The Waiting Game

From the Summer 2008 issue of The News Media & The Law, page 11.

With former Army scientist Steven Hatfill ready to cash his multi-million dollar settlement check, former USA Today reporter Toni Locy thought her financial worries might be over soon, too.

When Hatfill agreed to drop his Privacy Act claim against the federal government on June 27 in exchange for $2.8 million in cash and another $3 million in annuity payments over the next 20 years, Locy knew her testimony in the suit would no longer be needed. Yet, despite the settlement, the courts have not dropped a contempt citation against her.

Last August, Hatfill subpoenaed Locy to identify the anonymous sources from within the government that she used in her 2003 stories on the investigation into the 2001 anthrax mailings that killed five and sickened 17 others.

Almost a year before her stories ran, then-Attorney General John Ashcroft very publicly identified Hatfill as a “person of interest” in the mailings. Locy, at the urging of Hatfill and his attorneys, wrote two seemingly inconsequential stories updating that investigation and confirming that Hatfill remained a “person of interest” in the Justice Department’s investigation but that some investigators had serious doubts that he was the culprit.

When Locy could not recall which of her sources gave her that specific information, U.S. District Court Judge Reggie B. Walton, wary of granting a “convenient” method for journalists to sidestep subpoenas, demanded that Locy identify the full universe of the anonymous sources she used for the investigation.

Unwilling to unmask as many as 12 sources, Locy refused to respond to Walton’s order.

Walton found Locy in contempt and imposed escalating fines of up to $5,000 for each day she continued to refuse his order. Locy immediately appealed, and a panel of three judges in the federal court of appeals in Washington, D.C. heard oral arguments on the contempt citation on May 9.

Hatfill settled his suit on June 27, before the court of appeals had an opportunity to issue a ruling on the case. Three days later, Walton filed a notice of his willingness to vacate the contempt citation against Locy if the Court of Appeals remanded the matter to him.

But as of early August Locy remained in wait, with the contempt finding technically still pending.

“The assumption by everybody was that the court of appeals would dismiss the contempt charges and boot it back to the district court,” Locy, now a journalism professor at Washington and Lee University in Virginia, said.

The fact that they did not leads Locy to believe that the court may be preparing to clarify some guidelines regarding holding journalists in contempt.

“I have always thought that there was a chance — and a good chance — that the court would take up the issues that we raised,” Locy said, pointing to concerns she raised about the size of the fines and Walton’s refusal to allow anyone other than Locy pay those fines. “I think that we need some answers to some of these questions, and the facts of the case tee up those issues very, very well.”

In early August, news broke that another scientist who had just learned he would be charged in the anthrax case had killed himself. An attorney for Bruce E. Ivins, 62, maintained his innocence in the days after his death. 

Although Locy is still waiting for her silver lining, Hatfill’s settlement did calm some other members of the media.

His lawsuit had many parallels to a similar Privacy Act suit filed against the government by nuclear scientist Wen Ho Lee.

Lee, under investigation for suspected espionage, sued the U.S. Departments of Energy and Justice and the FBI in 2000 claiming that they violated his rights under the Privacy Act by publicly releasing information about him.

Like Hatfill, Lee turned to the media to help establish his cases, subpoenaing six reporters to learn who leaked information about him to the media. When Lee settled his case, five media organizations agreed to contribute $750,000 as part of the settlement between Lee and the government.

Locy told The New York Times that a federal mediator tried to bring USA Today owner Gannett to the negotiation table in Hatfill’s suit as well. Gannett refused.

In settling Hatfill’s case, the Justice Department was careful not to admit any wrongdoing by identifying Hatfill during its investigation.

“By entering into this agreement, the United States does not admit to any violation of the Privacy Act and continues to deny all liability in connection with Dr. Hatfill’s claims,” Brian Roehrkasse, a Justice Department spokesman said.

Such settlement statements are not uncommon, but for some media lawyers those words could play a significant role in Hatfill’s chapter in the legend of the runaway Privacy Act.

Kevin Baine, a media attorney who co-authored an article for the Media Law Resource Center attacking plaintiffs’ recent use of the Privacy Act, said in an interview that the courts’ current interpretation of the law strays significantly from its initial intent.

“The Privacy Act was passed in response to the government having computerized databases to collect and store information about individuals,” Baine said. “No one in Congress — I am confident — thought that they would give a cause of action for people being investigated for criminal wrongdoing. That was the farthest thing from Congress’s mind.”

To Baine, the fundamental concern raised by the Hatfill and Lee cases is where the Privacy Act went wrong.

“How did the Privacy Act give these plaintiffs a weapon to discover the sources of news reporting about important investigations?” Baine asked.