A U.S. District Court judge in Washington on July 28 handed down a ruling ordering the FBI to search for and release thousands of documents it initially said it could not find or declined to release that pertain to an anti-gay “purge” in the 1950s that resulted in the firing of thousands of gay federal employees.
Judge Royce C. Lamberth’s ruling came in response to a Freedom of Information Act lawsuit filed last year by the Mattachine Society of Washington, D.C., an LGBT rights group that called on the FBI to release all government documents in its possession generated by a 1953 executive order issued by President Dwight Eisenhower.
Known as Executive Order 10450, the order gave the FBI and federal agency heads the authority to investigate and dismiss federal employees linked to “sexual perversion.” Historians knowledgeable in LGBT history say that term was a pretext used to purge gays from the government.
Mattachine Society President Charles Francis said the group filed its lawsuit after the FBI balked at releasing and searching for thousands of documents the group requested in what the lawsuit says was a violation of the Freedom of Information Act.
In his ruling, Lamberth stated attorneys for the U.S. Department of Justice, which represented the FBI in court, argued that the FBI was able to track down 552 pages of documents it released to the Mattachine Society while it withheld an additional 583 documents on grounds that they were exempt from the Freedom of Information Act.
“The FBI’s response fails to demonstrate that their search was reasonably calculated to uncover all relevant documents,” Lamberth states in his ruling.
In bluntly worded language, Lamberth said it “strains credulity” that the FBI claimed it could not find any documents prepared by or pertaining to former U.S. Supreme Court Justice Warren Burger, who was in charge of carrying out Executive Order 10450 in the 1950s before Eisenhower appointed him to the Supreme Court.
“The Court finds it nearly impossible to believe that a search for every permutation of the name of the man who was charged with carrying out EOP 10450, the ‘overseer’ Warren Berger…yielded zero responsive documents,” Lamberth wrote in his ruling.
In his ruling Lamberth granted part of a motion by the Justice Department seeking summary judgment to withhold the release of a smaller collection of documents that Lamberth found to be exempt from the FOIA statute.
Lamberth’s ruling in favor of most of the Mattachine Society’s request for the documents came in the form of granting a cross motion for summary judgement filed on behalf of Mattachine by its pro bono attorneys with the law firm McDermott Will & Emery.
He ruled that for a large collection of documents that the FBI released in which names were redacted, the FBI would have to go back and replace the names with “alphanumeric markers, which are to be uniquely identifiable and consistent throughout all documents produced pursuant to this FOIA request.”
He added: “The parties are hereby ordered to meet and confer to determine appropriate terms for future searches. If the parties cannot agree to appropriate terms, plaintiffs may submit a proposed order with suggested terms to the court.”
Francis said Lamberth’s ruling would enable Mattachine Society to obtain most of the documents it believes exist as a result of the Eisenhower executive order.
“It is time for the government to release these historic FBI and DOJ documents that launched decades of discrimination against LGBT Americans,” Francis said. “Thousands of LGBT Americans were ruthlessly investigated, interrogated and fired because of this Order, and historians still do not know the full extent of its implementation and enforcement by such officials as then Assistant Attorney General [and later Chief Justice] Warren Burger,” Francis said.
DOJ spokesperson Nicole Navas Oxman told the Washington Blade the department would have no comment on what she called a “pending matter.” The DOJ has 60 days to inform the court whether it plans to appeal Lamberth’s ruling.