IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) STEVEN J. HATFILL, M.D., ) )

Plaintiff, ) Case No. 1:03-CV-01793 (RBW) v. ) ) ALBERTO GONZALES, ) ATTORNEY GENERAL, et al., ) ) Defendants. ) __________________________________________)

OPPOSITION OF MICHAEL ISIKOFF, DANIEL KLAIDMAN AND ALLAN LENGEL TO PLAINTIFF’S MOTION TO COMPEL FURTHER TESTIMONY

Kevin T. Baine (No. 238600) Kevin Hardy (No. 473941) Carl R. Metz (No. 490633) WILLIAMS & CONNOLLY LLP 725 Twelfth Street, N.W. Washington, D.C. 20005 (202) 434-5000 (202) 434-5029 (facsimile) Counsel for Michael Isikoff, Daniel Klaidman and Allan Lengel

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ......................................................................................................... iii INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 2 ARGUMENT.................................................................................................................................. 5 I. DR. HATFILL HAS NOT DEMONSTRATED AN OVERRIDING NEED

FOR ANY SOURCE’S IDENTITY, AS REQUIRED BY THE FIRST AMENDMENT................................................................................................................... 7

A. The Disclosures at Issue Do Not Constitute Privacy Act Violations.................... 10

1. The Privacy Act Only Protects Information from Disclosure if

it is Truly Personal in Nature .................................................................... 10

2. Information Newsweek’s Michael Isikoff Obtained from the Department of Justice or FBI.................................................................... 15

3. Information Newsweek’s Daniel Klaidman Obtained from the

Department of Justice or FBI.................................................................... 18

4. Information The Washington Post’s Allan Lengel Obtained from the Department of Justice or FBI ..................................................... 19

5. Dr. Hatfill Is Not Complaining of Actual Privacy Act

Violations.................................................................................................. 20

B. Even Assuming the Disclosures to Messrs. Isikoff, Klaidman and Lengel Could Constitute Privacy Act Violations, the Specific Identities of Their Sources Are Immaterial. ......................................................................... 22

C. The Public Interest in Newsgathering Is Not Outweighed by any

Public Interest in Disclosure of Confidential Sources .......................................... 24

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II. DR. HATFILL CANNOT OVERCOME THE REPORTERS’ PRVILEGE UNDER FEDERAL COMMON LAW. ........................................................................... 27

A. The Existence of a Federal Common-Law Reporters’ Privilege

Remains an Open Question................................................................................... 28

B. Rule 501 and the Jaffee Framework ..................................................................... 29

C. The Reporters’ Privilege is Firmly Established in State Law, And Should Be Made Equally So in Federal Court...................................................... 30

D. Dr. Hatfill Cannot Overcome a Privilege that Balances His Private

Interest Against the Public Interest in Receiving Pertinent News Information. .......................................................................................................... 36

CONCLUSION............................................................................................................................. 36

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TABLE OF AUTHORITIES

Page

FEDERAL CASES Alexander v. FBI, 186 F.R.D. 21 (D.D.C. 1998) .........................................................................6, 9 Ashcraft v. Conoco, Inc., 218 F.3d 282 (4th Cir. 2000).........................................................6, 7, 30 Baker v. F & F Investment, 470 F.2d 778 (2d Cir. 1972)................................................7, 9, 30, 31 Bartel v. Federal Aviation Admin., 725 F.2d 1403 (D.C. Cir. 1984).............................................23 Branzburg v. Hayes, 408 U.S. 665 (1972).....................................................................................34 Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F2d 583 (1st Cir. 1980) ...........................10 Carey v. Hume, 492 F.2d 631 (D.C. Cir. 1974) ..............................................................................8 Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001) ...............................................................13 Clyburn v. News World Commc’ns., Inc., 903 F.2d 29 (D.C. Cir. 1990) ........................................6 Cochran v. United States, 770 F.2d 949 (11th Cir. 1985) .............................................................13 Cox v. Miller, 296 F.3d 89 (2d Cir. 2002) .....................................................................................35 De Roburt v. Gannett Co., 507 F. Supp. 880 (D. Haw. 1981).......................................................33 Department of Army v. F.L.R.A., 56 F.3d 273 (D.C. Cir. 1995)....................................................11 Doe v. Chao, 306 F.3d 170 (4th Cir. 2002) ...................................................................................11 Doe v. Chao, 540 U.S. 614 (2004)...........................................................................................11, 14 Dong v. Smithsonian Institution, 125 F.3d 877 (D.C. Cir. 1997) ..................................................13 Gonzales v. National Broadcasting Co., Inc., 194 F.3d 29 (2d Cir. 1999)....................................31 Hill v. U.S. Air Force, 795 F.2d 1067 (D.C. Cir. 1986) ................................................................23 Houston v. Department of Treasury, 494 F. Supp. 24 (D.D.C. 1979) .....................................14, 21

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Hutira v. Islamic Republic of Iran, 211 F. Supp. 2d 115 (D.D.C. 2002).....................................6, 9 In re Grand Jury Subpoena (Judith Miller), 397 F.3d 964 (D.C. Cir. 2005) .......................................................2, 6, 8, 24, 25, 28, 31, 36 In re Lindsey, 148 F.3d 1100 (D.C. Cir. 1998)..............................................................................35 In re Sealed Case, 107 F.3d 46 (D.C. Cir. 1997)...........................................................................35 In re Special Counsel Investigation, 338 F. Supp. 2d 16 (D.D.C. 2004).......................................34 In re Subpoena Duces Tecum Issued to CFTC, 439 F.3d 740 (D.C. Cir. 2006)............................29 Jaffee v. Redmond, 518 U.S. 1 (1996) ........................................................................29, 30, 32, 34 Lane v. Pena, 518 U.S. 187 (1996)................................................................................................11 Lee v. Department of Justice, 413 F.3d 53 (D.C. Cir. 2005) .......................1, 5, 6, 7, 10, 21, 22, 28 Lee v. Department of Justice, 428 F.3d 299 (D.C. Cir. 2005) .............................................8, 25, 27 Lee v. Dept. of Justice, 401 F. Supp. 2d 123 (D.D.C. 2005) ................................................... 28-29 McBride v. Merrell Dow and Pharm. Inc., 717 F.2d 1460 (D.C. Cir. 1983) .................................9 Minneapolis Star and Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575 (1983).............................................................................................................6 Murphy Exploration & Prod. Co. v. Dep’t of Interior, 252 F.3d 473 (D.C. Cir. 2001) ...........................................................................................12 N.L.R.B. v. Mortensen, 701 F. Supp. 244 (D.D.C. 1988) ................................................................6 Riley v. City of Chester, 612 F.2d 708 (3d Cir. 1979) ...................................................................31 Shoen v. Shoen, 5 F.3d 1289 (9th Cir. 1993) ..................................................................................7 Tobey v. N.L.R.B., 807 F. Supp. 798 (D.D.C. 1992)................................................................14, 21 Tomasello v. Rubin, 167 F.3d 612 (D.C. Cir. 1999) ..........................................................11, 15, 21 Trammel v. United States, 445 U.S. 40 (1980) ........................................................................29, 35 Tripp v. Dep’t of Defense, 284 F. Supp. 2d 50 (D.D.C. 2003) ........................................................6 United States v. Kelly, 790 F.2d 130 (D.C. Cir. 1986) ..................................................................35

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United States v. Ahn, 231 F.3d 26 (D.C. Cir. 2000) ........................................................................9 United States v. Burke, 700 F.2d 70 (2d Cir. 1983).........................................................................9 United States v. Nordic Village, Inc., 503 U.S. 30 (1992).......................................................11, 12 United States v. Philip Morris, Inc., 396 F.3d 1190 (D.C. Cir. 2005).....................................13, 15 Wash. State Department of Social & Health Services v. Guardianship Estate of Keffeler, 537 U.S. 371 (2003).............................................................................13 Wright v. F.B.I., 385 F. Supp. 2d 1038 (C.D. Cal. 2005) .............................................................10 Zerilli v. Smith, 656 F.2d 705 (D.C. Cir. 1981) ..................................................................... passim

STATE CASES Brown v. Virginia, 204 S.E.2d 429 (Va. 1974)..............................................................................33 Dallas Morning News Co. v. Garcia, 822 S.W.2d 675 (Tex. App. 1991).....................................33 Hawkins v. Williams, Hinds County Circuit Court, No. 29,054 (Miss. Cir. Court, March 16, 1983) ..................................................................................33 Hopewell v. Midcontinent Broadcasting Corp., 538 N.W.2d 780 (S.D. 1995).............................33 Idaho v. Salsbury, 924 P.2d 208 (Idaho 1996) ..............................................................................33 In re John Doe Grand Jury Investigation, 574 N.E.2d 373 (Mass. 1991).....................................33 In re Letellier, 578 A.2d 722 (Me. 1990) ......................................................................................33 Kansas v. Sandstrom, 581 P.2d 812 (Kan. 1978) ..........................................................................33 Kurzynski v. Spaeth, 538 N.W.2d 554 (Wis. Ct. App. 1995) ........................................................33 Lester v. Draper, No. 000906048 (Utah 3d Dist. Ct. Jan. 16, 2002) ............................................33 Missouri ex rel. Classic III, Inc. v. Ely, 954 S.W.2d 650 (Mo. App. 1997) ..................................33 New Hampshire v. Siel, 444 A.2d 499 (N.H. 1982).......................................................................33 Vermont v. St. Peter, 315 A.2d 254 (Vt. 1974)..............................................................................33

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W. Virginia ex rel. Hudok v. Henry, 389 S.E.2d 188 (W. Va. 1989).............................................33 Winegard v. Oxberger, 258 N.W.2d 847 (Iowa 1977) ..................................................................33

FEDERAL STATUTES & REGULATIONS 28 C.F.R. § 50.10 (2006) .....................................................................................................8, 30, 31 28 C.F.R. § 50.2 (2006) ...............................................................................................................3, 4 Fed. R. Evid. 501 .......................................................................................27, 28, 29, 30, 31, 34, 35 Privacy Act of 1974, 5 U.S.C. § 552a.................................................................................... passim

