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Privacy Act suit based on leak to Detroit reporter dismissed

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  1. Protecting Sources and Materials
A federal judge ended a lengthy legal battle that centered around a reporter's confidential sources yesterday when he dismissed a…

A federal judge ended a lengthy legal battle that centered around a reporter's confidential sources yesterday when he dismissed a former federal prosecutor’s lawsuit against the Department of Justice.

The decision ended Richard Convertino’s seven-year pursuit of the identity of the Department of Justice source who fed information to Detroit Free Press reporter David Ashenfelter. In 2004, Ashenfelter wrote an article about the department's investigation of Convertino, then an assistant U.S. attorney, for his alleged misconduct in terrorism convictions.

Convertino later resigned from his position. He sued the Department of Justice in 2004, claiming that an unknown official there violated the Privacy Act by releasing information to the press. He then served a subpoena to Ashenfelter for the identity of the source, whom Ashenfelter refused to disclose.

Because Michigan's shield law cannot be invoked in a federal case and a First Amendment-based privilege protecting confidential sources is not recognized in the federal court with jurisdiction over Michigan, a judge there ordered Ashenfelter in 2008 to reveal the source. In response, he invoked his Fifth Amendment right not to incriminate himself. Ashenfelter decided to invoke that constitutional right when Convertino alleged the reporter was also violating the Privacy Act by conspiring with the unknown source. In February 2010, the court ruled that the Fifth Amendment's guarantee against self-incrimination protected Ashenfelter from having to reveal the information.

In Thursday's decision, Chief U.S. District Judge Royce C. Lamberth granted the Department of Justice’s motion for summary judgment. The judge noted that the case was purely about a source's identity.

“Pared down to essentials, this case is the simple story of Richard G. Convertino’s unsuccessful quest to unmask the leaker of his private information,” Lamberth said. “Seven years of litigation have sapped the resources of more than one United States District Court, yet Convertino is no closer to answering the most basic question of all: Who done it?”

The judge also explained why he found that Convertino’s allegation against the Department of Justice could not stand: In order to successfully proceed on his Privacy Act claim, Convertino needed to prove that the department willfully violated his rights guaranteed under the act and that the leaker was acting within the scope of his or her employment with the Department of Justice at the time of the leak. Because Convertino did not know the identity of the leaker, he was unable to do so.

“To meet the Privacy Act’s high standard for a showing of willfulness or intentionality, Convertino must know the leaker’s identity,” Lamberth said.

The judge also detailed Convertino’s previous attempts to discover the identity of the source, noting that Convertino subpoenaed the paper’s parent company Gannett Co. Inc. and pressured editors from the Free Press to testify. Convertino later withdrew the subpoena on Gannett and the court denied his request to compel the Free Press editors to appear in court.