Month: October 2019

NMU MONTANA Confidentiality/Privilege Mar 12, 2001

Trial judge dismisses subpoena of student journalist

Shield law protects the unedited footage a documentarian recorded of a clash between protestors and police at a Hell’s Angels rally.

A Montana trial judge dismissed a subpoena on March 9 issued to a student journalist who had made a video of disturbances between protestors and police at a Hell’s Angels gathering in Missoula.

Judge Douglas Harkin ruled the “shield law affords absolute immunity to those who qualify for its protection.” The court broadly interpreted the protection under the state shield law, the judge wrote.

Linda Tracy, a student at the University of Montana, edited video she and others recorded of police clashing with protesters and onlookers at a Hell’s Angels gathering in July 2000. Her documentary, entitled “Missoula, Montana,” was shown to groups concerned that police had overreacted. Tracy also made her documentary available for free at a local video store. She later received class credit for producing the documentary.

The local prosecutor, Gary Henricks, subpoenaed the unedited video after Tracy refused to turn it over to law enforcement officials investigating the disturbances.

Henricks argued the shield law does not protect Tracy because she is a student, not an employee of a news media outlet. In addition, Henricks pointed out that Tracy used the video documentary for class credit only after she was unable to complete a separate, pre-assigned project. Tracy also owns a video business, “Turtle Majik Productions,” but Henricks mentioned that her state business application makes no mention of investigative journalism as its business purpose.

Harkin ruled that Tracy did qualify for shield law protection because she had gathered footage with an intent “to sell or give the video footage to commercial or public new agencies, television stations, or community antenna television services. Her stated intention is supported by her work with her own business, Turtle Majik Productions, her prior record of similar activities with various news entities, and her subsequent actions in connection with showing and editing the footage.”

Having ruled that the law protected Tracy based on her intent, the court did not specifically address the question of whether the shield law can extend to student journalists at all.

(Tracy v. City of Missoula; Media Counsel: Rick Sherwood, Reynolds, Motl and Sherwood, Missoula, Mont.) — DB

Related stories:

Journalism student fights city’s subpoena for videotape (11/3/2000)

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© 2001 The Reporters Committee for Freedom of the Press

Return to: RCFP Home; News Page

NMU FLORIDA Confidentiality/Privilege Nov 12, 2002

Journalist protected by state shield law in federal court

A district court judge found that a television reporter will not have to testify in a lawsuit by a police officer against her employer.

A Jacksonville journalist will not be forced to discuss whether he was prompted by a member of the Jacksonville police force to run a story about a fellow officer, after a federal judge in Jacksonville applied the protection of the state shield law in the federal case.

Stephanie Green, a Jacksonville police officer, is suing the police department claiming that the department retaliated against her for filing an unlawful employment practices complaint against the department. Green claims they retaliated by feeding a negative story about her to Winston Dean, a television reporter with Jacksonville’s WTLV.

Dean claimed he was protected by the state shield law, which requires that before a reporter is forced to testify, the plaintiff must aggressively seek the information from a source other than the reporter. This rule is meant to protect the reporter from divulging his source.

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In a Nov. 5 decision, a Florida district court in Jacksonville found that Green “failed to take advantage of all reasonable means to determine the identity” of the individual who provided Green with the information required. Green did not attempt to find out, by interviewing her superiors, whether they had approached Dean and asked him to run the story about Green.

The court stated that under Florida law, the plaintiff must meet a “heavy burden” in order to overcome the privilege that journalists have in the eyes of the law with respect to revealing their sources.

(Green v. Office of the Sheriff’s Office, Consolidated City of Jacksonville; George Gabel Jr.: Holland & Knight, Jacksonville) — GS

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© 2002 The Reporters Committee for Freedom of the Press

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Unusual application of state law seals access to court records

02/24/97

NEW YORK–A city court in upstate New York is denying a reporter access to court records, purportedly under state laws that provide for the sealing of certain records related to arrests that do not lead to criminal conviction.

Since last summer, Ron Churchill, who covers the Corning City Court for The Leader, has been denied access to the court records of defendants who are either acquitted or convicted of “noncriminal” charges. In a letter to Churchill dated January 10, 1997, Judge David Kahl stated that the court records he sought were sealed under state sealing laws and not available to the public.