STATE STATUTES Ala. Code § 12-21-142...................................................................................................................32 Alaska Stat. §§ 09.25.300-.390......................................................................................................33 Ark. Code Ann. § 16-85-510 .........................................................................................................33 Ariz. Rev. Stat. §§ 12-2214, 12-2237 ............................................................................................32 Cal. Evidence Code § 1070............................................................................................................32 Colo. Rev. Stat. § 13-90-119 .........................................................................................................33 Conn. Gen. Stat. Ann § 52-146t.....................................................................................................33 D.C. Code § 16-4701 et seq ...........................................................................................................32 Del. Code Ann. tit. 10, §§ 4320-26................................................................................................32 Fla. Stat. Ann. § 90.5015 ...............................................................................................................33 Ga. Code Ann. § 24-9-30...............................................................................................................33 735 Ill. Comp. Stat. Ann. 5/8-901..................................................................................................33 Ind. Code Ann. §§ 34-46-4-1, 34-46-4-2.......................................................................................32 Ky. Rev. Stat. Ann. § 421.100 .......................................................................................................32

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La. Rev. Stat. Ann. §§ 45:1451-1459 ............................................................................................33 Md. Code. Ann., Cts & Jud. Proc. § 9-112....................................................................................32 Mich. Comp. Laws Ann.§§ 767.5a, 767A.6 ..................................................................................32 Minn. Stat. Ann. §§ 595.021-.025 .................................................................................................32 Mont. Code Ann. §§ 26-1-902, 26-1-903 ......................................................................................32 N.C. Gen. Stat. § 8-53.11...............................................................................................................33 N.D. Cent. Code § 31-01-06.2 .......................................................................................................33 N.J. Stat. Ann. §§ 2A:84A-21.1.....................................................................................................32 N.M. Stat. Ann. § 38-6-7 ...............................................................................................................33 N.Y. Civ. Rights Law § 79-h .........................................................................................................32 Neb. Rev. Stat. Ann. §§ 20-144.....................................................................................................32 Nev. Rev. Stat. Ann. 49.275, 49.385 .............................................................................................32 Ohio Rev. Code Ann. §§ 2739.04, 2739.12...................................................................................32 Okla. Stat. Ann. tit. 12, § 2506 ......................................................................................................33 Or. Rev. Stat. §§ 44.510-.540 ........................................................................................................32 42 Pa. Cons. Stat. Ann. § 5942(a)..................................................................................................32 R.I. Gen. Laws §§ 9-19.1-1............................................................................................................32 S.C. Code Ann. § 19-11-100..........................................................................................................33 Tenn. Code Ann. § 24-1-208 .........................................................................................................33 H.B. 1366, 60th Leg., Reg. Sess. (Wash. 2007) ...........................................................................33

INTRODUCTION

In the name of not “unreasonably tax[ing] the Court’s time and attention,”

Plaintiff Steven J. Hatfill submits a motion to compel further testimony from five non-party

reporters without once quoting or paraphrasing from the underlying depositions in which he

asked the reporters to identify their confidential sources. Such discussion is unnecessary,

Dr. Hatfill argues, because to satisfy his burden in seeking to overcome the reporters’ privileges

he need only demonstrate three points: (1) that each subpoenaed reporter authored an article

about Dr. Hatfill; (2) that some part of that article was based upon information the reporter

learned from a source employed by one of the agency defendants; and (3) the reporter declined to

name that source, citing promises of confidentiality. See Pl.’s Mot. to Compel Further

Testimony (“Mot.”) at 4-5. This narrow approach overlooks the most important element of all:

some indication that the information contained in the articles was protected from disclosure

under the Privacy Act. In the absence of such a disclosure, the identities of the reporters’ sources

have no relevance whatsoever to the issues in this case.

It is well-established that in civil cases the First Amendment provides journalists

with a qualified privilege not to reveal the identities of their confidential sources, and that this

privilege is designed to prevail in “all but the most exceptional cases.” Zerilli v. Smith, 656 F.2d

705, 712 (D.C. Cir. 1981). A party seeking discovery from a reporter must show, at a minimum,

that (i) the information sought is of central significance to his case; and (ii) it cannot be obtained

from any other source through due diligence. Id. at 713; see also Lee v. Dep’t of Justice, 413

F.3d 53, 59 (D.C. Cir. 2005). In addition, before ordering disclosure of confidential sources, the

Court must “weigh the public interest in compelling disclosure, measured by the harm the leak

caused, against the public interest in newsgathering, measured by the leaked information’s

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value”—and satisfy itself that the balance favors disclosure. In re Grand Jury Subpoena (Judith

Miller), 397 F.3d 964, 998 (D.C. Cir. 2005) (“Miller”) (Tatel, J., concurring).

Dr. Hatfill cannot make the showing necessary to overcome the reporter’s

privilege asserted by Messrs. Isikoff, Klaidman and Lengel at their depositions. None of these

reporters received from their DOJ or FBI sources the sort of personal information protected by

the Privacy Act. In fact, as Dr. Hatfill learned during their depositions, the relatively few

examples of personal and private information contained in the reporters’ articles came not from

any government source, but from friends and associates of Dr. Hatfill himself. The disclosures

that actually came from employees of one of the agency defendants were of an entirely different

character, consisting of information about what investigators were thinking, what leads they

intended to pursue, and what events they had recently witnessed—none of which comes within

the ambit of the Privacy Act.

Non-party journalists Michael Isikoff and Daniel Klaidman of Newsweek, and

Allan Lengel of The Washington Post, are no more eager than Dr. Hatfill to tax this Court’s time

and attention. But an examination of the underlying articles is necessary to any assessment of

whether their privileges may be overcome. When that examination is done, it is clear that the

identities of confidential sources is not essential to any substantial Privacy Act claim, and that

there is no overriding public interest in ordering their disclosure.

BACKGROUND

The Court is familiar with the factual and procedural background of this Privacy

Act case, and as a result, we will only briefly recount it here. On August 26, 2003, plaintiff

Steven J. Hatfill sued then-Attorney General John Ashcroft, the Department of Justice (“DOJ”),

Federal Bureau of Investigation (“FBI”), two DOJ officials, one FBI official, and an unknown

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number of FBI and DOJ employees for alleged violations of his Fifth Amendment rights, First

Amendment rights, the Privacy Act of 1974, 5 U.S.C. § 552a (2000), and a related DOJ

regulation, 28 C.F.R. § 50.2 (2006). The gravamen of plaintiff’s complaint is that the defendants

“embarked on a highly public campaign to accuse Dr. Hatfill [of perpetrating the anthrax attacks

of 2001] without formally naming him a suspect or charging him with any wrongdoing.” Compl.

¶ 3. As a result of motions to dismiss filed by the defendants, it appears that the Privacy Act

claim against the agency defendants is the only claim that remains.

At the heart of Dr. Hatfill’s Privacy Act claim is his allegation (an allegation

which is clearly true) that the then-Attorney General of the United States publicly identified

him—on the record—as a “person of interest” in the anthrax investigation. Specifically, plaintiff

alleges—and the defendants admit—the following:

On August 6, 2002, Mr. Ashcroft appeared on two morning television shows. On CBS’s “The Early Show,” Mr. Ashcroft identified Dr. Hatfill as a “person of interest” in the Amerithrax investigation. On NBC’s “Today Show,” Mr. Ashcroft stated that Dr. Hatfill was a “person that—that the FBI’s been interested in” in its investigation. Later, on August 22, 2002, during a press conference at the Peter Rodino Federal Building in Newark, New Jersey, Mr. Ashcroft tarred Dr. Hatfill a third time as “a person of interest to the Department of Justice.”

Id. ¶ 49; see Answer ¶ 49 (admitting these allegations). Not surprisingly, Dr. Hatfill alleges that

these public statements violated the Privacy Act. Compl. ¶ 55.

These public statements by the nation’s chief law enforcement officer are clearly

the most damaging statements made by the government concerning Dr. Hatfill, and there is

obviously no mystery about who made them. Indeed, the defendants have even admitted, in

response to Dr. Hatfill’s requests for admission, that “information regarding whether federal law

enforcement officials considered Dr. Hatfill to be a person of interest in connection with the

Anthrax Investigation is contained within a record or records within a system of records”

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maintained by defendants, as required for a claim under the Privacy Act. See Response to

Request No. 232 (Docket No. 31). It would thus appear that, for months, Dr. Hatfill has had all

of the information he needs to proceed to trial—or summary judgment—on the highly damaging

disclosures that form the heart of his Privacy Act claim.

Despite this, Dr. Hatfill has spent his time attempting to uncover the identities of a

handful of additional Justice Department and FBI officials who apprized the press—and thus the

public—of the status of the anthrax investigation. As part of his efforts, Dr. Hatfill took the

depositions of six journalists, among them Michael Isikoff and Daniel Klaidman of Newsweek

and Allan Lengel of The Washington Post. All three confirmed that some or all of their sources

were employed at the relevant time by the Justice Department or the FBI. In addition, to the

extent that it was possible to do so several years after the fact, all of them identified which

sources (using identifiers such as “Source A” and “Source B”) disclosed which specific pieces of

information contained in their news articles. Dr. Hatfill now seeks to compel these reporters to

provide the specific identities of their DOJ and/or FBI sources.

As explained herein, however, the disclosures reflected in the news articles

written by Messrs. Isikoff, Klaidman and Lengel did not contain the sort of personal information

that is protected by the Privacy Act—even assuming the disclosed information came from a

government record, as the Privacy Act requires, 5 U.S.C. § 552a(b). Rather, it was generic

information about the investigation (e.g., information regarding what was (or was not) found in a

search of a Maryland pond), information about how investigators subjectively viewed the

information they were gathering (e.g., agents expressing their view that they were on the verge of

breaking the case), or information about objective facts learned by investigators through their

observations (e.g., that Dr. Hatfill was seen disposing of some of his belongings in a dumpster).

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This is not the stuff of which Privacy Act violations are made. And if we are wrong about that—

if these are the kinds of disclosures that fall within the coverage of the Privacy Act—then the

Privacy Act violations can be proven without the identities of sources, based on the evidence that

has already been provided by Messrs. Isikoff, Klaidman and Lengel.

ARGUMENT

Dr. Hatfill concedes, as he must, that in civil cases journalists have a qualified

privilege under the First Amendment to refuse to identify their confidential sources. Mot. at 6-7.

