Rare victories in recent FOIA cases raise questions about judicial deference

By You-TIN HAN

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 oflitigation and a court order, the bureau finally admitted that it did exist. 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 AP PHOTO BY BEBETO MATIHEWS have tradItionally given agencies' justifications for withholding in A FOIA request filed byThe Commercial Appeal sought to prove that civil rights such cases. photojournalist Ernest Withers was also a confidential informant for the FBI. Jim Lesar, a 40-year FOIA litigator whose cases nearly all involve aberrations, rather than a new trend of submitted a FOIA request a year later efforts to obtain records withheld on decreased deference. However, others for records related to Withers, alleging national security and law enforcement say these unusual rulings raise quesin his request that the photographer grounds, says he has tions about whether judges are "doubled as an FBI informant." While seen "some erosion" becoming more skeptical of the FBI responded with more than 360 of judicial deference agencies' claims in these cases. pages of records from a 1970s public in such cases in recent corruption probe of Withers, it denied years. Official confirmation the existence of any informant file. Columbia Law proIn 1997, Perrusquia re"I remember when I got that letfessor David Pozen ceived a tip that Ernest Withter from them," says Perrusquia. "I says it is "very hard to ers, a renowned civil rights thought, what does this mean? It really track precise linkages photographer, was a confidenhit me in the gut - am I wrong about this?" tial informant for the FBI in here or sharp causal Jim Lesar claims" when it comes the bureau's efforts to monitor However, in reviewing the released to gauging trends in the levels of judicial records, he found a partially-redacted the civil rights movement. Withers was deference in these cases. However, he document that read: "Ernest Columbus famous for capturing well-known imsays that in any event, any such changes ages from that era, such as Dr. Martin Withers was formerly designated as ME are "operating within a very narrow 338-R [redacted text] captioned 'ErLuther King, Jr. riding one of the first nest Columbus Withers; CL'" Another band of great deference." desegregated buses in Montgomery, document - a search slip for records "I don't know of any judges in the Ala., and scenes from Emmett Till's related to Withers - contained the FOIA context who are not operating in murder trial. handwritten notation "Conf. Info." a very deferential vein," he says. "The "The individual who told me this On Sept. 12, 2010, he revealed his said that if I ever wrote about it, he baseline here is so deferential that we're findings in an article, "Photographer talking about relatively marginal moves would deny it," says Perrusquia. "WithErnest Withers doubled as FBI inforon either side of that baseline." ers wasn't going to talk about it, and I mant to spy on civil rights movement." just tucked my notes away and forgot Many FOIA experts say that recent wins this year in these areas - includThe article detailed what Perrusquia about it." ing Perrusquia's - are the product of had discovered about Withers's role as Then, in 2007, Withers died. Hoping an unusual, yet more ideal, level of ju"a prolific informant" who provided that any privacy interests would have dicial review. Some say these cases are the FBI with "tips and photographs diminished with his death, Perrusquia
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but is too rarely seen. detailing an insider's view of politics, "Normally, it would be a very difbusiness and everyday life in Memphis' ficult case to win," says Lesar. black community." The U.S. Department ofJustice deIn November 2010, Perrusquia sued clined to comment on the case. 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 Chuck Tobin David McCraw that when a third party requests informant records from a criminal law In April, Lesar, too, won a favorable enforcement agency using the inforcourt order in a FOIA case dealing with access to law enforcement records. mant's name or personal identifier, it "may treat the records as not subject to He represented journalist George the requirements of [FOIA] unless the Lardner in seeking access to records reinformant's status as an informant has lating to various members of a Chicago been officially confirmed." crime family. While the court rejected Lardner's challenges to the adequacy of The coUrt, however, held the FBI had twice "officially confirmed" Withers' the agency's search for records, it ordered the FBI to reprocess all of the reinformant status, first by releasing it to Perrusquia in response to his FOIA sponsive records for possible additional non-exempt and releasable portions. request, and again by attaching the Lardner pointed out that in compildocuments as exhibits to the motion ing and submitting its Vaughn index - a for summary judgment it filed in the type of affidavit that lists and explains case last year. In response to the FBI's claims that an agency's withholding of documents "the terms in the records that were - the agency released additional inreleased - 'Ernest Withers, CI,' 'ME formation from 219 of the 289 docu338-R' and 'Conf. Info.' - do not ments listed. While the agency argued signify that Withers was a confidential that these were merely discretionary informant," the court stated that "[t] releases, rather than the result of "pure his argument is not worthy of serious error," Lardner argued that this was due consideration and it insults the comto improper processing of his request, mon sense