The Commercial Appeal reaches settlement with the FBI on informant lawsuit

The Commercial Appeal, the Scripps newspaper in Memphis, Tenn., has reached a final settlement with the FBI regarding its pursuit of records documenting Ernest Withers’ work as a federal informant during the civil rights era.

The agreement between the FBI and The Commercial Appeal allows the newspaper to access portions of 70 investigative files in which Withers participated as an informant.  In exchange for the settlement, the newspaper will drop its lawsuit against the government.  The agreement also allows the FBI to keep Withers informant file private.

“We’re very happy with the decision. We think it’s a big win for open government,” said Marc Perrusquia, reporter for the Commercial Appeal. “We think this will help us better understand what the FBI was doing monitoring the civil rights movement in Memphis and we’re expecting to get a lot of records and pictures that will illuminate this.”

Perrusquia has led the coverage on the exposure of Ernest Withers as an informant.

“We think this is a very unique resolution to our lawsuit,” said Perrusquia. “As far as we know, there isn’t another informant from the civil rights era that anyone has been able to penetrate as well as we have through FOIA. “

You can read more about what led to the lawsuit in an article published by Scripps News Online in 2012 here.

You can read the full Commercial Appeal article about the settlement and what it means here or continue reading below.

Settlement to unveil photos, records documenting Ernest Withers' work as FBI informant
By Marc Perrusquia

A legal settlement finalized Monday is expected to unveil dozens of photographs and records documenting the late Ernest Withers’ secret work as an FBI informant in Memphis during the civil rights era.

The agreement between the FBI and The Commercial Appeal allows the newspaper to access portions of 70 investigative files in which Withers participated as an informant.

Those 70 cases, ranging from the FBI’s investigation of Dr. Martin Luther King Jr. while in Memphis in 1968 as well as examinations of his Southern Christian Leadership Conference, the NAACP and the black power and peace movements here, represent a fraction of the celebrated photographer’s work for the FBI between 1958 and 1972.

The settlement also requires the FBI to pay $186,000 in attorney fees and legal costs the newspaper accumulated since filing suit in 2010. In turn, the newspaper agreed to drop its lawsuit, which it did Monday morning by filing a stipulation of dismissal in U.S. District Court in Washington.

The settlement, believed to be the first of its kind involving a civil rights era informant, is expected to provide a rare look inside the FBI’s domestic intelligence machine that kept a close eye on Black America in search of Communist and militant influences.

“This is a big win for the cause of open records and for civil rights in America for that matter,” said Chris Peck, editor of The Commercial Appeal. “After two years, hundreds of thousands of dollars in court costs, and many hours of reporting The Commercial Appeal has prevailed in its effort to get a more detailed picture of the extent of the spying and informing done in Memphis during Dr. King’s life and up until the time of his death.

“This settlement and the documents and records that will be released as a result of it, clearly will help Americans better understand the complicated role the FBI played in the Civil Rights era.”

Attorneys representing the Department of Justice did not immediately respond Monday to an email seeking comment.

The compromise allows the FBI to protect the integrity of its informant program by not opening sensitive portions of Withers’ informant file. Under the agreement, the National Archives and Records Administration will release Withers-related records from investigative case files and not from Withers’ informant file, which the FBI retains. The FBI maintains that releasing details on an informant, even a dead one, can chill its ability to recruit new informants who enter confidentiality agreements and expect their work to remain secret.

Withers died in 2007 at age 85.

“The agreement between The Commercial Appeal and the FBI is unprecedented and creative,” said Charles D. Tobin, the First Amendment lawyer with the Holland & Knight law firm in Washington, who represented the CA. “While the FBI will keep the confidential informant documents to itself as a distinct file, the release of the same documents through NARA will give the public wide swaths of information about what the government was up to with Withers.”

The arrangement means sensitive documents such as specific pay records and any instructions Withers received from agents to spy on activists will remain sealed.

As part of the settlement, the FBI is expected to release a terse statement reporting the total dollar amount agents were authorized to pay Withers for his work.

Notoriously tight-fisted, the FBI paid its informants sparingly -- the vast majority got nothing. Though the FBI’s Memphis field office had scores of informants reporting on “racial” matters and civil unrest here in 1968, records show only five of those informants were paid.

The newspaper sued the FBI in November 2010 seeking Withers’ informant file following a series of investigative reports it published that fall revealing elements of his work with the agency. The newspaper found that Withers had operated under a code number, ME 338-R, to help the FBI monitor the 1968 sanitation workers strike as well as the Invaders, a militant, black power group.

The FBI initially refused to confirm or deny that Withers had been an informant, but federal Judge Amy Berman Jackson of the District of Columbia ruled in 2012 that the bureau had inadvertently identified Withers as an informant in records and ordered officials to release non-exempt materials from Withers’ file.

The FBI responded by releasing hundreds of pages from Withers’ so-called “170 file,” an archaic designation for an “extremist informant,” or one reporting on groups and individuals with extremist views. Many of those records involved newspaper clippings the FBI kept on Withers and his family through the 1960s.

The records released last summer include some recruitment papers, too. They indicate agents first attempted to recruit Withers in 1958. Those papers indicate Withers operated as a “confidential source” through much of the 60s and that he began operating under a code number, ME 338-R, around 1968 as the sanitation strike broke out and the local civil rights movement took on a previously unseen militant tone. A designation such as ME 338-R, known as a source symbol number, is typically assigned to informants who are paid, work frequently and are controlled by agents with assignments.

Despite the release, the FBI signaled last fall that it would continue to fight the newspaper’s efforts to open Withers’ full file. Then in September, at Jackson’s urging, the parties agreed to enter mediation to attempt to settle the suit. That resulted in Monday’s deal.

Under the deal, the newspaper will select 70 case files from a confidential list. NARA will release portions of those files relating to Withers on a rolling basis over the next two years.