The privilege was first applied by the D.C. Circuit a quarter-century ago in Zerilli, 656 F.2d 705,

itself a Privacy Act case, and its continuing vitality was confirmed in Lee, 413 F.3d 53, the case

on which Dr. Hatfill principally relies: “Zerilli provides for a non-party journalist’s qualified

privilege in a civil action such as this one, where testimony of journalists is sought because

government officials have been accused of illegally providing the journalists with private

information.” Lee, 413 F.3d at 59.

Despite that concession, Dr. Hatfill makes no secret of his distaste for the

reporter’s privilege or the newsgathering it fosters. He criticizes the practice of journalists

granting anonymity to their sources, describing it as a tawdry “quid pro quo,” Mot. at 1,

reflecting a “symbiotic relationship” between the press and the government, id. at 6 n.3, in which

the former “cover[s] up” the crimes of the latter, id. at 13. He finds harsher words still for the

privilege itself, calling it “unnecessary,” id. at 2, “corrosive of journalism,” id., and incapable of

anything but “fostering an illegal practice of no societal benefit,” id. at 14. The Court need not

concern itself long with such rants, for the law in this Circuit is crystal clear—journalists have a

privilege not to identify their sources, and that privilege exists precisely because of the weighty

“public interest in protecting a newspaper’s confidential sources[.]” Zerilli v. Smith, 656 F.2d

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705, 712 (D.C. Cir. 1981) (emphasis added). As the Fourth Circuit has recognized, “[i]f

reporters were routinely required to divulge the identities of their sources, the free flow of

newsworthy information would be restrained and the public’s understanding of important issues

and events would be hampered in ways inconsistent with a healthy republic.” Ashcraft v.

Conoco, Inc., 218 F.3d 282, 287 (4th Cir. 2000) (citing Minneapolis Star & Tribune Co. v. Minn.

Comm’r of Revenue, 460 U.S. 575, 585 (1983)).1

Thus, the first question in this motion is not whether a privilege exists under the

First Amendment, but rather, whether Dr. Hatfill has made a sufficient showing to make this one

of the “exceptional cases” in which it can be overcome. Zerilli, 656 F.2d at 712. Dr. Hatfill’s

burden is to prove, at a minimum, (1) that the identity of these reporters’ confidential sources is

centrally relevant to the action, and (2) that reasonable alternative sources of identifying those

sources have been exhausted. Lee, 413 F.3d at 59. Dr. Hatfill cannot make that showing. Nor

can he make the broader showing that “the public interest in compelling disclosure, measured by

the harm the leak caused,” outweighs “the public interest in newsgathering, measured by the

leaked information’s value.” Miller, 397 F.3d at 998 (Tatel, J., concurring). The “leaks” at

issue here did not cause any public harm; Dr. Hatfill is simply seeking to vindicate a private

reputational interest. And the value of the disclosures is plain to see—the public was informed

about the status of a major investigation and, to a substantial degree, reassured that the notorious

anthrax mailings were not believed to be another terrorist attack from outside the country.

1 See also Clyburn v. News World Commc’ns., Inc., 903 F.2d 29 (D.C. Cir. 1990); Tripp v. Department of Defense, 284 F. Supp.2d 50 (D.D.C. 2003); Hutira v. Islamic Republic of Iran, 211 F. Supp.2d 115 (D.D.C. 2002); Alexander v. FBI, 186 F.R.D. 21 (D.D.C. 1998); N.L.R.B. v. Mortensen, 701 F. Supp. 244 (D.D.C. 1988).

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I. DR. HATFILL HAS NOT DEMONSTRATED AN OVERRIDING NEED FOR ANY SOURCE’S IDENTITY, AS REQUIRED BY THE FIRST AMENDMENT.

The First Amendment reporter’s privilege recognized in Zerilli requires the Court

to “strik[e] the balance between the civil litigant’s interest in compelled disclosure and the

public interest in protecting a newspaper’s confidential sources.” Zerilli, 656 F.2d at 712. This

balance cannot be struck through mere application of a formula, but only through a careful

determination whether, under all of the circumstances of the case, the “civil litigant’s interest in

compelled disclosure” outweighs “the public interest in protecting a newspaper’s confidential

sources” that gives rise to the First Amendment privilege in the first place. Id.

At a minimum, the First Amendment requires (1) that the identity of these

reporters’ confidential sources must be centrally relevant to the action, and (2) that reasonable

alternative sources of identifying those sources have been exhausted. Zerilli, 656 F.2d at 713;

Lee, 413 F.3d at 59. In Zerilli, the Court of Appeals noted that it need not decide whether

compelled disclosure of confidential sources would be appropriate based on this two-fold

showing of centrality and exhaustion alone—in other words, whether a broader showing of

overriding need must be shown. 656 F.2d at 715 n.2. And in Lee the Court did not address that

question because the parties did not argue the point. Given the First Amendment nature of the

privilege, however, other courts have held that it can be overcome only when “there is a

compelling interest in the information.” Ashcraft, 218 F.3d at 287; see also Baker v. F & F Inv.,

470 F.2d 778, 783 (2d Cir. 1972) (requiring a “rare overriding and compelling interest”);

Shoen v. Shoen, 5 F.3d 1289, 1296 (9th Cir. 1993) (“Once the privilege is properly invoked, the

burden shifts to the requesting party to demonstrate a sufficiently compelling need for the

journalist's materials to overcome the privilege.”).

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At the very least, given the First Amendment nature of the privilege, it seems

clear, as Zerilli itself implies, that some determination must be made that the public interest in

disclosure outweighs the public interest behind the privilege. That is precisely what Judge Tatel

concluded in Miller, 397 F.3d at 1001 (Tatel, J., concurring) (citing and quoting Zerilli, 656 F.2d

at 712 & n.46). Recognizing that in many leak investigations, “a test focused on need and

exhaustion will almost always be satisfied,” Judge Tatel reasoned that a further balancing test

was necessary: the court must weigh “the two competing public interests lying at the heart of the

balancing test”—“the public interest in compelling disclosure, measured by the harm the leak

caused, against the public interest in newsgathering, measured by the leaked information’s

value.” Id. at 998 (Tatel, J., concurring). Judge Tatel was writing about the common law

privilege, rather than the First Amendment privilege, because Miller involved a grand jury

subpoena, to which the First Amendment privilege has been held inapplicable. But Judge Tatel

expressly acknowledged that his approach found “its basis in Zerilli” and an earlier First

Amendment case, Carey v. Hume, 492 F.2d 631 (D.C. Cir. 1974), as well as the Justice

Department’s guidelines for subpoenaing journalists, 28 C.F.R. § 50.10. Id.; see also id. at 997

(Tatel, J., concurring) (comparing his approach to “our civil cases [which] balance ‘the public

interest in protecting the reporter’s sources against the private interest in compelling

disclosure’”) (quoting Zerilli, 656 F.2d at 712). And, in Lee v. Dep’t of Justice, 428 F.3d 299,

302 (D.C. Cir. 2005) (Tatel, J., dissenting from denial of rehearing en banc), Judge Tatel

emphasized that the balancing of competing public interests must be undertaken in applying the

First Amendment privilege as well.2

2 The Court of Appeals was evenly divided (4-4) on whether to grant or deny rehearing en banc in Lee. Lee v. Dept. of Justice, 428 F.3d 299 (D.C. Cir. 2005). And, as noted, the panel neither accepted nor rejected Judge Tatel’s point because it was not argued.

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To overcome the reporter’s privilege, then, the First Amendment requires not only

that the source’s identity be centrally relevant to the issues in the case, but also that there is an

overriding interest in disclosure of the source’s identity. As the Court of Appeals has held, the

information must “go[] to the heart of the matter” and be “crucial to [plaintiff’s] case.” Zerilli,

656 F.2d at 713 (internal quotation omitted); see also United States v. Ahn, 231 F.3d 26, 37 (D.C.

Cir. 2000) (affirming order quashing subpoenas issued to reporters in a criminal case, because

“the reporters’ testimony was not ‘essential and crucial’ to [defendant’s] case and was not

relevant to determining [defendant’s] guilt or innocence”); United States v. Burke, 700 F.2d 70,

77 (2d Cir. 1983) (the information must be “necessary” or “critical” to the maintenance of the

claim); Baker, 470 F.2d at 784 (the information should be “essential” and go to “the heart of” the

plaintiff’s claim); Hutira, 211 F. Supp.2d at 119 (“courts should consider whether the

information sought is of central importance to the litigant’s claim or defense”) (internal quotation

omitted); Alexander, 186 F.R.D. 21, 49 (D.D.C. 1998) (information sought “must go to the very

heart of the plaintiffs’ claim”). As these cases establish, it is not enough that the information

may be relevant to some issue in the case; rather, the information must be so crucial that it is

essential to a just resolution of the issues.

To satisfy his burden, therefore, Dr. Hatfill must demonstrate that the information

disclosed by these sources actually violated the Privacy Act. As the D.C. Circuit long-ago

recognized, the potential that unwarranted civil discovery would “threaten journalistic

independence” requires Courts to examine the nature of the plaintiff’s allegations and only

permit discovery when it would support a valid claim. See McBride v. Merrell Dow and Pharm.

Inc., 717 F.2d 1460, 1466-67 (D.C. Cir. 1983) (“[T]o minimize [discovery’s] adverse impact

upon press freedom,” the First Amendment requires that “discovery be limited initially to the

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extent feasible to those questions that may sustain summary judgment.”) (emphasis added).3 The

same principles (which in McBride were applied in the context of a libel case) hold true under

the Privacy Act as well, where the journalists whose independence is being threatened are not

even parties alleged to have engaged in wrong-doing. See, e.g., Wright v. F.B.I., 385 F. Supp. 2d

1038, 1041-42 (C.D. Cal. 2005) (denying plaintiff’s motion to compel the identity of journalist’s

confidential sources on the ground that plaintiff had not otherwise established that the

information would constitute a Privacy Act violation); see also Zerilli, 656 F.2d at 714 (holding

that the privilege is stronger where reporters are non-parties).

The fundamental flaw in Dr. Hatfill’s motion to compel is that the specific

disclosures that were reported by these journalists are not actionable under the Privacy Act. As

explained below, the information that they reported was not personal to Dr. Hatfill, and the

identities of the sources for that information thus cannot be considered “essential” to the issues in

this case. What is more, even if the disclosures could be actionable under the Privacy Act, Dr.

