From the Hotline

From the Fall 2003 issue of The News Media & The Law, page 5.

Q: Journalists would like to assure their sources that when they give out information about the government they can withstand prosecution. How safe are reporters’ government sources when they provide information to the news media, and what can reporters tell government employees who have stories to tell?

A: A whistleblower’s safety depends primarily on a reporter’s efforts to protect confidentiality, and to establish a spotlight that facilitates public solidarity if and when anonymity no longer is possible.

Independent of journalist privileges, whistleblowers have the legal right to speak with reporters to dissent against abuses of power that betray the public trust. But these legal rights are far more tenuous than a reporter’s privilege, and they often create more victims than they help.

A whistleblower’s safety depends on factors such as the following: the reporter’s sensitivity and extra effort through coordination to make sure identifying information isn’t casually released; the reporter’s aggressive questioning of potential bullies about consequences for anyone who has been exposed as exercising free speech rights; and follow-up stories spotlighting any threats or subsequent harassment, so there is a chance for public solidarity against politicians, regulatory officials and constituencies who attempt to benefit from the whistleblower’s disclosures.

Tom Devine is the legal director of the Government Accountability Project, which specializes in whistleblower protection.

A: How safe reporters’ government sources are when they provide information to the news media very much depends on what kind of information the government source wants to disclose.

In reaction to the terrorist attacks of Sept. 11, government secrecy is on the rise. More and more information is stamped “classified” or “top-secret.” Agencies such as the FBI and CIA also require employees to sign nondisclosure agreements, which require agency approval before disclosing virtually any information.

While reporters can be depended upon not to reveal their confidential sources, that won’t stop the government from trying to identify the source. Frequently, the government launches a press “leak” investigation. Failing to answer questions in a leak probe can result in termination of government employment. But answering such questions can also land the government employee in trouble.

It is one thing to lose a job. It is quite another to face the threat of criminal prosecution for leaking classified information, or lying. Such investigations can also turn into a witch hunt.

Several years ago, when the FBI realized a whistleblower’s allegations were about to be validated, the FBI accused the employee of leaking information to the press. Not surprisingly, the FBI used the leak probe to harass and retaliate against the whistleblower.

If a government source has a good story to tell, but the source is afraid of retaliation, both journalists and sources should educate themselves on the subject. For example, the National Whistleblower Center offers a wide range of information on its Web site (www.whistleblowers.org), including attorney referrals and publications. In addition, government sources can confidentially obtain legal advice and other assistance to guide them through the legal minefield.

With proper planning and strategy, most government sources should be able to tell their stories and avoid legal jeopardy.

David K. Colapinto is a partner in the Washington, D.C. law firm of Kohn, Kohn & Colapinto, LLP, which specializes in representing whistleblowers.

Q: I am a newspaper reporter planning to interview a source, but he wants me to sign an agreement he wrote stating that I will not break my promise of confidentiality. I need to interview the source for a story. What should I be aware of when I review the contract?

A: First of all, it’s a good idea to have your newspaper’s in-house counsel review the contract and examine its provisions. One question to ask as you read the contract is: Does the contract entitle the source to money damages if a promise of confidentiality is broken in any way?

The most important issue you need to look out for is what the contract says about your responsibilities if you are faced with a subpoena to reveal the source. Does the contract specify that you must bring a motion to quash the subpoena? Are you obligated to appeal a denial of the motion to quash? Are you obliged to go to jail to protect the source’s confidentiality?

The contract should make very clear how far you are legally bound to go to protect the source’s confidentiality by explicitly stating which of the above actions you agree to take if you are subpoenaed to reveal the source.

Q: How common is it for courts to seal dockets or pleadings in federal criminal cases? Does the press have a right of access to such proceedings?

A: It appears to be increasingly common for courts to seal dockets and pleadings in federal criminal cases, usually in response to a motion by prosecutors. An Oct. 23 story in the St. Louis Post-Dispatch quoted an aide to Chief Judge Thomas Hogan, of the U.S. District Court in Washington, D.C., as estimating that “30 to 40 percent” of criminal cases in that court are filed under seal.

Depending on the particulars, such a practice may violate both the First Amendment and the Justice Department’s own guidelines for seeking or consenting to closure. The U.S. Supreme Court has made clear that the press and the general public have a qualified First Amendment right of access to criminal proceedings, including pretrial proceedings (Press-Enterprise Co. v. Superior Court). Where the right applies, a federal judge may close proceedings only after making specific, on-the-record findings to support closure.

Additionally, Justice Department guidelines state that government lawyers should generally seek or consent to the closure of judicial proceedings only when it is “plainly essential to the interests of justice.” Even then, the government lawyer must obtain the express authorization of the deputy attorney general or, in some cases, the associate attorney general (28 C.F.R. § 50.9). Although the guidelines are a policy statement, not a binding rule of law, they provide helpful ammunition for challenging a secrecy order in cases where the rules were not followed.