Memphis Publishing Company v. Federal Bureau of Investigation
879 F. Supp. 2d 1
D.D.C.2012Background
- FOIA requests by Perrusquia (Commercial Appeal) for FBI records on Ernest Withers, deceased civil rights photographer, alleging he was an FBI informant.
- FBI produced partial records and invoked exemptions; it did not acknowledge an informant file and resisted a Vaughn index or in-camera review.
- Perrusquia amended appeals to seek the confidential informant file (alleged CI designation ME 338-R) and related Withers materials; OIP upheld the FBI’s withholding on later productions.
- Two released documents allegedly show CI status: a record listing Withers as CI and a 1978 search slip with a 'Conf. Info.' notation; later attached with Bates numbering and Exemption 7(D) redactions.
- Court examined whether § 552(c)(2) exclusion applies to informant records and whether official confirmation of status defeats the exclusion.
- Court holds Withers’ CI status has been officially confirmed, so the exclusion does not apply; motions for summary judgment denied as moot and Vaughn index production compelled, with further review to follow.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 552(c)(2) exclusion applies. | exclusion should apply to keep records outside FOIA scope | status not officially confirmed; exclusion may apply | exclusion not applicable; status confirmed, require FOIA processing |
| What constitutes official confirmation of an informant. | documents released constitute confirmation | no official public pronouncement; inadvertence not proven | official confirmation found; FOIA governs the records |
| Whether inadvertent disclosure defeats confirmation. | inadvertent disclosure can still confirm status | inadvertence cannot imply confirmation | inadvertence did not alter result; confirmation remains |
| Scope of judicial review for agency exclusion decisions. | review of exclusion is appropriate | exclude from review or review limited | court need not resolve standard here; exclusion inapplicable anyway |
Key Cases Cited
- Wolf v. CIA, 473 F.3d 370 (D.C. Cir. 2007) (official acknowledgement standards; broad context for acknowledgement)
- Gardels v. CIA, 689 F.2d 1100 (D.C. Cir. 1982) (Glomar principles; harm from confirming existence)
- Benavides v. Drug Enforcement Admin., 968 F.2d 1243 (D.C. Cir. 1992) (informant status official confirmation triggers FOIA applicability)
- Boyd v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, No. 05-1096, 2006 (D.D.C. 2006) (Exemption 7(D) and informant issues; related reasoning)
- Ashfar v. Dep't of State, 702 F.2d 1125 (D.C. Cir. 1983) (non-confirmation and disclosure rules in FOIA context)
- Pickard v. DOJ, 653 F.3d 782 (9th Cir. 2011) (official confirmation standards; contextual application)