Hatfill knows that they came from the defendant agencies. As he himself has argued, the

specific identities of the sources are immaterial.

A. The Disclosures at Issue Do Not Constitute Privacy Act Violations.

1. The Privacy Act Only Protects Information from Disclosure if it is Truly Personal in Nature.

With certain exceptions that are not relevant here, the Privacy Act prohibits

agencies of the executive branch from disclosing “any record which is contained in a system of

records” to an unauthorized party. 5 U.S.C. § 552a(b). Whenever “records pertaining to an

individual have been improperly disclosed,” that individual is entitled to bring a civil action for

3 See also Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F2d 583, 597 (1st Cir. 1980) (requiring plaintiff to establish facial validity of libel claims before intruding upon journalists’ privilege).

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damages and attorneys fees, Lee, 413 F.3d at 55, contingent on the ability to prove actual

damages flowing from the disclosure, Doe v. Chao, 540 U.S. 614, 620-23 (2004).

The type of information that may support such a cause of action is carefully and

narrowly defined:

[T]he term ‘record’ means any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his education, financial transactions, medical history, and criminal or employment history and that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph. . . .

5 U.S.C. § 552a(a)(4) (emphases added). That definition cannot be stretched to include the

contents of these reporters’ articles.

There are at least three core principles of statutory construction that must guide

the Court’s interpretation of what constitutes a “record” under the Privacy Act. First, by creating

a civil action for damages against the United States, the Privacy Act constitutes a limited waiver

of sovereign immunity; as such it must be construed narrowly, with any ambiguity resolved

against Dr. Hatfill. See Tomasello v. Rubin, 167 F.3d 612, 618-19 (D.C. Cir. 1999) (“This

provision of the Privacy Act is a waiver of sovereign immunity and, as such, ‘must be construed

strictly in favor of the sovereign, and not enlarge[d] . . . beyond what the language requires.’”)

(quoting United States v. Nordic Village, Inc., 503 U.S. 30, 34 (1992)). This limitation applies

not just to the question whether the government may be held liable at all, but also to the “scope”

of what it may be held liable for. Lane v. Pena, 518 U.S. 187, 192 (1996); see also Doe v. Chao,

306 F.3d 170 (4th Cir.) (same in the context of the Privacy Act), aff’d 540 U.S. 614 (2004).

Thus, when choosing between two readings of the statute, one that would impose liability and

another that would deny it, the Court is required to find in favor of denying liability so long as

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that reading of the statute is even “plausible.” Tomasello, 167 F.3d at 618; see also Dep’t of

Army v. F.L.R.A., 56 F.3d 273, 277 (D.C. Cir. 1995) (same). This is so, the Supreme Court has

explained, because whenever plausible alternative readings exist, the government’s waiver of

sovereign immunity is not “unambiguous,” and is therefore also unenforceable. Nordic Village,

Inc., 503 U.S. at 37.

Second, for information to be “about an individual” so as to qualify as a “record,”

something more must be shown than the mere fact that the information can be linked to an

individual by name or other identifying characteristic. This is because the statute instructs that a

“record” is a piece of information that is both “about an individual” and identifiable through the

presence of “his name, or the identifying number, symbol, or other identifying particular

assigned to the individual, such as a finger or voice print or a photograph.” 5 U.S.C.

§ 552a(a)(4). Because the court is required to give both parts of the definition an independent,

non-duplicative meaning, Murphy Exploration & Prod. Co. v. Dep’t. of Interior, 252 F.3d 473,

481 (D.C. Cir. 2001), it follows that a particular piece of information can only qualify as a

“record” if it is about an individual in some greater sense than through its association with that

individual’s name or other identifying characteristics.

Third, and finally, the type of information that can qualify as a record under the

Privacy Act is limited to items which are similar in nature to information about a person’s

“education, financial transactions, medical history, and criminal or employment history.” 5

U.S.C. § 552a(a)(4). Those are the examples Congress gave to illustrate its definition of a

“record,” and while that definition is expressly “not limited to” the examples listed, id., anything

else that is held to be a record must share the same core attributes:

The words ‘including, but not limited to’ introduce a non-exhaustive list that sets out specific examples of a general

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principle. Applying the canons of noscitur a sociis and ejusdem generis, we will expand on the remedies explicitly included in the statute only with remedies similar in nature to those enumerated.

United States v. Philip Morris, Inc., 396 F.3d 1190, 1200 (D.C. Cir. 2005) (citing Dong v.

Smithsonian Institution, 125 F.3d 877, 879 (D.C. Cir. 1997) (interpreting the Privacy Act)); see

also Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114-115 (2001) (“Where general words

follow specific words in a statutory enumeration, the general words are construed to embrace

only objects similar in nature to those objects enumerated by the preceding specific words.”);

Wash. State Dep’t of Social & Health Servs v. Guardianship Estate of Keffeler, 537 U.S. 371,

384 (2003) (same).

Applying these principles, it is clear that the Privacy Act cannot be read to

create a private right of action against the United States whenever federal agents reveal

information that was gathered in the course of a criminal investigation, even when that

information has been associated in the government’s system of records with a person’s name.

The Privacy Act does not, as Dr. Hatfill appears to contend, prohibit all government “leaks”

about a criminal investigation. Indeed, “[a]s the legislative history indicates, the Privacy Act

was primarily concerned with the protection of individuals against the release of stale personal

information contained in government computer files to other agencies or private persons.”

Cochran v. United States, 770 F.2d 949, 959 n.15 (11th Cir. 1985). “The legislative history of

the Act does not evidence any intent to prevent the disclosure by the government to the press of

current, newsworthy information of importance and interest to a large number of people.” Id.;

see also Establishment of a Federal Privacy Board: Hearing on S. 3418 Before the Senate

Gov’t. Operations Comm., 93d Congress (1974), reprinted in Legislative History of the Privacy

Act of 1974, S. 3418, Public Law 93-579: Source Book on Privacy 899 (U.S. Gov’t Print. Off.

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1976) (Privacy Act involves “necessarily a balancing process by which we seek to resolve the

right of the individual to be left alone with the public and other individuals rights ‘to know.’”).

This Court has twice underscored these principles. In Houston v. Dep’t of

Treasury, 494 F. Supp. 24 (D.D.C. 1979), the Court reviewed the Privacy Act’s legislative

history, and in particular, the Congressional findings that supported its enactment:

[T]he increasing use of computers and sophisticated information technology, while essential to the efficient operations of the Government, has greatly magnified the harm to individual privacy that can occur from any collection, maintenance, use, or dissemination of personal information . . . .

Houston, 494 F. Supp. at 27-28 (quoting Privacy Act, Pub. L. No. 93-579 § 2(a), 88 Stat. 1896

(1974)). Finding that “[t]hese provisions are a clear indication that the Congress did not intend

the Act to apply to all information in the Government's hands,” id. at 28, the Court held that the

Privacy Act had the more limited goal of “avoid[ing] indiscriminate circulation of sensitive

information about an individual’s private affairs among government agencies,” id. (emphasis

added). See also id. at 28 n.6 (“The Court believes that any steps to broaden the scope of the

Act to the dimensions proposed by plaintiff should be taken by the Congress.”). Likewise, in

Tobey v. N.L.R.B., 807 F. Supp. 798 (D.D.C. 1992), the Court reviewed its decision in Houston

and adopted it, concluding that information was outside the Privacy Act if it was not truly

personal in nature. Id. at 801. “The fact that the information, when considered contextually

and in conjunction with other information, might be useful to a supervisor in reviewing [an

individual]’s work does not of itself bring such information within the protection of the Privacy

Act.” Id. (emphasis added)

As this Court concluded in Houston and Tobey, what the Privacy Act actually

prohibits is disclosure of information that is truly personal in nature, and in order for the

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disclosure to give rise to civil liability, the person whose records were disclosed must be able to

demonstrate actual, compensable harm resulting from the disclosure. Chao, 540 U.S. at 620-23.

There is no support in the statute for Dr. Hatfill’s claim that the term “record” includes the

observations and conclusions of government officials investigating a crime—a class of

information that is so broad and amorphous as to lose all connection with the specific examples

of “records” Congress provided to guide the courts’ interpretation. Cf. Philip Morris, 396 F.3d

at 1200. At the very least, there is ambiguity over whether the Privacy Act was intended to cover

such information, and ambiguity is not enough to warrant a determination that sovereign

immunity has ben waived. Tomasello, 167 F.3d at 619.

As explained below, the disclosures about which Dr. Hatfill complains (at least as

they relate to the stories authored by Messrs. Isikoff, Klaidman and Lengel) do not fit within the

definition. The disclosures made to these reporters were of an entirely different and public

character. Indeed, the only truly personal and private information that was reported by Messrs.

Isikoff, Klaidman and Lengel came not from the agency defendants in this case, but from

colleagues and agents of Dr. Hatfill himself.

2. Information Newsweek’s Michael Isikoff Obtained from the Department of Justice or FBI.

Newsweek reporter Michael Isikoff testified that the following “disclosures” were

made to him by confidential sources within one of the agency defendants.4 None constitutes the

sort of “personal” information that might reasonably be thought to give rise to liability upon the

government under the Privacy Act:

4 Mr. Isikoff explained that as to some of this information he could no longer be sure if it came from his source or a source used by his colleague, Mr. Klaidman.

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• The fact that, when investigators brought bloodhounds to Dr. Hatfill’s apartment, the dogs were “barking and howling and straining at their leashes.” Ex. A (Isikoff Tr. 63:18-67:4). Further, that the dogs became “agitated” and “went crazy.” Id. at 77:21-78:78:20; 79:3-19.5

• That this occurred as part of an investigation in which detectives “brought the dogs to various locations frequented by a dozen people they considered possible suspects.” Id. at 74:15-75:19.

• That investigators were wary of falsely implicating a suspect, as characterized by the quote: “Richard Jewell looms large around here. We’ve got to be careful.” Id. at 91:12-20.

• That after months of frustration, investigators came to believe they were “finally on the verge of a breakthrough.” Id. at 98:2-12.

