Privacy Act cases may be the biggest threat forcing reporters to reveal their confidential sources.
From the Fall 2005 issue of The News Media & The Law, page 16.
By Casey Murray
There’s plenty $500 a day can buy. In the courts, where journalism and the law frequently collide, prosecutors and plaintiff’s attorneys increasingly are hoping such a sum compels reporters to reveal their sources.
In Washington, D.C., fines might top $1 million total for five reporters from four news organizations who were ordered by a federal judge in August 2004 to pay $500 a day for refusing to name their confidential sources. The fines were stayed pending appeal.
The judge applied these fees to a case brought under the Privacy Act, which more and more is being used to go after journalists who report on governmental affairs. Here, the plaintiff, Los Alamos nuclear scientist Wen Ho Lee, is using the act to seek the identity of government sources he says he needs to prove his Privacy Act claim against the government. The act has also been used recently by Linda Tripp and Steven Hatfill.
When a journalist sits in jail — as New York Times reporter Judith Miller did for nearly three months — there is often little effect on the company’s bottom line. But a $500-a-day fine against a reporter gets a company’s attention. It already has the attention of some editors.
“This is uncharted territory,” said Andy Alexander, Washington bureau chief for Cox Newspapers and chairman of the Freedom of Information Committee for the American Society of Newspaper Editors. “After the decision in the Lee case, plaintiff’s attorneys are going to be emboldened. They see an entirely different route to getting at reporters’ notes.”
By using the Privacy Act, Lee has chosen a path that represents a serious threat to the reporter’s privilege. In cases from California to Washington, D.C., federal courts are interpreting the act in a way that eviscerates the privilege.
“The ramifications of criminalizing the dissemination of this information is breathtaking,” said attorney Lee Levine of Levine Sullivan Koch & Schulz, who represents two of the five journalists in Lee v. Department of Justice.
Lee, who was indicted on 59 counts of mishandling computer files in an espionage investigation at a New Mexico nuclear laboratory, pleaded guilty to one count in 1999 while the government dismissed the other 58.
Lee then sued the Department of Energy, the Department of Justice and the FBI under the Privacy Act, claiming the agencies disclosed personal information about him to the media. After most of the government defendants cited privilege and refused to answer questions during Lee’s discovery, he subpoenaed reporters Jeff Gerth and James Risen of The New York Times, Josef Hebert of The Associated Press, Bob Drogin of The Los Angeles Times, and Pierre Thomas, formerly of CNN and now with ABC News.
Each reporter refused to reveal his source, claiming the protection of the reporter’s privilege. U.S. District Judge Thomas P. Jackson held them in contempt, fining each $500 per day. Lee also subpoenaed a sixth reporter, Walter Pincus of The Washington Post, who was held in contempt and has appealed separately. His case was argued in August in U.S. District Court in Washington, D.C., but the judge has not yet ruled. The other reporters have filed a petition for rehearing in the appellate court and await a decision.
The fining of reporters has some in the news business worried, Alexander said.
“Not enough editors are concerned about this,” he said. “It’s a huge problem lurking on the horizon and just now entering people’s consciousness. Imagine a small newspaper getting hit with fines of $1,000 a day. They’d be out of business quickly. It puts tremendous pressure on the media.”
The concern grew on July 28 when the U.S. Court of Appeals in Washington, D.C., ruled that the journalists’ privilege is outweighed by Lee’s interest in compelling disclosure. (The court threw out the contempt citations against Gerth because he testified under oath that he had no confidential sources regarding Lee and did not know the identity of confidential sources who provided information about Lee for articles Gerth co-wrote with Risen for The New York Times.)
In regard to the other four journalists, Judge David B. Sentelle found for the unanimous three-judge panel that “the protections of the Privacy Act do not disappear when the illegally disclosed information is leaked to a journalist, no matter how newsworthy the government official may feel the information is.” The journalists await a decision on their motion for a rehearing before either the panel or the entire appellate court.
The ruling gives plaintiffs and prosecutors an avenue for using the Privacy Act to prevent reporters from protecting sources under the reporter’s privilege if the plaintiffs can show they need the information for their case.
“It’s a very tough situation for a reporter to be in when they rely on information flowing to them from undisclosed sources,” said attorney Alonzo Wickers IV of Davis Wright Tremaine, who worked on Wright v. FBI. In that case, the U.S. District Court for the Central District of California in Los Angeles quashed a subpoena against freelance journalist James Crogan, ruling on June 10 that Robert G. Wright had not done enough discovery of others who might have known the source of the leak before he deposed Crogan. The case arose after Wright sued the FBI and the Department of Justice claiming that Special Agent Royden Rice leaked private information about Wright to Crogan.
“Cases like this can have a chilling effect,” Wickers said. “This certainly seems to be an area where people have realized they can penetrate reporter’s privilege more easily. It may be the chilling effect is exactly what they’re looking for.”
While it now is stemming the flow of information, the Privacy Act was originally intended for an entirely different purpose.
