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From the Hotline

From the Winter 2004 issue of The News Media & The Law, page 5.

From the Winter 2004 issue of The News Media & The Law, page 5.

The Reporters Committee operates a toll-free hotline for journalists with questions about free press and freedom of information issues. In this column, our attorneys and media lawyers from around the country discuss the latest hot-topic questions.

The attorneys’ answers are not meant to be relied upon as legal advice specific to any reader’s situation. Rather, answers are for informational purposes to help journalists understand how the law affects their work. Consult a lawyer for help with any specific situation, or call the Reporters Committee’s legal assistance hotline for more information or for help in finding an attorney.

Q: Justice Department investigators asked White House staff members in December to sign a form that would waive all existing agreements of confidentiality made with members of the media.

In a July 2003 syndicated column, reporter Robert Novak cited “senior administration officials” in identifying CIA operative Valerie Plame as the wife of former U.S. Ambassador Joseph Wilson, who had steadfastly criticized the Bush administration’s justifications for going to war in Iraq. Since September, the Justice Department has been investigating who leaked Plame’s identify, which is possibly a federal crime.

Novak, host of the TV talk show “Crossfire” and a columnist for the Chicago Sun-Times, has repeatedly said he will not reveal the name of his confidential sources because “that is part of the journalist’s code.”

But what does a confidentiality waiver mean to reporters, and do they lose the right to keep their sources confidential if a source agrees to sign a waiver?

A: When a government employer directs an employee to waive his right to serve as a confidential source, the employee has no right to refuse that direction. The waiver, therefore, would not be voluntary; it would be compelled.

I think that a reporter can legitimately decline to honor such a “waiver” and argue that the First Amendment protects their right to maintain the confidentiality of their sources, even when a particular source releases them from the confidentiality agreement.

This is all the more true because public employees do not have an unfettered right to speak to the press without fear of adverse consequences. Administration officials serve completely at the pleasure of the president; they can be fired for any reason. They have no rights under the Whistleblower Protection Act, for example, and as policy makers who are close to the president, they can rarely claim a First Amendment right to share their views or reveal information to the press. Moreover, in the Valerie Plame matter, the officials who spoke to the press may face criminal prosecution.

The issue may be a little more complicated in other contexts where the source is a government employee who is not a political appointee or high-level administration official. Career government employees, for example, can claim much stronger protection to speak to the press under the First Amendment when they are discussing matters of public concern.

And the Whistleblower Protection Act provides protection against reprisal for employees disclosing information to the press that they reasonably believe establishes a violation of law, gross mismanagement, gross waste of funds, a danger to public health and safety, or an abuse of authority (as long as there is no other legal prohibition against the disclosure — because it is classified, for example).

In any event, the existence of these legal protections is no panacea. Therefore, a reporter should not honor a waiver of confidentiality by an employee unless it is truly voluntary. I don’t think a waiver can ever be voluntary when it comes at the request of one’s employer.

Elaine Kaplan is a counselor at Bernabei & Katz, in Washington, D.C. She is the former head of the U.S. Office of Special Counsel, which protects federal employee whistleblowers.

A: In the Plame investigation, journalists who are asked to testify about the leak will be able to assert their rights under the reporter’s privilege regardless of how their sources respond to the government’s request.

The court have generally held that the privilege belongs to the reporter, not to the source. They have decided as such because a rule in which the reporter holds the reins of confidentiality will do more in the long term to further the interest behind the privilege — encouraging the free flow of information to the public.

This aspect of the reporter-source dynamic is an interesting one nonetheless, and the Plame investigation is just the latest example of the tension that can surface over who controls the privilege. What makes the Plame situation so unusual is that the effort to unravel the privilege is not coming from either the sources or the reporters involved, but from the government itself.

A more typical scenario in recent years, in which command over the privilege is called into question, is when a source attempts to dissolve the privilege to further a grievance against a news organization. For example, a source who sues a newspaper or broadcaster under a promissory estoppel or breach of contract theory may try to compel testimony from a reporter to show that a promise of confidentiality was not maintained in the way the source envisioned.

Bruce Brown, who specializes in media law, is a partner at Baker & Hostetler LLP in Washington, D.C.

Q: I am a journalist seeking to cover a local criminal trial. The judge has sealed the jury selection process and is withholding transcripts and jury records. Do I have a right to this information?

A: The issue of public access to jury selection — also known as voir dire — has been coming up a lot recently. Most notably, it arose in the securities fraud trial of Martha Stewart, in which U.S. District Judge Miriam Goldman Cedarbaum barred reporters from jury selection out of fear that prospective jurors might give less candid answers in the presence of the media. News organizations appealed Cedarbaum’s ruling to the U.S. Court of Appeals in New York City (2nd Cir.), which heard argument on Jan. 26.

Regardless of how the Stewart appeal is decided, there is a long history of decisions favoring public access to jury selection. In 1984, the U.S. Supreme Court recognized a First Amendment right of access to voir dire in criminal cases, ruling that such proceedings may be closed only if “essential to preserve higher values” and closure must be “narrowly tailored to serve that interest.” (Press-Enterprise Co. v. Superior Court)

The Court said that individual privacy concerns might warrant closure in limited circumstances, but it should be done only at the request of the juror, and only upon specific findings that the private interest outweighs the public’s interest in access. A redacted transcript of the closed proceeding must be made available within a reasonable time.

In addition, most courts recognize a common law right of access to the paper records generated by jury selection proceedings, such as petit lists (which contain names and addresses of jurors) and jury questionnaires. The identities of jurors may be withheld if disclosure would undermine the administration of justice — for instance, if there is a credible threat of jury tampering, or if jurors’ physical safety might be in danger. But a juror’s mere preference to remain anonymous is insufficient.

Q: I am a newspaper reporter covering an issue before the city council. Can I get copies of the council members’ e-mail messages concerning the issue?

A: The fact that public information is contained in the form of an e-mail message, as opposed to any other form, does not make it exempt under open records laws. Most states’ laws have recognized this either explicitly, or implicitly by broadly defining “public records.” Those few states that have not recognized this have not explicitly exempted e-mail messages, but have older definitions of public record that do not address the issue.

Some states, such as Florida, allow public officials to distinguish between e-mail messages sent in public and private capacities. The danger of this approach, which is often conducted outside supervision, is that embarrassing or incriminating public records may be withheld along with an official’s private grocery list.

Use of e-mail by public officials may also sometimes be a violation of open meetings laws, especially where e-mail is used to discuss and come to consensus on an issue outside of the public view. Whether or not such a use of e-mail is a violation depends on each state’s legal definition of a meeting.

A handful of states have addressed the issue and found this use of e-mail to violate the policy of conducting business in the public view. A small number of other states have found that e-mail does not constitute a meeting because there is no simultaneous discussion. The majority of states have not yet addressed the issue, and it is currently before the Supreme Court of Virginia.

It may be helpful to look at state-by-state comparisons in the Reporters Committee publications “Access to Electronic Records” and “Tapping Officials’ Secrets,” available at www.rcfp.org.