• That investigators had witnessed Dr. Hatfill “pitch[] loads of his belongings into a dumpster behind his apartment,” observations that caused some investigators to “wonder[]” whether Dr. Hatfill was disposing of evidence. Id. at 106:10-21.

• The fact that years before the anthrax attacks were perpetrated, Dr. Hatfill had authored a novel forecasting a scenario along much the same lines as actually occurred. Id. at 123:15-124:10. Further, that investigators characterized this as “intriguing but inconclusive.” Id. at 124:11-18.6

• The fact that investigators made the decision to seek out a warrant to search Dr. Hatfill’s apartment after witnessing the above events. Id. at 110:21-111:1.

During the course of Mr. Isikoff’s deposition, it became clear that the information he had

obtained from investigators was about the investigation, rather than about Dr. Hatfill himself. As

Mr. Isikoff explained, “the bulk of [my] reporting would have been done prior to any attention

being given to Dr. Hatfill.” Id. at 137. And even once Dr. Hatfill was identified by the Attorney

5 Dr. Hatfill cites testimony to the effect that disclosures such as this one were disliked by investigators, who feared that “leaks” would retard their ability to solve the case. Mot. at 13. Dr. Hatfill misses the point. That there may be other reasons for investigators not to want to reveal information publicly has no bearing on whether the Privacy Act prohibits their doing so.

6 There was nothing personal or confidential about this novel; rather, it had been on file with the United States Copyright Office since at least 1998, when it was registered by a friend of Dr. Hatfill’s under both their names. See Laura Meckler, Hatfill Novel Depicts Terror Attack, Associated Press, Aug. 13, 2002. Moreover, as Dr. Hatfill’s spokesperson explained, Dr. Hatfill had attempted to have the novel published but could not find any takers. Id.

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General as a person of interest, Mr. Isikoff was not speaking to investigators “about” Dr. Hatfill,

other than in the context of that investigation. Id. at 143:20-144:2 (“[W]hen you say information

‘about Hatfill,’ it would have been information about the investigation and where it stood vis-à-

vis Hatfill. It would have been part of that.”). There was, in short, nothing private about Dr.

Hatfill’s involvement in the investigation.

Indeed, the only truly personal or private information in Mr. Isikoff’s reporting

had come not from a Department of Justice or FBI source, but from Dr. Hatfill’s own friends and

colleagues, some of whom had learned their information from Dr. Hatfill himself:

Q. Mr. Isikoff, what was Source C’s connection to the investigation at the time of your conversation with him?

A. He was friendly with Hatfill and had worked with him and talked to him about the investigation.

Id. 94:2-7 (emphasis added); see also id. at 93:5-8 (testifying that Source C was not, at the time

Mr. Isikoff spoke with him, an employee of the FBI or DOJ).

Q. Which details in Exhibit 92 do you remember discussing with Source C . . . ?

A. Some of the details about the security clearance and his work at—and some of his scientific work.

Q. And some of the scientific work? Can you point to a—

A. Yeah, I mean, the—his work at USAMRIID, his work on the biological agents, his concerns about biowarfare.

Q. His employment history, essentially.

A. Employment—yeah, and what he was working on.

Id. at 96:18-97:11 (emphasis added). (The identity of that source is not at issue in this motion as

he was not employed by one of the agency defendants. Id. at 93:5-8). Mr. Isikoff testified that

he likely learned similar information from Dr. Hatfill’s spokesman. Id. at 207:19-208:5.

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In sum, one may question whether the government should have disclosed the

information about its investigation that was disclosed to Michael Isikoff. But none of it was

personal information about Dr. Hatfill within the meaning of the Privacy Act.

3. Information Newsweek’s Daniel Klaidman Obtained from the Department of Justice or FBI.

A second Newsweek reporter, Daniel Klaidman, was also deposed, and he testified

to the same effect as his colleague Mr. Isikoff—that any information he learned from his

confidential source within the Department of Justice was information about the investigation, not

personal information about Dr. Hatfill:

• Mr. Klaidman confirmed that his confidential source had also provided information about the bloodhounds and their reaction when brought to Mr. Hatfill’s apartment—“particularly, the ‘barking . . . howling and straining.’” Ex. B (Klaidman Tr. at 52:21-53:2).

• That the dogs had similar reactions at other locations to which they had been taken, including an apartment connected with Dr. Hatfill’s girlfriend and a restaurant where he had eaten. Id. at 69:9-17.

• As Mr. Isikoff also learned, that investigators “believed they were on the verge of a breakthrough,” id. at 72:5-10, but that nevertheless, “officials say they aren’t close to making any arrests in the case.” Id. at 87:9-22.

• That investigators characterized themselves as having been “particularly careful” in the investigation, again because of concerns of repeating mistakes from the Richard Jewell investigation. Id. at 88:1-21.

• That, at the time of the anthrax attacks, Dr. Hatfill was using Cipro, a drug designed to ward off and prevent anthrax infection. Id. at 92:5-12.7

• That investigators had been acting on a “tip” when they searched a pond in Frederick, Maryland. Id. at 102:15-103:7.

7 Dr. Hatfill may attempt to argue that this constitutes information about his “medical history.” But it was Dr. Hatfill and his attorneys who revealed the substantive aspects of his medical history when they told reporters that Dr. Hatfill was prescribed the drug after sinus surgery; indeed, Dr. Hatfill’s public contention has been that the disclosure was misleading precisely because it did not delve further into his medical history. See Transcript, 60 Minutes, The Anthrax Case, March 11, 2007 (“Mr. Connolly: . . . But what they don’t leak is the fuller truth, which is in fact he was on Cipro because a doctor gave it to him after sinus surgery.”)

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• That investigators believed they had a “eureka moment” when they discovered a plastic box submerged in the pond. Id. at 109:1-7.

How identifying the source for that information could possibly establish a Privacy Act case

remains a mystery.

4. Information The Washington Post’s Allan Lengel Obtained from the Department of Justice or FBI

Dr. Hatfill’s deposition of Washington Post reporter Allan Lengel brought him no

closer to any disclosures implicating the Privacy Act. Mr. Lengel testified he learned the

following from employees of the agency defendants:

• The fact that, after finding potential evidence submerged in a Maryland pond, investigators returned with a “plan to conduct a more ‘thorough’ search.” Ex. C (Lengel Tr. at 50:15-51:21).

• That the renewed search had been prompted by “a hypothetical statement Hatfill had made about anthrax,” id. at 58:19-59:4, and was to include draining the Maryland pond. Id. at 70:11-71:7; id. at 96:22-97:5.

• That the evidence investigators had previously found in the pond consisted of “a clear box, with holes that could be used to accommodate gloves to protect the user as he worked. Also recovered were vials wrapped in plastic.” Id. at 72:14-73:7.

• That tests for the presence of anthrax on the recovered evidence were “continuing, after two rounds of tests produced conflicting results.” Id. at 95:1-96:1.

• Later, that lab tests “showed no traces of anthrax bacteria” on the material recovered from the pond. Id. at 104:5-105:1.

• That the results obtained by draining the Maryland pond were a “disappointment” to investigators who had hoped the lead would prove more fruitful. Id. at 109:9-20. All that had been found were “a hodgepodge of items – a gun, a bicycle, fishing lures – none of which appeared to be linked to the case.” Id. at 110:13-111:13.

• The fact that public court files would reveal Dr. Hatfill had previously been convicted of driving under the influence. Id. at 133:16-134:10. Mr. Lengel then “went to court and just dug [the records] up.” Id. at 133:21-22.

• That investigators had “narrowed the likely source [of the anthrax] to a short list of labs, including Fort Detrick, the Dugway Proving Ground in Utah, and Louisiana State University.” Id. at 141:6-143. Further, that Dr. Hatfill continued

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to be a “key focus” of the investigation, but that “[e]ven if the tests point to one laboratory, it may not be clear who had access to the infectious bacteria.” Id. at 143:9-22.

5. Dr. Hatfill Is Not Complaining of Actual Privacy Act Violations.

It should now be clear why Dr. Hatfill chose not to devote any part of his motion

to compel to a discussion of the testimony he has already obtained, or the further testimony he

would receive if the motion were granted. There are, in general, three types of disclosures that

Dr. Hatfill asked reporters about in their depositions, and none of them rises to the level of a

Privacy Act violation.

First, there is information that on its face has nothing to do with Dr. Hatfill, and is

only indirectly about him to the extent that any information about the anthrax investigations is

about Dr. Hatfill. Examples of this type include revelations that investigators had obtained

evidence from a pond in Maryland, were testing evidence for traces of anthrax, or were focusing

their search on certain government laboratories as the potential source of the anthrax. Second,

there is information about how investigators’ subjectively viewed the information they were

gathering—such as the statements to the effect that some agents believed they were on the verge

of a breakthrough in the case; that they thought there had been a “eureka moment” when

evidence was discovered in the Maryland pond; and that they were disappointed when those

leads failed to generate useful evidence. Third, there is information about objective facts learned

by investigators through their observations, such as the disclosure that dogs reacted in a certain

way when brought to Dr. Hatfill’s apartment, or that he was seen disposing of some of his

belongings in a dumpster.

Even assuming that any of this information was contained within a system of

records at the defendant agencies, it is not the sort of “personal” information protected from

disclosure by the Privacy Act. See Houston 494 F. Supp. at 28 (information must relate to an

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individual’s “private affairs”); Tobey, 807 F. Supp. at 801 (disagreeing that information was

“about” plaintiff simply because it could be understood as referring to him “when considered

contextually and in conjunction with other information.”). In blurring the distinction between

public and private information, Dr. Hatfill’s motion threatens to impose liability far “beyond

what the language [of the Privacy Act] requires”—a result that cannot be squared with principles

of sovereign immunity. Tomasello, 167 F.3d at 619.

In this significant respect, this case is distinguishable from Lee v. Dept. of Justice.

In Lee, the plaintiff was employed by the Department of Energy, a defendant in the case. 413

F.3d at 55. Wen Ho Lee alleged that the defendant agencies had disclosed personal information

lying at the heart of the Privacy Act—including “his and his wife’s employment history, their

financial transactions, details of their trips to Hong Kong and China, details of the investigation

and interrogation of Lee, and purported results of polygraph tests, all of which were disclosed in

the press and should have been a part of personnel or classified records.” Id. at 56. While Dr.