of anyone who reads the at an impermissible error rate of 76 documents." percent. The court agreed. "I remember the judge said in one "The defendants' Vaughn index of the hearings 'you might not want is, in a word, inadequate," the court to officially acknowledge that you've held. "The FBI provides no additional justification ... as to why these docuconfirmed him as an informant, but you've officially confirmed him,'" says ments were suddenly deemed proper Perrusquia. for release." According to attorney Chuck Tobin, The U.S. Attorney's Office declined to comment on the case because the who represented Perrusquia and his newspaper in the case, this is only the litigation is still ongoing. Requiring specificity in such docusecond case in which a court has held ments is important for both judges and that the FBI's actions constituted "official confirmation." requesters in FOIA litigation, writes Meredith Fuchs, former vice president FOIA experts praised the ruling as one that reflects the type of judicial and general counsel of the National scrutiny that should be applied against Security Archive, in her 2006 article, other claims of law enforcement harms, "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 AdministTative 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 Kwk 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 tlle 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
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agency's claim that a FOIA exemption to agency affidavits regarding classified applies de novo, giving a fresh look to the records. facts and the law, and with no deference "Not only do courts give substantial due to the agency's decisions. weight to the executive's claims someHowever, in the national security thing should be withheld, but rarely context, the government's burden to look at the documents themselves in defend a withholding was "a light one." many cases," says Pozen. "Courts have consistently deferred "Deference to the agencies on nato executive affidavits predicting harm tional security matters has become the to national security," the norm," agrees Steven court explained. ThereAftergood, director of fore, while the governthe Federation of Ameriment would be required can Scientists Project on to "submit declarations Government Secrecy, a with the 'reasonable specnon-profit organization ificity' needed to facilitate - that advocates for openmeaningful review," it ness in national security could omit from such matters. documents any "factual Another of the "ocdescriptions that if made casional exceptions" to this norm, according to public would compromise the secret nature of the Aftergood, is the Februinformation." ary ruling in Center f01' Where the governInte1'national Environment withholds descripmental Law v. Office of tions of the document, the u.s. Trade RepresenMcCraw says a litigant Steven Aftergood tative. A district court has "no idea what arguordered the U.S. Trade ment is being made, and what facts are Representative to release a document being presented to the court." it claimed was classified, holding that "That's one of those areas where the agency had not provided a "logical" we're totally dependent on the judge explanation for how release could harm to make sure that is not abused, that foreign affairs. "That case makes your heart pound," what's being put in as classified is truly classified," he says. says Aftergood. "[The judge] said 'wait a minute - that's illogical,' and that is so Fortunately, the judge did agree to review the classified document priunusual that one reads the decision with vately in chambers to assess the agency's a sense of exhilaration." The case involved the government's claims that it was properly classified and that no non-exempt portions could be attempt to withhold a one-page paper that set forth the United released. States' initial proposed inHowever, as the opinion noted, such terpretation of the phrase review "is considered the exception, not the rule." "in like circumstances" for "1 think generally, judges held FOIA use in negotiations of the requesters to a fairly high standard Free Trade Agreement of before they say in camera review is the Americas in the 1990s required," says McCraw. "Judges are and 2000s. reluctant to do it." While the court ultiDuring the negotiations, mately ruled against the Times, McCraw the participating nations says one positive aspect of the case was agreed that confidential negotiating documents would that the ju~ge was willing to conduct in camera reVIew. not be publicly released "Without seeing the document," he until Dec. 31, 2013, "unless David Pozen says, "we can never say for sure that the a country were to object judge made 'the right decision." Howto the release of one of its ever, knowing that a neutral decision own documents at that time." Citing maker viewed the report "was the right the confidentiality agreement, the trade outcome in terms of at least not having office withheld the document as clasto simply rely on the government's assified, claiming that the "loss of trust" sertion," says McCraw. resulting from its release would damage Such review, experts say, can be its foreign relations with other nations in difficult to obtain, as courts have tratrade-related matters. Further, it argued ditionally given "substantial weight" that it would lose flexibility in subsequent
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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 ofheightened 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 oftransparency." 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.
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