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Locy appeal dismissed, contempt order vacated

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  1. Protecting Sources and Materials
On Monday, the U.S. Court of Appeals in D.C. threw out the appeal and the underlying contempt order against former USA…

On Monday, the U.S. Court of Appeals in D.C. threw out the appeal and the underlying contempt order against former USA Today reporter Toni Locy for refusing to reveal sources related to the government’s investigation of former Army scientist Steven Hatfill.

Hatfill sued the government for violating the Privacy Act when his name was leaked to the press as a “person of interest” in the 2001 anthrax attacks. In the course of his lawsuit, he subpoenaed Locy, as well as other reporters, for the confidential sources from the government. Last summer, Hatfill settled the Privacy Act claim with the government for $5.8. Meanwhile, the District Court in Washington, D.C., held Locy in contempt and imposed a daily fine.

Hatfill filed a motion to dismiss in September but Locy had urged the Court of Appeals to decide her case, arguing that the reporters privilege issues needed to be determined. The Court of Appeals on Monday agreed with Hatfill and held that there was no reason to decide whether Locy’s sources are privileged because Hatfill and the government had settled the case, thus the sources were no longer needed.

However, the court vacated the contempt order, thus eliminating the fear that the case would become negative precedent for reporter’s privilege in D.C.

The Court acknowledged that the case raised important questions over the scope of the reporter’s privilege but held that: “Because the underlying case has been settled, however, there is no longer a “pending trial in which” the appellee’s request for disclosure “can be used.”

Besides holding her in contempt of court, the District Court decision also held that Hatfill may seek attorney fees from Locy — which would end up being more expensive than any contempt fines. Now that the contempt order has been vacated, it is presumed that Hatfill cannot seek attorney’s fees from Locy, because he cannot show he substantially prevailed in the litigation.