Hatfill may attempt to draw parallels between his case and Lee, based on the fact that in both

cases details of the investigation were disclosed to the public, the fact remains that in Lee the

plaintiff alleged disclosure of the very sort of personal records protected by the Privacy Act.

There were no comparable disclosures regarding Dr. Hatfill. Indeed, there is nothing remotely

comparable between the type of information disclosed to Messrs. Isikoff, Klaidman and Lengel

and the things Congress used to illustrate what it meant when it said a “record” could not be

disclosed—i.e., information concerning a person’s educational background, financial

transactions or medical history. 5 U.S.C. § 552a(a)(4).

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B. Even Assuming the Disclosures to Messrs. Isikoff, Klaidman and Lengel Could Constitute Privacy Act Violations, the Specific Identities of Their Sources Are Immaterial.

There is a second reason why Dr. Hatfill cannot demonstrate that the identities of

journalists’ confidential sources are centrally relevant to his lawsuit. Even assuming that he

could identify some disclosures to Messrs. Isikoff, Klaidman or Lengel that could have been

violations of the Privacy Act, he has already established that the disclosures were made by the

defendant agencies. Under the Privacy Act, that is all the information he needs. See 5 U.S.C.

§ 552a(g)(4) (“In any suit brought under the provisions of subsection (g)(1)(C) or (D) of this

section in which the court determines that the agency acted in a manner which was intentional or

willful, the United States shall be liable to the individual . . .”) (emphasis added). The specific

identities of his sources are not relevant. In Lee, the Court of Appeals explicitly noted that the

identity of the agencies would be “arguably . . . sufficient” to establish a Privacy Act violation.

413 F.3d at 61. The Court did not decide the issue because the reporters in that case, unlike the

reporters in this case, had not identified the agencies where their sources were employed. Id. In

this case, the issue left open in Lee has been framed and, given the command of the First

Amendment privilege, must be decided before disclosure of confidential sources is ordered.

In the recent round of motions addressed to the government’s invocation of the

law enforcement privilege, Dr. Hatfill and the government staked out two diametrically opposed

positions on the elements that must be shown to establish a violation of the Privacy Act.

Specifically, the government argued that the Privacy Act contains both an intent requirement and

a “rule of retrieval” such that the disclosure of a “record” by a government official is not

actionable unless the information was actually retrieved from a government file in order to make

that disclosure. See Def.’s Mem. in Opp. to Pl.’s Mot. to Compel Discovery and Overrule Def.’s

Assertion of Law Enforcement Privilege (Docket 125) at 12. According to the government’s

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position, the only way Dr. Hatfill can meet his burden on those elements is if he can identify the

specific individuals who disclosed information to the press. Id.

As Dr. Hatfill persuasively argued in his papers, that is simply not so. See Pl.’s

Reply Mem. in Support of Mot. to Compel Discovery (Docket 131). Dr. Hatfill has amassed a

mountain of evidence that establishes the requisite intent—conduct “somewhat greater than gross

negligence.” Hill v. U.S. Air Force, 795 F.2d 1067, 1070 (D.C. Cir. 1986) (citations omitted).

As Dr. Hatfill explained, “[t]he first-hand testimony of the reporters is that all of the FBI and

DOJ personnel who leaked information to them made the disclosures at issue deliberately; the

leakers were not unconscious, sleepwalking, intoxicated, injured, deceived by the reporter, or

otherwise unable to control themselves.” Pl.’s Reply Mem. at 11 (citing testimony). Similarly,

Dr. Hatfill debunked the government’s strict interpretation of the “retrieval rule,” noting that the

Court of Appeals has expressly recognized that “[r]estricting the [Privacy] Act’s coverage to

disclosure of information retrieved from the record would allow, for example, an agency

investigator who, in the process of making a record, learned of some information damaging to an

individual to make public that information without violating the Act.” Bartel v. Fed. Aviation

Admin., 725 F.2d 1403, 1411 n.15 (D.C. Cir. 1984); see also Pl.’s Reply Mem. at 16-17.

In a recent order, the Court left it to Dr. Hatfill to decide whether to pursue his

Privacy Act claims with the identities of the agencies confirmed, but without specific knowledge

of all of the specific sources (as noted above, with respect to some disclosures, such as those of

then-Attorney General Ashcroft, the identities of the sources are clear). See Order at 2-3 (Mar.

30, 2007). Respectfully, however, it is now necessary to decide that issue before the journalists’

assertions of privilege can be overcome. If Dr. Hatfill has the better of the argument, as we

believe he does, his need to know the identity of any particular source is obviously greatly

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diminished, and the identities of these reporters’ sources cannot be considered “essential” to a

just resolution of this case.8

C. The Public Interest in Newsgathering Is Not Outweighed by any Public Interest in Disclosure of Confidential Sources

Even assuming that there is a substantial Privacy Act claim in this case that can

only be proven through the identification of confidential sources, there remains the overriding

question whether the public interest in litigating that private right of action outweighs the public

interest underlying the First Amendment privilege. As Judge Tatel explained in his separate

opinion in Miller, a privilege that requires nothing more than a showing of centrality and

exhaustion is not much of a privilege at all. “[A] test focused on need and exhaustion will

almost always be satisfied” when the claim is that information was leaked by a government

official. Miller, 397 F.3d at 998 (Tatel, J., concurring). Eventually, the plaintiff will be able to

meet that test in virtually every leak case. But the Court of Appeals has emphasized that the

First Amendment privilege is to be sustained “in all but the most exceptional cases.” Zerilli, 656

F.2d at 712. Unless the First Amendment privilege is simply the constitutional equivalent of a

scheduling order—requiring only that the reporters testify last—something more must be

required to overcome the privilege.

The additional element is what Judge Tatel explained in his separate opinion in

Miller and in his opinion dissenting from the denial of rehearing en banc in Lee. In every case in

which the First Amendment privilege is invoked, the court must weigh “the public interest in

8 As non-party journalist James Stewart also argues, there is no basis at all for suggesting that Dr. Hatfill needs to identify sources in order to recover on his claims under sections 552a(e) (9) & (10) of the Privacy Act, alleging that the government failed to establish appropriate safeguards for protecting confidential information and failed to respond in the face of persistent leaks. See Docket No. 102 (Amended Compl.) ¶¶ 120, 122. Those allegations depend upon the agencies’ policies, not the actions of any particular individual. To the extent Dr. Hatfill recovers

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compelling disclosure, measured by the harm the leak caused, against the public interest in

newsgathering, measured by the leaked information’s value.” Miller, 397 F.3d at 998 (Tatel, J.,

concurring); see also Lee, 428 F.3d at 302 (Tatel, J., dissenting from denial of rehearing en

banc). In explaining the sort of cases in which a leak caused great harm “while providing

minimal benefit to public debate,” Judge Tatel referred to cases in which the leaks “apparently

caused the deaths of several CIA operatives,” leaks of “the design for a top secret nuclear

weapon,” and leaks of “plans for an imminent military strike.” Id. at 996 (Tatel, J., concurring).

“In such cases”—where there is massive public harm and little public benefit—“the reporter’s

privilege must give way.” Id. By contrast, news reports “alerting the public to the then-

underappreciated threats from al Qaeda” and “[n]ews reports about a recent budget controversy

regarding a super-secret satellite program” were offered as examples of cases in which the

“balance of harm and news value . . . strongly favors protecting newsgathering methods.” Id. at

996-97.

The news reports by Messrs. Isikoff, Klaidman and Lengel fall into the latter

category. First, “the public interest in compelling disclosure, measured by the harm the leak

caused,” is insubstantial. Judge Tatel’s examples of harm warranting disclosure all involved

substantial harm to the public—indeed, to the national security. Dr. Hatfill does not assert any

harm to the public at all. He seeks to recover on a private right of action for injury to his

reputation. Without minimizing Dr. Hatfill’s personal interest in protecting his reputation, that

harm is not the type of substantial, public harm that Judge Tatel suggested was necessary to

overcome the reporter’s privilege.

full damages on those claims, he would not need to identify confidential sources at all. Messrs. Isikoff, Klaidman and Lengel incorporate by reference Mr. Stewart’s arguments.

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Second, “the public interest in newsgathering [in this case], measured by the

leaked information’s value,” was substantial. In reporting on the government’s progress in the

anthrax investigation, these reporters were providing their readers with information of significant

public interest. The reports advanced the public’s interest in knowing about the progress of a

vitally important investigation and satisfied the public’s need for reassurance about the nature of

the threat that it was facing. There was, at the time, considerable uneasiness about the prospect

of more anthrax mailings, and any report of progress in the investigation was reassuring. There

was also considerable fear that the anthrax mailings, which took place just one week after the

9/11 attacks, were part of a continuing assault by foreign terrorists against the United States.

Any indication that the source of the anthrax mailings was domestic, rather than foreign, was

doubly reassuring to the public.

It is easy with hindsight to criticize the disclosure of information about this

investigation. But this was an extraordinary time, when the public was facing unprecedented

threats. In the wake of a catastrophic terrorist attack on New York and Washington, American

citizens were faced with an entirely new and different threat—a biological terrorist attack of a

kind never before perpetrated on its soil. That attack was perpetrated not just against ordinary

citizens—five of whom were murdered—but against the government and its institutions,

prompting the evacuation of the United States Senate and the need to take additional security

measures throughout the country. The public was understandably in desperate need of

information and reassurance, and the information published by these journalists served that need.

In his dissent from the denial of rehearing en banc in the Lee case, Judge Tatel

explained in no uncertain terms how he would strike the balance in a Privacy Act case such as

this one:

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Without slighting Lee’s private interest in receiving compensation for governmental malfeasance, his claim pales in comparison to the public’s interest in avoiding the chilling of disclosures about what the government then believed to be nuclear espionage. This case is thus very different from In re Grand Jury. Not only was that a criminal case, but there we held that the grand jury’s interest in securing the name of a source suspected of committing a felony outweighed any applicable privilege. Lee’s private interest in this civil suit implicates no similarly critical concerns, and it’s hard to imagine how his interest could outweigh the public’s interest in protecting journalists’ ability to report without reservation on sensitive issues of national security.

