOIA litigation that has historically challenged requesters: cases in which an agency argues release would harm law enforcement activity or national security. These challenges arise in part from the high deference courts have traditionally given agencies’ justifications for withholding in such cases.

Jim Lesar, a 40-year FOIA litigator whose cases nearly all involve efforts to obtain records withheld on national security and law enforcement grounds, says he has seen “some erosion” of judicial deference in such cases in recent years.

Columbia Law professor David Pozen says it is “very hard to track precise linkages here or sharp causal claims” when it comes to gauging trends in the levels of judicial deference in these cases. However, he says that in any event, any such changes are “operating within a very narrow band of great deference.”

“I don’t know of any judges in the FOIA context who are not operating in a very deferential vein,” he says. “The baseline here is so deferential that we’re talking about relatively marginal moves on either side of that baseline.”

Many FOIA experts say that recent wins this year in these areas — including Perrusquia’s — are the product of an unusual, yet more ideal, level of judicial review. Some say these cases are aberrations, rather than a new trend of decreased deference. However, others say these unusual rulings raise questions about whether judges are becoming more skeptical of agencies’ claims in these cases.

Official confirmation

In 1997, Perrusquia received a tip that Ernest Withers, a renowned civil rights photographer, was a confidential informant for the FBI in the bureau’s efforts to monitor the civil rights movement. Withers was famous for capturing well-known images from that era, such as Dr. Martin Luther King, Jr. riding one of the first desegregated buses in Montgomery, Ala., and scenes from Emmett Till’s murder trial.

“The individual who told me this said that if I ever wrote about it, he would deny it,” says Perrusquia. “Withers wasn’t going to talk about it, and I just tucked my notes away and forgot about it.”

Then, in 2007, Withers died. Hoping that any privacy interests would have diminished with his death, Perrusquia submitted a FOIA request a year later for records related to Withers, alleging in his request that the photographer “doubled as an FBI informant.” While the FBI responded with more than 360 pages of records from a 1970s public corruption probe of Withers, it denied the existence of any informant file.

“I remember when I got that letter from them,” says Perrusquia. “I thought, what does this mean? It really hit me in the gut — am I wrong about this?”

However, in reviewing the released records, he found a partially-redacted document that read: “Ernest Columbus Withers was formerly designated as ME 338—R [redacted text] captioned ‘Ernest Columbus Withers; CI.’” Another document — a search slip for records related to Withers — contained the handwritten notation “Conf. Info.”

On Sept. 12, 2010, he revealed his findings in an article, “Photographer Ernest Withers doubled as FBI informant to spy on civil rights movement.” The article detailed what Perrusquia had discovered about Withers’s role as “a prolific informant” who provided the FBI with “tips and photographs detailing an insider’s view of politics, business and everyday life in Memphis’ black community.”

In November 2010, Perrusquia sued for the informant file, and in January this year, a U.S. District Court in Washington, D.C., held the FBI could no longer deny the existence of the file.

In issuing the order, the court — in what experts describe as a rare move — rejected the FBI’s argument that acknowledging such a file’s existence would “have a chilling effect on” other law enforcement sources.

In refusing to confirm Withers’ status as a confidential informant, the FBI argued that any informant file — if it existed — would fall under an “exclusion” to the FOIA that provides that when a third party requests informant records from a criminal law enforcement agency using the informant’s name or personal identifier, it “may treat the records as not subject to the requirements of [FOIA] unless the informant’s status as an informant has been officially confirmed.”

The court, however, held the FBI had twice “officially confirmed” Withers’ informant status, first by releasing it to Perrusquia in response to his FOIA request, and again by attaching the documents as exhibits to the motion for summary judgment it filed in the case last year.

In response to the FBI’s 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,” the court stated that “[t]his argument is not worthy of serious consideration and it insults the common sense of anyone who reads the documents.”

“I remember the judge said in one of the hearings ‘you might not want to officially acknowledge that you’ve confirmed him as an informant, but you’ve officially confirmed him,’” says Perrusquia.