State laws provide for the sealing of any police photographs or fingerprints taken pursuant to an arrest where the charges terminate in the defendant’s favor or result in certain noncriminal offenses such as disorderly conduct. According to the law, copies of the records on file with any police department, law enforcement agency or the state criminal justice division should also be sealed.

The statute directs the court clerk to notify the other agencies about the favorable disposition of the case, but is silent about court records. Explanatory commentary accompanying the statute indicates that court documents are not included in the records that the legislature intended to be sealed.

However, in a letter appearing in the February 13, 1997 edition of The Leader, Acting Judge Robert Cole Jr. states that the statute applies to court records and mandates the sealing of such records.

The statute provides that the district attorney can prevent the sealing if he or she can demonstrate to the judge that the interests of justice require that the records remain open. The legislature enacted the statutes to remove any stigma flowing from an accusation of criminal conduct that terminated in favor of the accused. (N.Y. CPL Secs. 160.50, .55)

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The Reporters Committee for Freedom of the Press

Reporter’s Toolkit: Toni Locy contempt citation

This memorandum is a call to arms to all American journalists from the Reporters Committee for Freedom of the Press.

Late Friday, U.S. District Court Judge Reggie Walton in Washington, D.C. issued an order holding former USA TODAY reporter Toni Locy in contempt for refusing to reveal confidential sources in the Hatfill/anthrax stories she wrote about five years ago.

Judge Walton denied Locy’s request for a stay pending appeal to the DC Circuit and ordered that all fines must come out of her pocket: she will not be allowed to accept assistance in paying the fines. In a couple of weeks, the fines will accelerate to $5,000 a day and not even her own mother will be allowed to help her pay them. Her first payment is due at midnight tomorrow.

Gannett Co. has filed a motion for an emergency stay of the contempt citation with the U.S. Court of Appeals for the D.C. Circuit. A coalition of about two dozen media companies and non-profit journalism organizations has also filed an amicus brief in support of Locy.

In the meantime, the Reporters Committee for Freedom of the Press urges you to pay attention to this case. Accordingly, we have prepared this memo as background as you write stories and editorials about this outrageous situation. Below you will find useful links to copies of court pleadings and orders, helpful background on the proliferation of subpoenas in recent years in the federal courts and information about the status of proposed federal shield laws in Congress.

We’d appreciate your help in impressing upon journalists, lawmakers, and the public that this situation is untenable. As always, the Reporters Committee stands ready to help you. We can be reached at 703-807-2100.

A few bullet points for you:

No judge has ever officially ordered that a reporter held in contempt may not accept reimbursement from an employer (or anyone else.) Read the Reporters Committee’s list of recent contempt citations nationwide.
Ms. Locy has cooperated to a degree. But she can’t remember who her specific sources were, so the judge has ordered her to reveal the names of up to a dozen confidential sources she routinely relied upon in the Justice Department (many of them who were sources for stories more sensitive than this one.) Read her declaration, deposition and legal brief challenging the contempt citation.
The fine (up to $5,000 a day) is punitive. If the judge wants to punish Ms. Locy, he should try her for criminal contempt and let a jury find that she willfully, intentionally and criminally forgot who her sources were for these stories. Read plaintiff Hatfill’s motions for sanctions against Ms. Locy and former CBS News reporter Jim Stewart.
The judge’s order can be interpreted as unjustly and unfairly coercing media companies to participate in settlements in federal Privacy Act cases. Because the media companies involved in the Wen Ho Lee case were willing to participate in a settlement with the government, one consequence of the judge’s order, whether intentional or not, could be an attempt to bring Gannett to the negotiating table to come up with part of the damages sought by Hatfill. Read a “White Paper” describing the threat to newsrooms of subpoenas in federal civil cases and a story describing the Wen Ho Lee settlement.
Some of the sources in this case have “self-identified.” We know the Justice Department leaked the information. So what we’re involved in here is essentially an effort to increase the financial settlement by trying to multiply the damages by keeping track of: (1) How many sources were involved, (2) How many times each spoke, and (3) How many different “facts” they revealed. Despite Hatfill’s aggressive pursuit of this theory, counsel for the reporters in this case say it has no basis in law.
This case is a prime example of why we need a federal shield law. You can read the bills that are pending in the Senate and that passed the House, as well as a memo prepared by the Newspaper Association of America that describes them. Last week, Senators Patrick Leahy (D-Vt.) and Arlen Specter (R-Pa.) urged Senate leadership to send the bill to the floor for a vote.
Journalists across the country need to cover this issue. To that end, we hope you will find the Reporters Committee’s “Shields and Subpoenas” web page to be useful. You may also be curious as to how your own state handles subpoena issues; see The Reporters Committee compendium of state and federal reporters privilege laws.
The Reporters Committee continues to explore ways in which we can financially support Ms. Locy without violating the judge’s order. We will keep you apprised of those efforts.Click Here: cheap INTERNATIONAL jersey

Former federal prosecutor Richard Convertino has asked a judge in Michigan to hold Detroit Free Press reporter David Ashenfelter in contempt for refusing to reveal his confidential sources during a deposition last month.

