Judge finds Locy in contempt in Hatfill suit

Feb. 19, 2008  ·   U.S. District Judge Reggie Walton today found former USA Today reporter Toni Locy in contempt of court for failing to cooperate in former Army scientist Steven J. Hatfill’s Privacy Act suit against the government. Walton delayed judgment on Hatfill’s companion motion to find former CBS news reporter James Stewart in contempt.

Locy was one of five reporters Hatfill subpoenaed while trying to track down anonymous government sources who had identified him as a “person of interest” in the investigation into the 2001 anthrax attacks. Without identifying the source of those disclosures, Walton said, Hatfill cannot proceed with his suit against the government for releasing information about the investigation.

Since being subpoenaed, Locy has maintained that she does not remember the specific sources who identified Hatfill, but rather only a catalog of those who offered her information about the investigation generally.

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.”

Walton also criticized 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 from the bench, referring to the obstruction of justice investigation into I. Lewis “Scooter” Libby. “You would hope that if reporters are going to write about something as serious as this, they would take better notes.”

Locy now faces escalating fines for her refusal to identify those sources. She will be fined $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. In all, she could accumulate $45,500 in fines over the 21-day period. Walton is also considering whether to order her to pay the fines herself, with no assistance from Gannett Co., owner of USA Today, or anyone else.

If Locy continues to refuse to identify her sources then Walton will hold another hearing to consider additional sanctions against her. Walton also awarded Hatfill attorney’s fees for the cost of litigating the contempt motion.

“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.”

Walton temporarily delayed the start date of the fines against Locy while he considers granting a stay for the reporter to appeal. Such an order would allow Locy to avoid paying the fines while she challenges the ruling at a federal appellate court. Walton promised that his decision would come by the end of the week.

Walton also delayed ruling on Hatfill’s motion to find fellow reporter James Stewart in contempt. Stewart has already identified three anonymous sources who granted him a waiver of his promise of confidentiality, but refuses to identify any additional sources.

In a motion to reconsider Walton’s order to identify his sources, Stewart’s attorneys argued that the testimony of the already identified sources combined with recent decisions in Privacy Act cases fundamentally changed the situation in such a way that any of Stewart’s additional sources would not offer Hatfill any relevant information.

Walton did not indicate specifically when he would make a decision on Stewart’s motion.

Robert Bernius, Locy’s attorney, accused Hatfill of trying to “have his cake and eat it too” at the hearing, alleging that Hatfill’s former press agent and former attorney were at least partly to blame for the media attention that Hatill received. According to testimony from the reporters, Hatfill’s then-attorney Tom Connolly encouraged journalists to report on Hatfill’s situation and what he considered to be the FBI’s inappropriate targeting of the scientist.

But Walton, who has pushed Hatfill to keep pressure on the journalists to reveal their sources, refused to allocate blame to Hatfill, saying that individuals put in Hatfill’s position are “obviously going to want to get their spin on the situation before their life and their career is destroyed.”

(Hatfill v. Department of Justice; Media Counsel: Robert Bernius, Nixon Peabody LLP, Washington, D.C.; Lee Levine, Levine Sullivan Koch & Schulz LLP, Washington, D.C.) — Matthew Pollack

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