Case 1:10-cv-01878-ABJ Document 33

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MEMPHIS PUBLISHING COMPANY, publisher of The Commercial Appeal and MARC PERRUSQUIA 495 Union Avenue, Memphis, TN 38103 Plaintiffs, v. FEDERAL BUREAU OF INVESTIGATION 935 Pennsylvania Avenue, N.W. Washington, D.C. 20535 Defendant. Case No.: l:10-cv-01878-ABJ Judge Amy Berman Jackson

PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION TO RECONSIDER

Plaintiffs Memphis Publishing Company and Marc Perrusquia ("Plaintiffs") submit this Opposition to Defendant the Federal Bureau of Investigation's ("FBI") Motion to Reconsider on the Basis of Ex Parte, In Camera Declaration ("Motion to Reconsider"). The FBI presents no meaningful, substantive argument in the Motion to Reconsider itself as to why this Court should revisit its well-reasoned January 31, 2012 decision. Instead, the FBI simply informs the Court and opposing counsel that the supplemental declaration is necessary to "address the assumptions on which the Court based its decision." Dkt. 32 at 4. Contrary to this

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inappropriate assertion, the Court did not base its decision on "assumptions." Instead, the Court carefully reviewed the record presented by the FBI and the filings of its counsel at the Department of Justice and reached its ruling after the benefit of a thorough oral argument. Additionally, the FBI has ignored this Court's decision to decline the Bureau's previous offer to submit this ex parte declaration, has now filed it without leave, and rests its entire motion on that secret document. The Court should not now consider this belated submission, which clearly contains material that was previously available to the FBI during the six months this Court had the Plaintiffs' Motion to Compel under consideration, and which the Court inquired about at the October 4, 2011 hearing. Finally, the FBI seeks to simply add to its public declaration testimony as to the circumstances of the release of information officially confirming Ernest Withers' ("Withers") identity as a racial informant. The Plaintiffs therefore strenuously object to this ex parte augmentation of the public record of these proceedings. In addition to denying reconsideration, the Court should unseal and release the entire document consistent with the First Amendment and common law precedent governing access to Court records. I. A MOTION TO RECONSIDER AN INTERLOCUTORY ORDER SHOULD BE GRANTED ONLY AS "JUSTICE REQUIRES." A district court should not exercise its discretion to revise interlocutory orders under Fed.R.Civ.P. 54(b) unless "justice requires." Cobell v. Norton, 224 F.R.D. 266, 272 (D.D.C.2004)).' "Justice requires" a court to reconsider orders only when "[it] patently

misunderstood the parties, made a decision beyond the adversarial issues presented, made an

Although the FBI points to Rule 54, 59, and 60 as the basis for its Motion for Reconsideration, Rule 54 sets forth the governing standard for reconsideration of interlocutory orders. See Cobell v. Norton, 224 F.R.D. 266, 271-72 (D.D.C. 2004) 2
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error in failing to consider controlling decisions or data, or whether a controlling or significant change in the law has occurred." In Def. of Animals v. Nat'l Inst, of Health, 543 F.Supp.2d 70, 75 (D.D.C.2008) (internal citation and quotation marks omitted). More specifically, a motion to reconsider should not be granted unless the movant presents either evidence newly discovered after entry or the order or errors of law or fact which need correction. See Cuban v. Securities and Exchange Commission, 795 F.Supp. 2d 43, 48 (D.D.C. 2011); see also Bolden v. Ashcroft, 515 F.Supp.2d 127, 135 (D.D.C.2007) ("On review of an interlocutory order, the Court generally will deny a motion for reconsideration unless the moving party can point to 'controlling decisions or data that the court overlooked-matters, in other words, that might reasonably be expected to alter the conclusion reached by the Court.'" Id. (internal citations omitted)). A motion to reconsider does not provide a party with another bite at the same apple it has nibbled on for months, which is precisely what the FBI seeks here. The court's discretion under Rule 54(b) is "subject to the caveat that, where litigants have once battled for the court's decision, they should neither be required, nor without good reason permitted, to battle for it again." Singh v. George Washington University, 383 F.Supp.2d 99, 101 (D.D.C. 2005) (internal citations omitted). Here, the FBI provides no argument in its Motion to Reconsider. Instead, it cites

boilerplate reconsideration law, tells the Court that "reconsideration is warranted here in order to supplement the information and address the assumptions on which the Court based its decision," Dkt. 32 at 4, and with no guidance as to how to apply it, submits a belated, secret declaration that merely supplements the record with old information. On its face, the Motion to Reconsider therefore presents no grounds for reconsideration under Rule 54(b) and should be denied outright.
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II.