Lee v. Dept. of Justice, 428 F.3d 299, 302 (D.C. Cir. 2005) (Tatel, J., dissenting from denial of

rehearing en banc) (emphasis added) (citation omitted).

If there were technical violations of the Privacy Act here—and for the reasons

stated, we maintain that there were not—there were also substantial benefits to the reporting of

these journalists, who depend upon a strong reporters’ privilege to carry out their work. This is

not the “rare” or “extraordinary” case, we respectfully submit, in which to cast their privilege

aside.

II. DR. HATFILL CANNOT OVERCOME THE REPORTERS’ PRVILEGE UNDER FEDERAL COMMON LAW.

Although the well-established First Amendment privilege should be sufficient to

protect the journalists in this case, additional protection is afforded by Federal Rules of Evidence

501, which invites the federal courts to develop common law rules of privilege that are not

strictly mandated by the Constitution. Forty-nine states and the District of Columbia recognize

some form of reporter’s privilege in civil cases, and in all but a handful of these jurisdictions,

those protections are either absolute or can only be overcome upon a showing that the benefits of

disclosure outweigh the chilling effect disclosure might have on the journalist’s ability to gather

and report newsworthy information. While the First Amendment privilege establishes the

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minimum commands of the Constitution, a reporter’s privilege under the common law may be

crafted more broadly, “in the light of reason and experience.” Fed. R. Evid. 501.

A. The Existence of a Federal Common-Law Reporters’ Privilege Remains an Open Question.

As an initial matter, this Court should place no stock in Dr. Hatfill’s misleading

assertion that “[t]he Court of Appeals on multiple occasions has refused the media’s invitation to

create such a [common-law reporters’] privilege.” Mot. at 9 (emphasis added). What Dr. Hatfill

means by that assertion is that in two recent cases the D.C. Circuit has found it unnecessary to

address the issue at all. In the first case, In re Grand Jury Subpoena, Judith Miller, 397 F.3d 964

(D.C. Cir. 2005) (“Miller”), in which the three-judge panel split three ways, the Court found it

unnecessary to decide the issue because the identity of the reporters’ confidential sources was

directly relevant to a claimed national security breach that the Court deemed sufficient to

overcome any such privilege, id. at 973-74. The second time, in Lee, supra, the Court found that

the issue was not preserved for their review, because the appellants had failed to argue the point

in the district court and had only raised it superficially in the Court of Appeals. Lee, 413 F.3d at

57 n.2. Neither result provides a basis for refusing to address the question here. If anything,

Miller and Lee serve only to show that the matter is ripe for this Court’s review.9

9 In Lee v. Dept. of Justice, 401 F. Supp. 2d 123 (D.D.C. 2005), a decision in the Lee case which followed the Court of Appeals’ decision earlier that year, the district court considered the question of a common law reporter’s privilege and declined to recognize it; the court’s reasoning was erroneous in three important respects. First, determining at the outset that the First Amendment privilege required only a two-part showing, the court reasoned that it would somehow “circumvent” the Court of Appeals’ decision in Lee to recognize a common law privilege that was broader in scope. Id. at 139. For reasons explained elsewhere in this memorandum, both of those conclusions are wrong. See, infra pp. 7-9, 34-35. Second, the court opined that Judge Tatel’s balancing test is “inherently unworkable,” id., notwithstanding the fact that the very same test has been applied in various state and federal courts for decades without event. Third, the court foresaw a difficulty in determining, in other cases not before it, a “reasonable or useful definition of who would be a ‘reporter’” under the privilege. Id. at 140. No

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B. Rule 501 and the Jaffee Framework

The recognition of testimonial privileges by federal courts is controlled by Rule

501 of the Federal Rules of Evidence. That rule provides in relevant part that “the privilege of a

witness. . . shall be governed by the principles of the common law as they may be interpreted by

the courts of the United States in the light of reason and experience.” Fed. R. Evid. 501.

Reason, experience and precedent support a privilege protecting reporters from the compelled

disclosure of confidential sources, regardless of the need of private litigants.

Through Rule 501, Congress “directed federal courts to ‘continue the

evolutionary development of testimonial privileges.’” Jaffee v. Redmond, 518 U.S. 1, 9 (1996)

(quoting Trammel v. United States, 445 U.S. 40, 47 (1980)). While recognizing that testimonial

privileges are an obstacle to the truth that should not be lightly granted, id., the Rule tolerates

exceptions when there is an overriding public interest in recognizing the privilege. Id. at 9-10.

Federal courts are therefore authorized to “define new privileges” when “reason and experience”

warrant. Id. at 8 (internal quotation omitted).

As the D.C. Circuit recently explained:

Jaffee provided guidance for lower courts in determining whether to establish a new privilege under Fed. R. Evid. 501, instructing that courts consider whether the privilege is “rooted in the imperative need for confidence and trust,” 518 U.S. at 10, 116 S.Ct. 1923 (internal quotation marks omitted), whether the privilege would “serve public ends,” id. at 11, 116 S.Ct. 1923 (internal quotation marks and alteration omitted), what evidentiary benefit would arise from denying the privilege, id. at 11-12, 116 S.Ct. 1923, and the States’ rules on the subject, id. at 12-15, 116 S.Ct. 1923.

such problem has prevented the courts from considering who is entitled to invoke the First Amendment reporters’ privilege, and it is of no greater significance here. Moreover, as the Supreme Court explained in Jaffee, common law privileges are to be crafted on the facts of each case, without regard to whether other problems may arise in the future. Jaffee, 518 U.S. at 18.

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In re Subpoena Duces Tecum Issued to CFTC, 439 F.3d 740, 750 (D.C. Cir. 2006) (emphasis

added). Judged by these standards, common law privileges are to be crafted on a case-by-case

basis that does not purport to “delineate [the privilege’s] full contours in a way that would

govern all conceivable future questions in [that] area.” Jaffee, 518 U.S. at 18 (internal quotation

omitted).

C. The Reporters’ Privilege is Firmly Established in State Law, And Should Be Made Equally So in Federal Court.

The reporters’ privilege easily meets each of the criteria for recognition under

Rule 501 and Jaffee.

First, there is no question that this privilege is “rooted in the imperative need for

confidence and trust.” Jaffee, 518 U.S. at 10. Messrs. Klaidman and Lengel have provided

sworn affirmations relating to the importance of being able to promise confidentiality to their

ability to gather and report the news. See Ex. D (Klaidman Aff. ¶¶ 4-14); Ex. E (Lengel Aff. ¶¶

3-9, 11). Their experience has already been broadly recognized by the courts. See, e.g., Zerilli,

656 F.2d at 711 (“Compelling a reporter to disclose the identity of a source may significantly

interfere with this news gathering ability”); Ashcraft, 218 F.3d at 287 (“If reporters were

routinely required to divulge the identities of their sources, the free flow of newsworthy

information would be restrained and the public’s understanding of important issues and events

would be hampered in ways inconsistent with a healthy republic.”); Baker, 470 F.2d at 782

(“Compelled disclosure of confidential sources unquestionably threatens a journalist’s ability to

secure information that is made available to him only on a confidential basis”).

Second, it should go without saying that “public ends” are served by the free flow

of information promoted by this privilege. See, e.g., Zerilli, 656 F.2d at 711 (“In general, when

striking the balance between the civil litigant’s interest in compelled disclosure and the public

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interest in protecting a newspaper's confidential sources, we will be mindful of the preferred

position of the First Amendment and the importance of a vigorous press.”).10 Indeed, by

definition, the privilege advocated in these pages will be overcome in any case in which the

public interest did not favor preserving the anonymity of sources. See, infra at 32-33 (citing the

majority of jurisdictions in which the privilege is overcome only upon a showing that the

public’s interest in disclosure outweighs the benefit to maintaining a source’s confidentiality); In

re Grand Jury Subpoena, Judith Miller, 397 F.3d 964 (D.C. Cir. 2005) (“Miller”) (Opinion of

Tatel, J.) (advocating a rule that would override the privilege upon a showing that “sources

released information more harmful than newsworthy”).

It was on the strength of these first two considerations alone that the United States

Court of Appeals for the Third Circuit recognized a common law reporters privilege:

The interrelationship between newsgathering, news dissemination and the need for a journalist to protect his or her source is too apparent to require belaboring. A journalist’s inability to protect the confidentiality of sources s/he must use will jeopardize the journalist’s ability to obtain information on a confidential basis. . . . This in turn will seriously erode the essential role played by the press in the dissemination of information and matters of interest and concern to the public.

Riley v. City of Chester, 612 F.2d 708, 714 (3d Cir. 1979) (citations omitted). Concluding that

“[t]he legislative history of Rule 501 manifests that its flexible language was designed to

encompass . . . a reporter’s privilege not to disclose a source,” id. at 714, the Riley court adopted

this privilege even in the absence of broad supporting authority among the States.

10 See also Gonzales v. National Broadcasting Co., Inc., 194 F.3d 29, 35 (2d Cir. 1999) (grounding the constitutional reporter’s privilege in the “paramount public interest in the maintenance of a vigorous, aggressive and independent press”) (quotations omitted); Baker, 470 F.2d at 782 (“The deterrent effect such disclosure is likely to have upon future ‘undercover’ investigative reporting . . . threatens freedom of the press and the public’s need to be informed.”)

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Since then, the case for a common law reporter’s privilege has only become more

compelling. The third element in Jaffee is an examination of whether comparable rules exist at

the State level:

Because state legislatures are fully aware of the need to protect the integrity of the factfinding functions of their courts, the existence of a consensus among the States indicates that “reason and experience” support recognition of the privilege. In addition . . . any State’s promise of confidentiality would have little value if the patient were aware that the privilege would not be honored in a federal court. Denial of the federal privilege therefore would frustrate the purposes of the state legislation that was enacted to foster these confidential communications.

518 U.S. at 13 (emphasis added).

Those considerations weigh heavily in favor of recognizing the reporters’

privilege here. Every state except Wyoming recognizes some form of the reporter’s privilege.