According to attorney Chuck Tobin, who represented Perrusquia and his newspaper in the case, this is only the second case in which a court has held that the FBI’s actions constituted “official confirmation.”

FOIA experts praised the ruling as one that reflects the type of judicial scrutiny that should be applied against other claims of law enforcement harms, but is too rarely seen.

“Normally, it would be a very difficult case to win,” says Lesar.

The U.S. Department of Justice declined to comment on the case.

In April, Lesar, too, won a favorable court order in a FOIA case dealing with access to law enforcement records.

He represented journalist George Lardner in seeking access to records relating to various members of a Chicago crime family. While the court rejected Lardner’s challenges to the adequacy of the agency’s search for records, it ordered the FBI to reprocess all of the responsive records for possible additional non-exempt and releasable portions.

Lardner pointed out that in compiling and submitting its Vaughn index — a type of affidavit that lists and explains an agency’s withholding of documents — the agency released additional information from 219 of the 289 documents listed. While the agency argued that these were merely discretionary releases, rather than the result of “pure error,” Lardner argued that this was due to improper processing of his request, at an impermissible error rate of 76 percent. The court agreed.

“The defendants’ Vaughn index is, in a word, inadequate,” the court held. “The FBI provides no additional justification . . . as to why these documents were suddenly deemed proper for release.”

The U.S. Attorney’s Office declined to comment on the case because the litigation is still ongoing.

Requiring specificity in such documents is important for both judges and requesters in FOIA litigation, writes Meredith Fuchs, former vice president and general counsel of the National Security Archive, in her 2006 article, “Judging Secrets: The Role Courts Should Play in Preventing Unnecessary Secrecy.” Specific explanations for withholding not only assist the court in reviewing the agencies claims, but also help requesters formulate arguments challenging withholding, she explains in the article for the Administrative Law Review.

“The fact that the agency’s affidavits failed to meet the standard for specificity ranks as the most likely reason for a circuit court to reverse the judgment of a district court in favor of the agency in a FOIA case involving national security information,” she writes. “For these reasons, it is incumbent on courts to enforce true specificity, separation, and indexing requirements on government affidavits.”

Shadow boxing

Many FOIA experts agree that litigation challenging an agency’s claim that releasing records will harm national security or law enforcement is often more difficult than litigating other types of harms.

One hurdle in such cases is FOIA litigants’ ability to challenge the government’s withholding of documents where they are not sure what exactly the documents contain. In cases involving national security and law enforcement concerns, the government may often file documents under seal.

“It’s a challenge,” says Tobin. “You have even less information about what you don’t know. You have an even greater challenge trying to explain to the court why you’re not getting the information.”

Because of such informational obstacles, New York Times attorney David McCraw describes litigating cases in the field of national security as “shadow boxing.”

McCraw recently faced this problem while representing the Times and its reporter Charlie Savage in their effort to obtain access to a classified report regarding foreign intelligence collection under section 215 of the PATRIOT Act. This provision authorizes the government to apply for a court order “requiring the production of any tangible things” for certain types of investigations in gathering foreign intelligence information.

In a May 17 opinion, the U.S. District Court in New York City reiterated the standard of judicial review typically applied in such cases.

That is, courts must review an agency’s claim that a FOIA exemption applies de novo, giving a fresh look to the facts and the law, and with no deference due to the agency’s decisions.

However, in the national security context, the government’s burden to defend a withholding was “a light one.”

“Courts have consistently deferred to executive affidavits predicting harm to national security,” the court explained. Therefore, while the government would be required to “submit declarations with the ‘reasonable specificity’ needed to facilitate meaningful review,” it could omit from such documents any “factual descriptions that if made public would compromise the secret nature of the information.”

Where the government withholds descriptions of the document, McCraw says a litigant has “no idea what argument is being made, and what facts are being presented to the court.”