THE COURT MADE CAREFUL FINDINGS, NOT "ASSUMPTIONS," THAT THE FBI'S DISCLOSURE TO THE COMMERCIAL APPEAL AND ITS FILINGS IN THIS LAWSUIT CONSTITUTED "OFFICIAL CONFIRMATION." The FBI glosses over the Court's detailed findings regarding the circumstances of the

FBI's "official confirmation" of Withers' status as a confidential informant. In particular, the Court noted that no remedial steps were taken following the FBI's first disclosure of documents to the Commercial Appeal that identified Withers as a confidential informant. See Memphis Publishing Company v. F.B.I.,_ F.Supp.2d _ , 2012 WL 269900, *11-12. The Court also noted that the FBI, through Department of Justice counsel, produced these documents a second time as attachments to its publicly filed motion for summary judgment. Id. at *12. See Declaration of Dennis Argall, Dkt. 14-4 at Ex. X. As the Court noted at the hearing in this matter, in response to FBI counsel's claim that the disclosures were "inadvertent": Well, how can I put so much stock in the sentence in the declaration that says it was inadvertent when you reattach the very same documents (in the FBI's public summary judgment motion) with even more detailed information added to them to the same declaration? So you basically gave them to the plaintiff not once, but twice, the second time with more detail. How do I square that with the conclusory statement this is inadvertent? Hearing Tr. 37: 18-23, Oct. 4, 2011. Further, any additional testimony regarding the circumstances of the initial FBI disclosure would not help the Court. The Court in its ruling specifically noted that the statutory language of Exclusion (c)(2)'s "official confirmation" provision does not require a showing of intent. Memphis Publishing Company v. F.B.I.,2012 WL 269900, * 11. Instead, the Court held that the FBI's disclosure of the documents confirmed Withers' status as a confidential informant because the documents "serve to corroborate, verify, and add new assurance to the validity of the assertion that Mr. Withers functioned as a confidential informant for the FBI." Id. at * 11. The

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Court therefore correctly determined, and nowhere does the Motion to Reconsider challenge, that even an allegedly "inadvertent" disclosure may serve as "official confirmation" under the statute. Therefore, any further testimony regarding the circumstances of the initial disclosure ~ or, for that matter, the FBI and counsel's decision on what documents to attach to their summary judgment motion ~ would be irrelevant. Where a court has not misunderstood the arguments or the evidence, it should deny a motion to reconsider. See Cobell v. Norton, 224 F.R.D. 266 (D.D.C. 2004)(denying reconsideration where reasoning of the court's initial order addressed the arguments and evidence presented in the motion for reconsideration). The reasoning in the Court's January 31, 2012 opinion fully addressed all of the FBI's arguments, and the FBI has failed to show that the Court has misunderstood either the arguments or the evidence before it. Accordingly, the FBI's Motion to Reconsider should be denied. III. SUPPLEMENTING THE FACTS IN THE RECORD IS NOT AN APPROPRIATE BASIS FOR A MOTION TO RECONSIDER. The FBI's Motion to Reconsider is based entirely on an ex parte, in camera declaration that contains information about events occurring prior to the Court's consideration of this issue, and that therefore have been available to the FBI for quite some time. The Court should decline to permit the FBI to "supplement the information," Dkt. 32 at 4, that the Court considered in deciding the Plaintiffs Motion to Compel Production of a Vaughn Index ("Motion to Compel"). Indeed, following argument on the Motion to Compel, the FBI asked the Court to invite the Bureau to submit an ex parte declaration to address the circumstances of the disclosures. See Dkt. 23 at fn.3. The Court clearly did not believe the addition information was necessary to its determination then. It is equally unnecessary, and it is entirely unwarranted, at this late date.

