Got Newsworthy Information? Remember The Privacy Act!

By on November 17, 2005 in Current Events with 0 Comments

Many readers will remember the case of Wen Ho Lee, the scientist employed by the Department of Energy at Los Alamos National Laboratory, who was investigated by the FBI for suspicion of espionage benefiting China. He was never prosecuted for espionage. But he was indicted on 59 counts of mishandling computer files at the Lab. He was imprisoned for 9 months and eventually the government withdrew 58 counts and Dr. Lee pled guilty to one count of misusing computer files. He was sentenced to time served.

Meanwhile, Dr. Lee filed suit against several federal agencies accusing them of violating his rights under the Privacy Act of 1974 (5 U.S.C. section 552a (2000)), by leaking information about him to the media in order to shift blame for their own security failures at the Lab. (Wen Ho Lee v. Department of Justice, U.S.D.C.D.C., Civil Action No. 99-3380 (RMC)).

After extensive discovery against the Department of Justice, the FBI and the Department of Energy, Dr. Lee was not able to get to the identity of the officials who leaked the information to the press. He therefore subpoenaed the six reporters who wrote stories on his case, citing confidential government sources. One of them was Walter Pincus, a Pulitzer-Prize winning reporter for the Washington Post, who wrote four stories involving Dr. Lee.

In the course of his civil suit, Dr. Lee requested that the District Court hold Pincus in civil contempt for refusing to identify his sources. At his first deposition, Pincus refused to answer any questions concerning the identity of his sources, invoking reporter’s privilege 117 times. In response to a motion to compel testimony filed by Dr. Lee, the court last year ordered Mr. Pincus to appear at a second deposition. The reporter appeared, but continued to refuse to answer the questions about his confidential sources, contending that the information was protected by a “reporter’s privilege.”

Dr. Lee then filed an “Application for an Order to Show Cause Why Non-Party Journalist Walter Pincus Should Not Be Held in Civil Contempt). The court granted that motion in January, and has just issued a Memorandum Opinion in the case finding that the information that Pincus refuses to disclose “is not protected by a reporter’s privilege under the First Amendment or the common law.” The judge goes on to say “As there is clear and convincing evidence that Mr. Pincus refused to provide answers to deposition questions concerning the identity of his sources despite this Court’s June 29, 2004, Order to do so, Mr. Pincus will be held in civil contempt.” (CA No. 99-3380, Memorandum Opinion, November 16, 2005, p. 2)

In the D.C. Circuit, “a reporter’s First Amendment privilege must yield to a plaintiff’s need for information…(1) that is “central” to a plaintiff’s case and (2) as to which the plaintiff has exercised all reasonable alternatives to obtain elsewhere.”

Judge Collyer found that both tests are met in Dr. Lee’s case. Judge Collyer levied a fine of $500 per day on Mr. Pincus and also ordered him to contact each of his government sources immediately to let them know of the court’s order in case they want to release him from his pledge of confidentiality under the circumstances. (p. 33).

Any government official who may be tempted to leak personal information as a tactic for dealing with a similar situation should pay close attention to this language in the court’s opinion:

To accept Mr. Pincus’s argument that he is protected by privilege from revealing whether Government officials illegally leaked information about Dr. Lee would undermine the fundamental purpose of the Privacy Act. Congress has provided a private right of action for individuals who are harmed by a Government agency’s improper disclosure of confidential records. Accordingly, the law expressly discourages the kind of leaks that are at issue in this action. “[T]he protections of the Privacy Act do not disappear when the illegally disclosed information is leaked to a journalist, no matter how newsworthy the government official may feel the information is.” (p. 29, citing Lee, 413 F.3d at 60).

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.