In a new light: FOIA and a photographer’s records

For Ernest Withers, taking pictures while marching in the Civil Rights Movement helped him document his experience, but a FOIA request from a Memphis Commercial Appeal reporter, inspired by an anonymous tip, revealed that Withers had another role during that turbulent time: federal informant. The reporter and assembled panelists will discuss Withers and FOIA’s role uncovering this hidden history at an event at the National Press Club next Thursday, October 10.

Withers, who had been a WWII veteran and one of Memphis’s first black police recruits before opening his own photography studio, used his access as a freelance photographer to get pictures. But records showed that he had also been relaying information to the Federal Bureau of Investigation from the 1950s into the 1970s; even after his death, the Bureau was reluctant to acknowledge his role. However, reporter Marc Perrusquia noticed that the Department of Justice had responded to a FOIA request by “carefully redacting references to informants – with one notable exception[:] a single reference to Withers’ informant number.” (For a summary of related coverage, see below.)

The Press Club announced: “The panel has particular resonance today. It comes on the 50th anniversary of Dr. Martin Luther King Jr.’s ‘I Have a Dream’ speech. It arrives on the heels of recent news about the government’s sweeping domestic surveillance operations. The discussion hopes to highlight the challenges public-affairs journalism faces as news organizations’ business models are under stress. The discussion will shed light not only on the government’s past surveillance practices but also on FOIA and the public’s right to know what its government is up to.”

We at SGI also note that Perrusquia’s work is part of our “FOIA Files” (#603), and that the agreement between the Commercial Appeal and the Justice Department, for further future releases, means that we will continue to learn more about what the government has done and is doing.

A sampling of coverage (see also the Commercial Appeal’s summary):

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House panel’s pointed letter to Justice sends impatient message on #FOIA

In a renewed and welcome spirit of bipartisanship, the Chairman and Ranking Member of the House Oversight and Government Reform Committee earlier this week sent a letter to the Justice Department’s Office of Information Policy (OIP) asking pointed questions about OIP’s actions to encourage agencies to comply with FOIA by reducing backlogs, reigning in the use of statutory exemptions and updating FOIA regulations.  We’re especially appreciative that Chairman Darrell Issa (R-Ca.) and Ranking Member Elijah Cummings (D-Md.) mentioned a database of the statutory exemptions to FOIA that we compiled and ProPublica published a while ago.

This is a great time for FOIA because so much has evolved since Congress enacted the 2007 FOIA amendments (pdf) five years ago. FOIA Online is now a realistic option for agencies to go digital with their FOIA operations while realizing huge savings for the federal government, an important aspect to getting any legislation through Congress.

Congress could mandate that agencies move to FOIA Online as their current contracts for FOIA processing expire, invest the savings from the move to a shared service to improving FOIA.  Improvements could include developing further the FOIA Online system, targeting efforts to improve FOIA processing and reduce backlogs and delays, and quickly convening a FOIA Delays Commission to compile and identify other areas for improvements.

There are many problems with FOIA administration today and many areas for improvement.  Some require executive branch action while others would require legislation.  Any legislative actions around FOIA will have attract the support of Senate and House leaders, a growing number of whom want to see the Freedom of Information Act inform the American public while protecting what deserves protection and serve as a dependable tool for obtaining from government vital information in a timely, efficient and impartial manner.

Intel Committee’s anti-leaks proposals a threat to think tanks & public discourse

Think tanks could have a hard time finding experts able to contribute to policy debates if anti-leaks proposals now before the Senate are enacted into law.  These proposals are ill-considered, relatively unvetted, vague, overreaching (and under-reaching at the same time) and require significant further consideration by Congress before moving forward, much less passage.  We hope that think tanks will join those already seeking the removal of Title V from the Intelligence Authorization Act for Fiscal Year 2013 (S. 3454).

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Spring cleaning for b(3) provisions

Spring is a time of growth, change, and ritual; for the openness community, that means Sunshine Week, the release of agency annual FOIA reports, and fresh hope that this year will bring more transparency from the federal government.

Specifically, this year’s FOIA reports detail the use of several new b(3) provisions:

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Fixing FOIA: Commentators reacting to DOJ’s reversal

The reaction was swift when the Justice Department confirmed in a letter to Senators Charles Grassley and Patrick Leahy that they would not move forward with their plan to say documents don’t exist when, in fact, they do.  You can read the reaction through a simple Google search.

FOIA: The truth laces up its shoes

Imagine you’re in a bar and the guy next to you starts impressing a crowd with stories of battlefield bravery and military decorations. Only you know he’s faking. How could you prove it? It’s not far-fetched: California water official Xavier Alvarez claimed to be a Marine who retired with twenty-five years of service and a Congressional Medal of Honor for getting “wounded many times by the same guy” – but listeners had no way to know whether he was being honest.

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Better late than never: grand jury material of historical value

Grand jury information is one of the most sought-after types of information that the public cannot see generally under the federal FOIA. Think spies, organized crime, and sports stars accused of cheating through performance-enhancing drugs. So it is welcome to see the Justice Department recently announce a move to open the door on grand juries to the public just a little more.

American laws and courts have long recognized that grand jury information merits secrecy, but several recent cases developing a “historical significance” exception have led the Department of Justice to propose codifying the terms under which courts may release such material. Traditionally, grand jury information has been protected – indefinitely – by Rule 6(e) of the Federal Rules of Criminal Procedure, which provides five specific exceptions. Rule 6(e) is of interest to us because it is one of the most widely- and frequently-used statutory exemptions to the Freedom of Information Act (FOIA), called a “b(3)” after the subsection of FOIA permitting such additional exemptions.

In an October 19 letter, Attorney General Eric Holder recognized that litigants had won the release of grand jury information regarding several cases of historical significance: the Alger Hiss case (released in 1999), the trial of Julius and Ethel Rosenberg (2008), a 1964 jury-tampering prosecution of Jimmy Hoffa (Sr.) (2009), and testimony from ex-President Richard M. Nixon in a 1975 case involving Watergate (2011).

Here’s the problem: As Holder noted, none of these releases fell under any of the existing exemptions to secrecy under Rule 6(e). So, whether the courts will release grand jury information has become entirely unpredictable, based solely on the terms of the statute. To provide more clarity, Holder proposes to permit disclosure after thirty years – under certain conditions – and require disclosure after seventy-five years. (As Steve Aftergood noted, the thirty-year time period proposed dovetails neatly with the disclosures already ordered by courts.)

While the substance of this issue might not be a central concern of ours at SGI, it does involve several issues of interest to us:

  • We are pleased to see courts and DOJ in preliminary agreement that an open-ended rule conferring secrecy can be weighed against the public interest in government-held information of historical significance.
  • We are glad that the OPEN Government Act of 2007 amended FOIA to require agencies to provide more detailed information about their usage of each b(3) exemption statute, which enables us to gauge the importance of provisions such as Rule 6(e).
  • We are also glad to see more public attention to, and consideration of, records of historical significance – and efforts to obtain information that can help us understand more about our nation and our history.

By the way, if anyone has run into a Rule 6(e)-based FOIA denial that seems unwarranted, drop us a line.

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