Forget and Forgive?

From the Spring 2008 issue of The News Media & The Law, page 22.

Almost five years ago, then-USA Today reporter Toni Locy wrote two seemingly inconsequential stories about the FBI’s investigation into the 2001 anthrax mailings that left 17 people infected and five others dead in the nation’s first ever case of domestic bioterrorism. Years later, those routine stories have tangled Locy in a complicated and unprecedented civil lawsuit.

The stories reconfirmed what most of the public already knew: former Army scientist Steven J. Hatfill was a “person of interest” in the FBI’s investigation.

In June 2002, television crews filmed the FBI’s search of Hatfill’s home — a search he consented to — in conjunction with the investigation.

Two months later, and nine months before USA Today ran Locy’s stories, Attorney General John Ashcroft publicly conceded that Hatfill was indeed a “person of interest,” both on a nationally broadcast morning television show and then again at a press conference.

Locy’s stories were simply updates on the original investigation. They were two out of thousands that Locy wrote over her 25-year career at the Pittsburgh Press, Philadelphia Daily News, Boston Globe, Washington Post, U.S. News & World Report, USA Today and The Associated Press.

“These stories were routine. Almost painfully routine,” Locy said, especially when compared to some of the other stories she was working on at the time, including several on detention policies and interrogation tactics at Guantanamo Bay and the ongoing hunt for Osama bin Laden. “They were merely updates. It was not a front page scoop and they don’t stick out in my mind at all.”

Hatfill though, argues that those stories might play an integral role in his claim for damages against the government.

In August 2003, Hatfill filed suit against the government for allegedly violating the Privacy Act, which protects information about named individuals who are the subject of government files. Hatfill contends that the government violated that law by identifying him during its investigation.

To make such a claim though, U.S. District Court Judge Reggie B. Walton told Hatfill that he had to identify exactly who did the disclosing. Hatfill, apparently hoping to ratchet up the damages on his claim, launched a years-long effort to identify every government employee who may have mentioned information about him during the FBI’s investigation. Locy and several other reporters got caught in his net.

Locy was one of several reporters who relied on confidential sources to report on the investigation.

In his search, Hatfill subpoenaed Locy and five others to identify those sources. Hatfill’s efforts were fruitful. Three of the confidential sources — including two to whom Locy says she may or may not have spoken — voluntarily released the journalists from their promises of confidentiality. Hatfill, though, was still not satisfied.

“It’s all about money,” Locy’s attorney Robert Bernius said. “He has his case and he is looking to get some more individual damages for more individual violations.”

By Locy’s own admission, there may still be more sources for Hatfill to identify. But a major hurdle blocks Hatfill’s quest to ascertain these identities: Locy herself cannot remember exactly which sources provided her the specific information.

In fact, Locy is still unsure whether the sources she has already identified gave her any relevant information for the stories in question.

Since she disposes of her notes as a practical matter after a story is published and the story itself was one of such minor significance, Locy cannot pinpoint who from her cadre of about a dozen anthrax investigation sources offered the information about Hatfill.

Hatfill requested a list of her entire catalog of sources, but Locy refused to identify any sources who may have had nothing to do with the story at issue.

“To provide these names would be sheer guess work on my part, and I do not want to guess with people’s careers and livelihoods at stake,” Locy said.

By protecting the livelihoods of her sources, Locy is risking her own.

Wary of granting reporters a “convenient” method to avoid subpoenas by claiming that they did not remember the specific source for a story, Walton refused to concede that Locy’s “faulty memory should be an excuse to not disclose her universe of sources.”

Instead, he faulted Locy, blaming her inability to match up specific information with specific sources on “her own decision to dispose of her notes” and held her in contempt of court.

Pending appeal, Locy faces fines of $500 a day for seven days, $1,000 a day for the following seven days and $5,000 a day for the seven days after that, for a total of $45,500 in fines over the 21-day period.

Gannett Co. filed a motion for an emergency stay of the contempt citation with the U.S. Court of Appeals for the D.C. Circuit on March 10.

A coalition of about two dozen media companies and non-profit journalism organizations, including The Reporters Committee for Freedom of the Press, also filed an friend-of-the-court brief in support of Locy the same day. The appeals court stayed the decision on March 11, and granted Hatfill’s request for an expedited appeal on March 14.

Locy’s brief was filed March 28, along with a separate amicus brief by the media organizations. Oral arguments on the appeal were held on May 9.

Walton promised that the information Locy submitted would be subject to a protective order, allowing only the parties to the suit access to the identities of Locy’s sources. Locy, though, sees a major hole in that solution.

“That’s asking the fox to guard the chicken coop,” Locy said, pointing out that the Justice Department, the employer of several of her as yet unnamed sources, is a party to the suit. “It’s identifying my sources to the exact people I do not want to find out.”

Bernius agrees with his client’s assessment.

“The damage is done once the disclosure is made,” Bernius said, arguing that even if the Justice Department was walled off from the deposition, the effect would be evident.

“It is going to chill sources,” he said. “If potential FBI or DOJ sources know that their names are going to be exposed to DOJ lawyers it does in the purpose of the privilege.”

Noting notes

Speaking from the bench, Walton also admonished Locy and other reporters for not keeping better track of their anonymous sources.

“I learned in the Libby case that reporters aren’t good note takers,” Walton said, referring to the obstruction of justice charge against I. Lewis “Scooter” Libby, who anonymously provided information to reporters Judith Miller and Matthew Cooper about CIA operative Valerie Plame. “You would hope that if reporters are going to write about something as serious as this, they would take better notes.”

“I don’t like to have to hold anyone in contempt,” Walton said, but added that “the media has to be responsible in their reporting” and noted in his order that it would be irrational to allow Locy to avoid a subpoena “solely because of her own doing.”

But to reporters, saving notes raises both practical and ethical issues.

“I take a lot of notes — there would be nowhere to put all of them,” Locy said, observing that reporters are often lucky if they have a desk of their own, let alone a storage or filing room. “If every reporter kept every note for every story, we would quickly overwhelm the National Archives.”

More importantly, Locy explains, a reporter’s notebook can often be misconstrued.

“When you are first starting to look into things, you will have facts in your notes that are wrong,” said Locy, who, now as a professor at Washington & Lee University Department of Journalism and Mass Communication, counsels her students to dispose of their notes. “As you do your reporting, your notes get better and better in terms of accuracy. You do not want any of those notes taken out of context or used against you.”

Not everyone agrees that Walton was tinkering with newsroom policy though. Media attorney Kevin Baine, who represents other reporters in this case, said he thinks that the situation simply created a perfect storm where the bench will not serve as a lifejacket for the media.

“In the very peculiar circumstances here, where the reporter does not remember and has disposed of her notes, he is just saying that reporters should not expect sympathy from the court,” Baine said.