Thirty-four jurisdictions adopted these protections by statute, notwithstanding that reporters

already had the benefit of First Amendment protections available in any federal or state court. It

should therefore come as no surprise that the Legislatures in these States did not merely adopt

statutes that tracked the First Amendment, but rather, in the majority of states, voted in favor of

privileges that are arguably more robust: nineteen, including the District of Columbia, adopted

privileges that are absolute in the circumstances presented by this case (a civil suit not involving

a libel claim against the newspaper);11 an additional eleven adopted qualified privileges that can

11 See D.C. Free Flow of Information Act, D.C. Code § 16-4701 to 4704; Ala. Code § 12-21-142; Ariz. Rev. Stat. Ann. §§ 12-2214, 12-2237; Cal. Evid. Code § 1070; Del. Code Ann. tit. 10, §§ 4320-26; Ind. Code Ann. §§ 34-46-4-1, 34-46-4-2; Ky. Rev. Stat. Ann. § 421.100; Md. Code. Ann., Cts. & Jud. Proc. § 9-112; Mich. Comp. Laws Ann.§§ 767.5a, 767A.6; Minn. Stat. Ann. §§ 595.021-.025; Mont. Code Ann. §§ 26-1-902, 26-1-903; Neb. Rev. Stat. Ann. §§ 20-144 to 20-147; Nev. Rev. Stat. Ann. 49.275, 49.385; N.J. Stat. Ann. §§ 2A:84A-21.1 to -21.5; N.Y. Civ. Rights Law § 79-h; Ohio Rev. Code Ann. §§ 2739.04, 2739.12; Or. Rev. Stat. §§ 44.510 to .540; 42 Pa. Cons. Stat. Ann. § 5942(a); and R.I. Gen. Laws §§ 9-19.1-1 to 9-19.1-3.

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only be overcome upon a showing that the need for disclosure outweighs the public interest in

maintaining confidentiality, or that absent disclosure a “miscarriage of justice” will result.12 In

only four jurisdictions does the statutory privilege merely require a showing of central relevance

and exhaustion.13 Finally, of the sixteen states that did not pass shield laws but instead came to

recognize the reporters’ privilege through judicial decisions, fully fifteen require Courts to

balance the public and private interests before the privilege can be invaded;14 only one State’s

Courts do not incorporate such a requirement.15

In short, while there is no disputing the existence of variation amongst the states’

reporters’ privileges, the overwhelming consensus is that there is a need for such a privilege, and

that it should not be overcome whenever a litigant demonstrates the centrality of the information

and proof of exhaustion of alternative sources without also showing that the public interest

12 See Alaska Stat. §§ 09.25.300 to -.390; Ark. Code Ann. § 16-85-510; Colo. Rev. Stat. § 13-90-119; Conn. Gen. Stat. Ann. § 52-146t; 735 Ill. Comp. Stat. Ann. 5/8-901 to 8-909; Fla. Stat. Ann. § 90.5015; La. Rev. Stat. Ann. §§ 45:1451 to -1459; N.D. Cent. Code § 31-01-06.2; N.M. Stat. Ann. § 38-6-7; Tenn. Code Ann. § 24-1-208; H.B.1366, 60th Leg., Reg. Sess. (Wash. 2007) (signed April 27, 2007; effective July 22, 2007).

13 See Ga. Code Ann. § 24-9-30; N.C. Gen. Stat. § 8-53.11; Okla. Stat. Ann. tit. 12, § 2506; S.C. Code Ann. § 19-11-100. 14 See Idaho v. Salsbury, 924 P.2d 208 (Idaho 1996); De Roburt v. Gannett Co., 507 F. Supp. 880 (D. Haw. 1981) (federal court sitting in diversity); Winegard v. Oxberger, 258 N.W.2d 847 (Iowa 1977); Kansas v. Sandstrom, 581 P.2d 812 (Kan. 1978); In re Letellier, 578 A.2d 722 (Me. 1990); In re John Doe Grand Jury Investigation, 574 N.E.2d 373 (Mass. 1991); Missouri ex rel. Classic III, Inc. v. Ely, 954 S.W.2d 650 (Mo. App. 1997); New Hampshire v. Siel, 444 A.2d 499 (N.H. 1982); Hopewell v. Midcontinent Broadcasting Corp., 538 N.W.2d 780 (S.D. 1995); Vermont v. St. Peter, 315 A.2d 254 (Vt. 1974); Brown v. Virginia, 204 S.E.2d 429 (Va. 1974); W. Virginia ex rel. Hudok v. Henry, 389 S.E.2d 188 (W. Va. 1989); Kurzynski v. Spaeth, 538 N.W.2d 554 (Wis. Ct. App. 1995). In Mississippi and Utah, these protections have so far only been recognized by trial courts. See Hawkins v. Williams, Hinds County Circuit Court, No. 29,054 (Miss. Cir. Court, March 16, 1983) (unpublished opinion); Lester v. Draper, No. 000906048 (Utah 3d Dist. Ct. Jan. 16, 2002) (unpublished opinion).

15 See Dallas Morning News Co. v. Garcia, 822 S.W.2d 675 (Tex. App. 1991).

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would be better served by disclosure than it already is by preserving reporters’ confidentiality.

As in Jaffee, the absence of a federal common law privilege with the same level of protection

serves only to “frustrate the purposes of the state legislation that was enacted to foster these

confidential communications.” Jaffee, 518 U.S. at 13.

There is no basis for Dr. Hatfill’s argument that it would somehow “[d]epart from

[p]recedent” to recognize a stronger privilege under the common law than otherwise exists under

the Constitution. Mot. at 11.16 For one thing, there is every reason to think that the First

Amendment privilege is no less strong than the common law privilege for which we argue. See

pp. 7-9 & 24-27, supra. But regardless of the scope of the First Amendment privilege, it should

not limit the scope of the common law privilege. The First Amendment existed long before

Congress entrusted the creation of a federal common law of evidentiary privileges to the “reason

and experience” of the federal courts, and there is no basis for concluding that evidentiary

privileges arising under Rule 501 are somehow limited by the scope of similar rights already

granted by the Constitution. An examination of related privileges demonstrates the fallacy in Dr.

Hatfill’s argument. The attorney-client privilege, for example, was recognized under Rule 501,

see In re Sealed Case, 107 F.3d 46, 48-49 (D.C. Cir. 1997), and while it serves values that are

also protected by the Sixth Amendment, its dimensions are clearly broader than the minimum

16 Dr. Hatfill’s citation to In re Special Counsel Investigation, 338 F. Supp. 2d 16 (D.D.C. 2004), for the proposition that the court thought the arguments for a reporters’ privilege were “weaker” in the “‘context’ of the common law,” Mot. at 10, is incorrect and misleading. What Chief Judge Hogan was referring to as the “weaker . . . context” of that case was the fact that in Branzburg v. Hayes, 408 U.S. 665 (1972), the privilege had been denied to a journalist because of the overriding public interest in a grand jury’s investigation of criminal behavior, whereas, in the case then-before the court, a grand jury was investigating matters of paramount national security—namely, the illegal identification of a covert CIA operative. In re Special Counsel, 338 F. Supp. 2d at 19. Neither “context” supports Dr. Hatfill here, as he seeks to overcome the privilege purely to serve his own private interests.

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required by the Constitution. See, e.g., United States v. Kelly, 790 F.2d 130, 136-37 (D.C. Cir.

1986) (violation of attorney-client privilege is not a per se violation of the Sixth Amendment).

Likewise, federal recognition of the clergy-communicant privilege arises under Rule 501, Cox v.

Miller, 296 F.3d 89, 102 & n.6 (2d Cir. 2002), yet once again, its protections are more robust

than the Constitutionally-required minimum. While a denial of that privilege can, under certain

circumstances, be a violation of either the Free Exercise clause or the Establishment clause, that

is not always the case because the privilege extends into areas not protected by the Constitution.

Id. at 101-07.

In short, the absence of a meaningful federal reporters’ privilege undermines the

well-reasoned policy judgments of forty-four states and the District of Columbia. Congress has

delegated the task of fashioning a federal common law of evidentiary privileges to the “reason

and experience” of the federal courts. See Fed R. Evid. 501.17 This Court should take up that

task here and recognize the existence of a reporters’ privilege under the federal common law—

one that includes the requirement imposed by most States that the private need for disclosure be

balanced against the public interest in maintaining the confidentiality of reporters’ sources.

17 There is no basis for Dr. Hatfill’s melodramatic assertion that recognition of a common-law privilege under Rule 501 would “fly in the face” of what he terms “Congress’s repeated rejection” of a statutory reporter’s privilege. Mot. at 10 & n.7. No inference can be drawn from Congress’s decision not to enact a privilege on its own, because under Rule 501, discretion to adopt such a privilege has already been delegated by Congress to the courts. See In re Lindsey, 148 F.3d 1100, 1108 (D.C. Cir. 1998) (finding it the courts’ “authority and duty under Rule 501 . . . to interpret privileges”) (emphasis added); Trammel, 445 U.S. at 47 (explaining that Congress rejected a proposal to supplant Rule 501 with nine congressionally-enacted privileges, and in so doing, its “purpose [] was to ‘provide the courts with the flexibility to develop rules of privilege on a case-by-case basis,’ 120 Cong.Rec. 40891 (1974) (statement of Rep. Hungate), and to leave the door open to change.”).

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D. Dr. Hatfill Cannot Overcome a Privilege that Balances His Private Interest Against the Public Interest in Receiving Pertinent News Information.

In Miller, the court was divided three ways on the question whether a common-

law reporters’ privilege should be recognized at all, but all three members of the panel agreed

that even if it did exist, it would be overcome in that case “for the reasons set forth in the

separate opinion of Judge Tatel.” Miller, 397 F.3d at 973-74. As explained above, see pp. 24-

27, supra, Judge Tatel’s analysis, which requires a balancing of the public interest in

newsgathering against the asserted public interest in disclosure, requires that the motion to

compel in this case be denied.

CONCLUSION

For the foregoing reasons, the Court should deny Dr. Hatfill’s motion to compel

further testimony from Michael Isikoff, Daniel Klaidman and Allan Lengel.

Respectfully submitted,

WILLIAMS & CONNOLLY LLP

/s/ Kevin T. Baine (No. 238600) Kevin Hardy (No. 473941) Carl R. Metz (No. 490633) 725 Twelfth Street, N.W. Washington, D.C. 20005 (202) 434-5000 (202) 434-5029 (facsimile) Counsel for Michael Isikoff, Daniel Klaidman and Allan Lengel Dated: May 23, 2007