Ninth Circuit Decision Adopted in D.C. District Court

Leonard's Ninth Circuit FOIA decision has spread to other circuits, opening the door for media and public interest groups to examine informant records. A D.C. district court has adopted the 9th Circuit decision in Pickard v. DOJ in a case involving FBI practices in the civil rights era. See Google Alert version, discussing Leonard's FOIA request for Skinner's records, below:

(see http://www.commercialappeal.com/news/2012/mar/12/ruling-could-clear-path-to-withers-file/)

Ruling could clear path to Withers' file
FBI fights 'breakthrough' decision to release info
By Marc Perrusquia
Memphis Commercial Appeal

Posted March 12, 2012 at midnight

Ernest Withers lived life on the edge, skirmishing in the front lines of civil rights battles, serving a stint in prison, and shooting great photographic records of Negro League baseball and the gritty blues scene on Beale Street.

Now, five years after the legendary Memphis photographer's death, a legal fight over FBI files that detail another facet -- his secret life as an informant reporting on the civil rights movement -- is generating its own story line.

When U.S. Dist. Judge Amy Berman Jackson ruled Jan. 31 in favor of The Commercial Appeal, culminating a four-year legal fight, it marked what lawyers believe is just the second time a court agreed to open an informant's file under a process called official confirmation.

The Department of Justice has asked Jackson to reconsider her ruling. And in a separate motion filed earlier this month, the FBI also asked for a 60-day stay for officials to evaluate a possible appeal.

Jackson, a first-year trial judge in the U.S. District Court in Washington, D.C., hasn't ruled on either request, but she decided Friday to postpone a March 16 deadline for the FBI to produce a first round of records.

To survive, her January ruling may have to overcome the great weight of law and tradition that protects the identity and dealings of informants. Despite similar historically significant court rulings, such as the unsealing last year of President Richard Nixon's grand jury testimony, transparency advocates say the newspaper may still face a contentious fight.

"Unfortunately, we don't see (favorable court decisions) happening on a broad basis," said Allison M. Zieve, litigation director for Public Citizen, a Washington-based nonprofit that sued to open Nixon's secret testimony taken in 1975 during the height of the Watergate scandal.

"If (judges) don't feel the government is just really over-reaching, they're inclined to pull for the government. They err on that side."

Most of what's known about civil rights-era informants didn't come from Freedom of Information lawsuits, but from the period's political fallout.

Details about James Harrison, the Southern Christian Leadership conference accountant paid by the FBI to inform on Dr. Martin Luther King Jr., and Gary Thomas Rowe, an FBI informant who infiltrated the Ku Klux Klan and was in a car with activist Viola Liuzzo when she was murdered in 1965, dribbled out during 1970s congressional investigations of FBI abuses.

"This is significant. This is unusual," historian David Garrow said of the Withers decision.

"This is a breakthrough. But at least for the moment it's a limited breakthrough. It may have application to other historically important cases. But it may be a case-by-case fight."

It was only last year that legal footing was gained to give rise to Jackson's decision on Withers. And it came from a very unlikely source.

William Leonard Pickard, a federal inmate serving a life sentence for trafficking LSD, had sued the Drug Enforcement Administration hoping to learn more about the credibility of an informant who helped put him behind bars.

A trial judge initially rejected Pickard's Freedom of Information suit, but last July, the Ninth Circuit Court of Appeals in San Francisco reversed it.

The appeals court determined that because DEA agents testified at Pickard's trial about the identity and activities of confidential informant Gordon Todd Skinner, the government had "officially confirmed" Skinner as an informant and his file was subject to the Freedom of Information Act.

Similarly in the Withers case, the FBI cites a 1986 statute that says information about an informant isn't releasable under FOIA unless the government first "officially confirms" an individual as an informant.

The FBI says it hasn't done that. It still refuses to confirm or deny Withers was an informant, despite a large amount of published information, including the handwritten notes of his FBI handler, the late agent William H. Lawrence, saved by the agent's daughter and given to the newspaper.

The FBI argues that releasing information on any informant, even deceased, would have a chilling effect on its ability to recruit new informants.

But Judge Jackson determined the FBI officially confirmed Withers when it released a 1977 report identifying him by his informant code number, ME 338-R. The FBI released the report twice, first in 2009 in answer to a FOIA request by the newspaper and again last year, this time with additional details.

The Ninth Circuit opined that official confirmation doesn't require a press release or "that the director of a federal law enforcement agency personally identify the informant." Because the statute didn't define official confirmation, it must be interpreted by its "plain language" in a way that leads to a "rational common-sense result."

The newspaper's attorneys believe the Pickard and Withers cases are the only instances in which a court has officially confirmed an informant. Even with that, under Jackson's ruling the newspaper would first get only an index of Withers' file. The FBI could still then redact swaths of information citing privacy and other exemptions.

Public Citizens' Zieve said court decisions vary widely and it helped in the Nixon case to have a judge who appreciated historical importance.

In her Withers decision, Jackson cited language from an earlier case, saying the "undisputed historical interest in the requested records ... far outweigh the need to maintain the secrecy of the records." Because the case involves no ongoing criminal probe, Jackson said she's "confident that the ruling will not have the chilling effect feared by the FBI."