“There’s no question the Privacy Act has been used creatively by plaintiffs to go after investigatory leaks,” said attorney Kevin Baine of Williams & Connolly. “It’s fair to say no one at the time thought they were creating another cause of action, but now people can invoke the language of the Privacy Act that has spawned a series of subpoenas to reporters. This creative use goes beyond what anybody intended when it was passed.”
In Sentelle’s ruling in the Lee case, he wrote that the Privacy Act “provides a private right of action against a government agency when records pertaining to an individual have been improperly disclosed by that agency.” In order to prove a government agency wrongfully released records, plaintiffs can go after the recipient of those records — journalists.
However, Congress wrote the law in 1974 to, among other things, “promote governmental respect for the privacy of citizens. . . to prevent the secret gathering of information on people or the creation of secret information systems or data banks on Americans by employees of the departments and agencies of the executive branch,” according to a Senate report from that year.
In fact, the act was prompted by the exact type of reporting that it is now used to limit.
“Watergate has thus been the symbolic catalyst of a tremendous upsurge of interest in securing the right of privacy: wiretapping and bugging political opponents, breaking and entering, enemies lists, the Houston plan, national security justifications for wiretapping and burglary, misuse of information compiled by government agencies for political purposes, access to hotel, telephone and bank records; all of these show what government can do if its actions are shrouded in secrecy and its vast information resources are applied and manipulated in a punitive, selective, or political fashion,” the report went on to say.
The Privacy Act attempted to protect the privacy of government employees’ personnel records, but it clearly wanted this protection to occur under an open government.
“There’s no question that the people who wrote it and the Congress that enacted the Privacy Act did not intend for it to apply so broadly,” Levine said.
Fortunately, a plaintiff must do more than just plead a Privacy Act case in order to force journalists to reveal their sources. In 2003, Linda Tripp, the former White House secretary who taped conversations with Monica Lewinsky about her affair with President Clinton, attempted to use the Privacy Act to force Stars and Stripes reporter Sandra Jontz to reveal who told her that Tripp had applied for a government job.
In Tripp’s case, the U.S. District Court in Washington, D.C., found that “no matter how strongly the other factors weigh in favor of the party seeking news gathering information from a journalist, where, as here, the party seeking to compel disclosure has made no effort whatsoever, or insufficient efforts, to obtain the information sought from alternative sources, or has made conclusory claims that the information cannot be obtained from other sources, courts in this Circuit have uniformly upheld the reporter’s privilege and refused to compel disclosure of information related to news gathering activities,” Judge Emmet G. Sullivan wrote for the court.
Federal courts in Washington, D.C., where many of the Privacy Act cases are brought, generally apply the so-called Zerilli test to determine if the plaintiff can overcome the reporter’s privilege. Zerilli came about in another Privacy Act suit in which Anthony Zerilli and Michael Polizzi claimed that Department of Justice employees leaked to The Detroit News information about conversations they had discussing illegal mafia activities.
In that case, U.S. District Judge J. Skelly Wright of Washington, D.C., ruled in 1981 that for a reporter to reveal a source, the party seeking the record must show the information needed “goes to the heart of the matter” and that the party “has exhausted all reasonable alternatives available . . . to obtain that information,” according to Sullivan’s reading of Zerilli in the Tripp decision.
“The Zerilli case seemed to be sufficient for a while,” Baine said. “But with the ruling in Lee, it appears the D.C. Circuit now thinks Zerilli is satisfied if the plaintiff has just tried other options first. “
Charles Tobin, a media attorney at Holland & Knight who also is working on the Lee case, said when Privacy Act cases arise “we hear the argument that the information in the journalist’s hand is the critical piece of proof the plaintiff needs. With the government making it more difficult to get information through ordinary channels, leaks are becoming the way to information beyond the party line. But as this trend continues, more people will bring Privacy Act claims against journalists, even when there was legitimate public interest in knowing that information. This is a big emerging issue.”
Hatfill also has used this emerging issue to his advantage. Hatfill, the Army scientist labeled “a person of interest” by the government in the 2001 anthrax attacks, sued The New York Times for libel, but has also sued the government for violating the Privacy Act. Under his theory, the government violated the Privacy Act when it disclosed to the press details of its investigation into the anthrax mailings implicating Hatfill.
“The implications of this theory for freedom of information are, I submit, truly breathtaking,” Levine said in a March 16 speech at the National Freedom of Information Day conference.
The best way to prevent more plaintiffs from convoluting the Privacy Act to weaken the reporter’s privilege is for journalists and lawyers to actively fight these subpoenas, Tobin said.
“The media lawyer needs to push in the courts and with the judges that a plaintiff needs to do more than just file a Privacy Act claim and immediately be allowed to depose journalists,” he said. “The courts need to start thinking about this more deeply.”
In addition, lawyers need to continue to point out the original intentions of the Privacy Act and to fight for a broader reporter’s privilege, according to Baine.
Alexander agreed, but said reporters have a role, too. “Raising awareness is an important starting point,” he said. “We remind our reporters to be much more mindful of the agreements they make with sources. They need to be conscious of their relationship.”
The big loser, said Tobin, is the public because of the “chill [on] the open flow of information.”