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In United Mine Workers of America 1974 Pension Trust v. Pittston Company, 793 F.Supp. 339 (D.D.C. 1992)(a#W984 F.2d 469 (D.C.Cir. 1993), which the FBI relies on, see Dkt. 32 at 2-3, another court in this district denied a motion to reconsider based on evidence contained in supplemental declarations. Because the motion was grounded on evidence available to the movant all along, the court concluded that the decision to withhold the information was part of the party's litigation strategy, and the motion to reconsider was denied. Id. See also Negley v. FBI, __ F.Supp.2d _ , 2011 WL 3836461, *3 (D.D.C. Aug. 31, 201 l)("As is well established, a motion for reconsideration is not an opportunity to reargue facts and theories upon which the court has already ruled, or present theories or arguments that could have been advanced earlier."). Likewise, here, the FBI is simply disappointed with the outcome of its litigation strategy and inappropriately seeks to add old evidence to the record on issues already decided. The Court should deny reconsideration on the basis of this information. IV. UNDER THE FIRST AMENDMENT AND COMMON LAW RIGHT OF ACCESS TO JUDICIAL RECORDS, THE DECLARATION SHOULD BE UNSEALED AND RELEASED. To support the secret filing of its supplemental declaration, the FBI cites the inapposite precedent Lykins v. U.S. Department of Justice, 725 F.2d 1455, 1463-64 (D.C. Cir. 1984). See Dkt. 32 at 4. Lykins does not support the use of an ex parte, secret submission, which is contrary to the core purpose of FOIA and the proper functioning of the adversary system. Further, under the First Amendment and common law precedent governing access to Court records, the entire supplemental declaration should be unsealed and released. In other FOIA proceedings, the D.C. Circuit has made clear that a trial court should rarely permit the filing of in camera affidavits. See id. at 1465. See also Campbell v. Department of 6
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Health and Human Services, 682 F.2d 256, 265(D.C.Cir. 1982) ("This Court has expressed grave reservations regarding nonpublic government presentations absent sensitive national security concerns."); Yeager v. Drug Enforcement Agency, 678 F.2d 315, 323 (D.C.Cir. 1982) (questioning the appropriateness of an in camera review where the Court could discern no reason from the record for a non-public filing "other than the fact that the Agency simply did not want to reveal the nature of the information contained" in the records). Where the use of secret affidavits has been permitted, the D.C. Circuit has noted that such submissions are only permissible "if the interests of the adversary process are outweighed by other interests." Lykins, 725 F.2d at 1465 (citing Hoyden v. NSA, 608 F.2d 1381, 1384 (D.C. Cir. 1979)). In Lykins, the D.C. Circuit held that the in camera affidavit left the appellant with no opportunity to challenge the government's claim that documents were exempt from disclosure under FOIA, making it "impossible for the adversary system to function effectively in the District Court." Id. at 1465. Further, because there was no finding that the government had a crucial interest in secrecy that outweighed the importance of an effectively functioning adversary system, the "proper predicates for acceptance of in camera affidavits were not met." Id. at 1466. Therefore, the Circuit held that the District Court had erred in relying upon the in camera affidavits submitted. The courts in this district are especially mindful of the First Amendment and common law principles of access to court records. See Nixon v. Warner Communications, Inc., 435 U.S. 589, 597-99 (1978); In re Nat. Broadcasting Co., Inc., 653 F.2d 609 ( D.C. Cir. 1981) ("The existence of the common law right to inspect and copy judicial records is indisputable."); In re Guantanamo Bay Detainee Litigation, 624 F.Supp. 2d 27 (D.D.C. 2009) (recognizing right-ofpublic access to court documents under both the First Amendment and the common law).