Convertino asked the court to fine Ashenfelter $500 a day for the first week he refuses to disclose his sources, $1,000 a day the following week, and $5,000 for each subsequent day, the Detroit News reported. The proposed fines mirror those imposed against Toni Locy in the Steven Hatfill case.

Ashenfelter refused to answer questions at the Dec. 8 deposition in Convertino’s Privacy Act lawsuit against the Department of Justice. Convertino had subpoenaed Ashenfelter for the identity of sources he used in a 2004 article on a Department of Justice investigation into Convertino’s conduct during a terrorism prosecution.

When Judge Robert H. Cleland dismissed Ashenfelter’s argument that a First Amendment reporter’s privilege protected him from having to reveal his sources, Ashenfelter invoked his Fifth Amendment right against self-incrimination. He argued that if he revealed the source of the leak he may incriminate himself, sincethat type ofgovernment leak is a federal crime and Convertino has previously alleged that Ashenfelter aided the leaker in committing that crime.

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Convertino’s attorney, Stephen Kohn, argued that Ashenfelter’s use of the Fifth Amendment was improper.

"We disagree with Mr. Kohn’s statement of both the facts and the applicable law, and we’ll respond appropriately in court," said Ashenfelter’s attorney, Herschel Fink.

NEWS MEDIA UPDATE · TEXAS · Confidentiality/Privilege · May 10, 2007

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Shield bill survives Senate vote, moves to House

A shield bill to protect journalists’ sources and materials has made its way out of the state Senate and into the House of Representatives for consideration.

May 10, 2007 · The Texas Senate approved the Free Flow of Information Act last week in a 27-4 vote and has sent the bill on to the House of Representatives.

The bill, introduced by Sen. Rodney Ellis (D-Houston), would give journalists a qualified privilege to protect both their sources and their newsgathering materials.

An individual or entity seeking to subpoena a member of the news media would have to show by “clear and specific” evidence that “all reasonable efforts have been exhausted to obtain the information from an alternative source,” the request is not overbroad or oppressive, and that the news media received proper notice of the request.

Furthermore, the subpoena proponent would have to prove that his or her interest in the information “outweighs the public interest in gathering and dissemination of news” and that the subpoena does not ask for “nonessential” information. Finally, the party would have to show that the information is relevant and essential to the underlying case.

The bill failed to reach a vote in April. The legislation was amended with broader exceptions for crime and terrorism, and the Senate approved the bill on May 1.

The House Judiciary Committee heard testimony about the bill on Monday and “seemed to be favorably inclined” to passing it, according to Texas media attorney Laura Prather.

Prather said that the bill’s supporters have engaged in “exhaustive negotiations” with opponents and that many of the opponents’ “concerns have been alleviated.” She added thatsupporters of the bill are “cautiously optimistic,” and are heartened because a shield bill has “never gotten this far before.”

“We have every indication that they will vote it out of committee [in the House],” Prather said. However, she said that the legislative session is over on May 28, so proponents of the bills are trying to move the process along “as quickly as possible.”

If the bill makes it out of committee in the House, it would then go to the House calendaring committee before it can be put to a vote on the floor, according to Prather.

(S.B. 966) — ES

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© 2007 The Reporters Committee for Freedom of the Press · Return to: RCFP Home; News Page

A reporter ignored promises he made to a source and turned over audio recordings of an interview that lead to the dismissal of all charges against a former FBI supervisor accused of assisting the mob in committing four murders.

On Tuesday, Village Voice reporter Tom Robbins wrote on the paper’s Web site that he had recordings of interviews withkey prosecution witness Linda Schiro that directly contradicted the testimony she offeredduring the trial against Lindley DeVecchio. Robbins conducted the interviews in 1997 while researching a never-published book about the case.