“That’s one of those areas where we’re totally dependent on the judge to make sure that is not abused, that what’s being put in as classified is truly classified,” he says.

Fortunately, the judge did agree to review the classified document privately in chambers to assess the agency’s claims that it was properly classified and that no non-exempt portions could be released.

However, as the opinion noted, such review “is considered the exception, not the rule.”

“I think generally, judges held FOIA requesters to a fairly high standard before they say in camera review is required,” says McCraw. “Judges are reluctant to do it.” While the court ultimately ruled against the Times, McCraw says one positive aspect of the case was that the judge was willing to conduct in camera review.

“Without seeing the document,” he says, “we can never say for sure that the judge made ‘the right decision.” However, knowing that a neutral decision maker viewed the report “was the right outcome in terms of at least not having to simply rely on the government’s assertion,” says McCraw.

Such review, experts say, can be difficult to obtain, as courts have traditionally given “substantial weight” to agency affidavits regarding classified records.

“Not only do courts give substantial weight to the executive’s claims something should be withheld, but rarely look at the documents themselves in many cases,” says Pozen.

“Deference to the agencies on national security matters has become the norm,” agrees Steven Aftergood, director of the Federation of American Scientists Project on Government Secrecy, a non-profit organization that advocates for openness in national security matters.

Another of the “occasional exceptions” to this norm, according to Aftergood, is the February ruling in Center for International Environmental Law v. Office of the U.S. Trade Representative. A district court ordered the U.S. Trade Representative to release a document it claimed was classified, holding that the agency had not provided a “logical” explanation for how release could harm foreign affairs.

“That case makes your heart pound,” says Aftergood. “[The judge] said ‘wait a minute — that’s illogical,’ and that is so unusual that one reads the decision with a sense of exhilaration.”

The case involved the government’s attempt to withhold a one-page paper that set forth the United States’ initial proposed interpretation of the phrase “in like circumstances” for use in negotiations of the Free Trade Agreement of the Americas in the 1990s and 2000s.

During the negotiations, the participating nations agreed that confidential negotiating documents would not be publicly released until Dec. 31, 2013, “unless a country were to object to the release of one of its own documents at that time.” Citing the confidentiality agreement, the trade office withheld the document as classified, claiming that the “loss of trust” resulting from its release would damage its foreign relations with other nations in trade-related matters. Further, it argued that it would lose flexibility in subsequent negotiations to interpret that phrase differently.

At this point, Lesar says, based on his experience, he “would have expected the court to routinely defer to the government affidavit.

However, in a surprising move, the court rejected the government’s explanations, finding that they had been made with “at a high level of generality,” and “without articulating particular reasons why” foreign negotiators would be interested in the agency keeping its own position paper a secret. Further, the court held that the trade office had inadequately supported its claim that releasing its own document early in violation of the confidentiality agreement would actually harm foreign affairs.

According to Lesar, the fact that the judge “didn’t simply accept the government’s claim” and ordered release is “very unusual.” In his experience, that has only happened in “one or five percent of cases involving national security — probably closer to one percent than five percent.”

“The judge did what judges almost never do, which is to say, ‘hey, that classification position doesn’t make any sense,’” says Aftergood. “The kind of substantive review that the court performed in [that case] is literally extraordinary — we just don’t see it.”

The Department of Justice and the trade office declined to comment on the case due to ongoing litigation.

According to experts, these wins could perhaps signal a trend of heightened judicial scrutiny in such cases, or could merely represent isolated incidences in an entrenched pattern of judicial deference. Regardless, they agree that such cases are rare occurrences in what are commonly known as some of the most difficult areas of FOIA litigation, as courts have traditionally given broad deference to agency assertions that harms to national security or law enforcement will result from release.

However, Pozen notes, the fact that they are litigated at all may still have a positive impact on the “broader ecology of transparency.” Even where the government wins, he explains, the process of litigation itself can generate additional releases of records and at least requires the government to explain its actions to the courts.