When You Sing and it Goes Flat

From the Winter 2004 issue of The News Media & The Law, page 33.

Government employees who talk to reporters are learning that singing is not what it used to be. The people they talk about may get huge recoveries in Privacy Act settlements. They may face removal proceedings. The government may contact their future employers. They may even go to jail.

Former Pentagon spokesman Ken Bacon does not want to talk about Linda Tripp’s Privacy Act case. “It’s time to move on,” said Bacon, who now heads a public interest group for refugees.

But in his mind, he said, the case “was never about privacy; it was about freedom of information.”

Bacon asked his deputy in 1998 to check out for New Yorker reporter Jane Mayer a response Tripp would have given on her security clearance questionnaire. Had she ever been arrested? “No,” she checked. Mayer asked for the answer because she knew differently. As a 19-year-old, Tripp had been arrested on grand larceny charges, reduced on a plea to “loitering.”

Tripp sued the Department of Defense.

The woman who had taped and released the telephone confidences of her then-friend Monica Lewinsky — conversations about Lewinsky’s misalliance with the President of the United States — told the U.S. District Court in Washington, D.C., that she suffered a Privacy Act violation from the DOD revelation. The government had disclosed the embarrassing information that she had lied in a security questionnaire.

The government admitted the violation and settled the lawsuit, along with other Privacy Act charges by Tripp, including: President Clinton’s defense secretary, William Cohen, had discussed information about her with reporter Wolf Blitzer; Stars and Stripes had seen information from her files; and prospective government employers had seen protected information about her.

In November 2003, Tripp received $595,000 and three years’ worth of promotions and back pay from the government.

In normal privacy lawsuits, Tripp would have had no expectation of privacy in government records about her. The public’s interest in the public figure she rapidly became would have trumped those expectations.

The Privacy Act lawsuits are different from privacy tort suits. Tripp could call upon the government to enforce protections of the 1974 act for information about individuals, located in government files, and retrievable by their names or personal identifiers — and sue when the government released the information.

But the act is not the only serious pressure on government employees to keep mum, even when they want to talk and even when they sit in public information offices, as Bacon did. They can face job loss and even imprisonment when they talk.

Atlanta attorney Steven Sadow, who represented Jonathan Randel, warns that government employees who want to disclose information had better be prepared to “go the distance.”

Randel thought his employer, the Drug Enforcement Administration, should have been looking into billionaire banker and British Lord Michael Ashcroft. So Randel gave information about Ashcroft from DEA files to a (London) Times reporter, who wrote that Ashcroft’s bank in Belize housed the accounts of suspected drug dealers. The story so angered Ashcroft that he sued the Times for libel and then persuaded the U.S. to prosecute Randel for “selling” government information.

Randel began serving a year-long sentence in September.

The Times paid Randel’s lost salary and expenses for testifying in the British libel trial, which resulted in a settlement. But even after Randel went to jail, Ashcroft brought a civil suit against him seeking slightly more than $1 million.

In responding to questions from Washington Post reporter David Fahrenthold, Teresa Chambers, chief of the U.S. Park Police, said her department is underfunded and understaffed. Now she is on leave and facing removal proceedings. The removal document outlining her supposed transgressions accuses her of “making public remarks regarding security on the federal mall and in parks and on the parkways” in Washington, D.C.

In our summer magazine we reported the plight of former Justice Department attorney Jesselyn Radack. Although she will not divulge what was said, at some point Radack spoke with reporter Michael Isikoff. He had been alerted by anonymously sent e-mails of her concerns that the FBI’s interrogation of John Walker Lindh was improper. Radack maintained that Lindh — dubbed by the media as the American Taliban — could not be questioned without an attorney present.

Radack’s performance reviews soon plummeted. When she left the Justice Department for a private law firm, department attorneys pressured the firm to fire her.

Even when there is no lawsuit, no jail and no job loss, government employees are finding that even when they sing softly, it can go flat.

Brian Pruiett of the Buffalo, Wyo., office of the Bureau of Land Management worked with a reporter from The (Gillette) News-Record on a story about “orphan oilfields,” abandoned leaseholds that revert to the government after oil companies go bankrupt or sell their rights to other companies that go bankrupt. With no one else in charge, the government has to clean up the messes — often oil spills — at great expense.

After the story was published, a small oil company in Denver complained to the bureau’s state director in Cheyenne. The company was not angered by the accuracy of the information, but rather that Pruiett had discussed it.

As a result, the bureau’s state office in Cheyenne closed off all public access to the lease files, which had always been open. The move was temporary, it said, while it develops a “policy” for what will be open and what will not. The state director apologized to the oil company for quotes attributed to Pruiett.

As government workers find it increasingly difficult to talk, reporters must rely more and more often on Freedom of Information Act requests, their only legal entitlement to federal information.