By the end of the day, both the defense and prosecution subpoenaed the tapes of the interviews. It may have been the second time the parties tried to get the tapes; Justice Gustin L. Reichbach previously quashed a subpoena served on the would be co-author of the book, Jerry Capeci.

But Robbins showed up to court on Wednesday, tapes in hand, despite a bevy of promises to Schiro that he would protect her identity and the contents of their interview. In his article, Robbins explained:

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“The ground rules when we spoke to Schiro in 1997 were that the information she provided would only be used in a book – not in news articles. She also exacted a pledge that we would not attribute information directly to her. And in a cautious but not unreasonable demand for a woman who spent her life married to the mob, she required a promise – however difficult to enforce – that we not cooperate in any law-enforcement inquiries stemming from said book’s publication.”

After listening to the tapes outside of court, prosecutors decided to drop all charges against DeVecchio, who faced life in prison if convicted. Robbins explained DeVecchio’s potential fate played a major role in his decision to break his agreement with Schiro.

“Those are the kind of high stakes that take precedence over contracts and vows of confidence, no matter how important they may be to the business of reporting, and regardless of how distasteful it may be to violate them. The threat of a life sentence trumps a promise.”

By saving DeVecchio, Robbins may have opened himself up to a host of problems beyond the inability to ever convince a source to trust him with sensitive information again: Schiro could target Robbins with private litigation for breaking his promises to her.

Under the Supreme Court’s ruling in Cohen v. Cowles Media, journalists must keep the promises they make to sources, including, notably, promises on confidentiality. As a result, for his efforts, Robbins could find himself on the losing end of a breach of contract claim from Schiro.

The bloc’s 27 remaining leaders agreed to a “flextension” until January 2020, Donald Tusk, president of the EU Council, tweeted on Monday.

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The delay — a third granted by Europe this year — must still be formalized. It will be cut short if Boris Johnson passes his exit deal before then.

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It could also have ramifications for the Prime Minister’s push to secure a Christmas general election, a request which will be voted on in Parliament later on Monday. Opposition parties had blocked Johnson’s effort to force a poll while a no-deal break from the EU remained on the table.

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French President Emmanuel Macron reprised the role of “bad cop” in the delay negotiations, suggesting last week he would be reluctant to grant another extension unless circumstances in Westminster changed significantly.

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But a French diplomat told CNN on Monday that the movement towards an election satisfied that demand, after Johnson and Macron spoke by phone during the weekend.

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The UK will now not leave the European Union on Thursday, despite repeated promises from Johnson that the process would not be delayed again.

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The Prime Minister had said Brexit would take place on October 31, “no ifs, no buts,” and proclaimed he would rather be “dead in a ditch” than delay Brexit. But Parliament forced him to request an extension if he was unable to pass his deal, which Johnson pulled from a vote after lawmakers rejected his three-day legislative timetable.

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An EU official told CNN that the next step in the process is to receive the UK’s official acceptance of the request. Tusk will then launch the formal written procedure to ratify the extension, with a deadline of 24 hours’ time.

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“We hope this to be concluded by Tuesday or Wednesday,” the official said.

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UK inches towards Christmas general election

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As the EU’s decision is confirmed, Johnson is prepping for a vote on his general election request on Monday.

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It is the third time he will try to secure an early poll, with the government proposing a date of December 12.

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But the attempt must be approved by two-thirds of MPs and the opposition Labour Party are expected to block it, after repeatedly saying they would only support a poll once a no-deal Brexit is “off the table.”

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“There’s no doubt an election is coming and I’m very happy to fight that election, very happy indeed… once the danger of a no-deal exit from the European Union is totally removed from the equation,” Labour leader Jeremy Corbyn said at a trade union conference in Scotland over the weekend.

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However, Johnson could secure an election this week even if his initial attempt is voted down.

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The Liberal Democrats plan to propose a new bill for a December 9 election, which would only require a simple majority of MPs to pass.

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“We need to get Boris Johnson out of office, unlock the gridlock in Parliament and give people the chance to vote to stay in the EU,” Liberal Democrat leader Jo Swinson said in a statement.

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“A general election on our proposed timetable would take no-deal off the table, and give the public the chance to elect a Liberal Democrat Government who will revoke Article 50 or increase the number of MPs who support a People’s Vote,” she added.

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The UK hasn’t had a general election in December since 1923, but the option appears the most likely path out of the country’s unending political deadlock.