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The D.C. Circuit has recognized that this right "serves the important function of ensuring the integrity of judicial proceedings in particular and of the law enforcement process more generally." In re Nat. Broadcasting Co., Inc., 653 F.2d at 612 (citing U.S. v. Hubbard, 650 F.2d 293, 314 (D.C. Cir. 1980)). Where the public's First Amendment right of access attaches to court documents, the court may seal them only if "essential to preserve higher values" and "narrowly tailored." See In re Guantanamo Bay Detainee Litigation, 624 F.Supp. 2d at 35 (prohibiting access to information was not essential to protecting national security). The right to inspect and copy judicial records should be denied only when those who object to the exercise of that right have "sustained (their) burden of demonstrating that justice required denying access to the court records." In re Nat. Broadcasting Co., Inc., 653 F.2d at 613. Here, the FBI has not demonstrated a need for secrecy that justifies its submission of an ex parte, secret declaration. The only basis the FBI provides for the ex parte submission is that the declaration states whether Ernest Withers served as a confidential informant for the FBI. See Dkt. 32 at 4. Under some circumstances, revealing a confidential source may justify a secret submission. See Lykins, 725 F.2d at 1464. But here. Withers' status as a confidential informant is publicly known,2 and this Court has already concluded that the FBI officially confirmed that Withers was a confidential informant. See Memphis Publishing Company v. F.B.I., 2012 WL 269900, *9-10. Therefore, the interest in further secrecy concerning this issue cannot outweigh the importance of an effectively functioning adversarial system, and the full supplemental

The Court in its decision considered and rejected the FBI's argument that there had been no official confirmation of Withers' status because "Withers' daughter has informed reporters that the documents do not convince her that her father served as an informant." Memphis Publishing Company v. F.B.I., 2012 WL 269900, * 10. Since the argument in this matter, however, Ms. Withers has publicly acknowledged that her father was a confidential informant. See Interview with Rosalind Withers (Dec. 5, 2011), available at http://travelingwithtwain.org/2011/12/05/memphistn/emest-withers-civil-rights-photographer-and-fbi-informant/. Further secrecy in this case is therefore especially unwarranted.

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declaration should be unsealed and released. See In re Guantanamo Bay Detainee Litigation, 624 F.Supp. 2d at 38 (prohibiting public access to information already in the public domain was not essential to achieve government's interest of protecting national security). In light of the historical importance of this material and the public interest in this matter and the FBI's failure to provide a compelling justification for sealing the material, Plaintiffs ask the Court to unseal and release the entire supplemental declaration. V. CONCLUSION The Court should deny the FBI's Motion to Reconsider because the FBI has failed to show that justice requires reconsideration of the January 31, 2012 decision; the Court has already considered the arguments raised by the FBI, and there is no need to add to the public declaration testimony already in the record. The Court further should unseal and release the entire supplemental declaration consistent with the First Amendment and the common law.

Alternatively, where in camera affidavits are permitted, courts have an obligation to "see to it that such use is justified to the greatest extent possible on the public record, and must then make available to the adverse party as much as possible of the in camera submission " See Lykins 725 F 2d at 1465 (internal citations omitted) Here, the only justification the FBI has provided for filing its supplemental declaration under seal is that the declaration references whether Withers was a confidential informant See Dkt 32 at 4 Although the FBI represents that the purpose of the declaration is to detail the circumstances of its disclosure, see Dkt 32 at 1, the FBI has provided no reason that information detailing the circumstances of its disclosure must be submitted ex parte and in camera Therefore, even if the Court determines an interest remains in shielding Withers' identity as a confidential informant, which the record in this case should not warrant, the portions of the declaration detailing the circumstances of the FBI's disclosure should be unsealed and released

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Dated: February 23, 2012

Respectfully Submitted,

HOLLAND & KNIGHT LLP Charles D. Tobin #455593 Christine N. Walz #996643 2099 Pennsylvania Ave., N.W., Suite 100 Washington, D.C. 20006 Telephone: (202) 955-3000 Facsimile: (202) 955-5564 Counsel for Plaintiffs Memphis Publishing Company and Marc Perrusquia

By:

/s/ Charles D. Tobin Charles D. Tobin

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