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Detroit reporter ordered to reveal confidential DOJ sources

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  1. Protecting Sources and Materials
 A Detroit Free Press reporter was ordered by a U.S. District Court judge last week to reveal the confidential sources…

 A Detroit Free Press reporter was ordered by a U.S. District Court judge last week to reveal the confidential sources he used to report about a prosecutor’s misconduct in a terrorism case.

The reporter, David Ashenfelter, wrote an article in 2004 quoting anonymous officials from the U.S. Department of Justice who alleged that former Assistant U.S. Attorney Richard Convertino was being investigated for misconduct as lead prosecutor in a Detroit terrorism case. Convertino responded to Ashenfelter’s article with a lawsuit against the Department of Justice, claiming that the Department violated the Privacy Act by leaking information about his job performance from his personnel files.

As Convertino’s case wound through the legal system, he attempted to learn the identity of Ashenfelter’s sources. After the investigation proved fruitless, Convertino filed a motion to compel Ashenfelter and the Detroit Free Press to reveal the identities of the DOJ officials.

Judge Robert Cleland in the U.S. District Court for the Eastern District of Michigan issued an opinion last week siding with Convertino and ordering Ashenfelter to give up his sources.  

Though Michigan has a state shield law, Cleland refused to apply it here, writing that the decision whether or not to compel Ashenfelter to reveal his sources had to be decided under federal law only. And under federal law, he opined, there is no First Amendment privilege protecting a reporter’s confidential sources recognized in the 6th Circuit.

“Such a privilege has been applied in civil actions by some federal circuit courts, which have concluded that the First Amendment’s protection of news-gathering activities mandates the extension, under certain circumstances, of a conditional privilege over the identity of reporters’ confidential sources,” Cleland wrote. “However, the Sixth Circuit has explicitly declined to recognize a qualified First Amendment privilege for reporters.”

Additionally, Cleland wrote that revealing the identity of Ashenfelter’s sources was crucial to the furtherance of Convertino’s case.

“As the DOJ points out in its brief, Convertino cannot sustain his burden of proof on the Privacy Act claim without identifying Ashenfelter’s source,” he wrote.

Meanwhile, Convertino was fired from the U.S. Attorney’s Office and in 2006 was indicted by a federal grand jury for concealing photographs and presenting false testimony during the terrorism trial. The terrorism case he prosecuted was also thrown out.