Posts Tagged ‘New York Times’

FOI Update: Federal appeals court rules against reporter’s privilege in James Risen case

A federal appeals court ruled July 19 that the First Amendment does not protect reporters from being forced to testify against confidential sources suspected of sharing unauthorized information with them, according to The New York Times.

This decision against the so-called reporter’s privilege came from the U.S. Court of Appeals for the Fourth Circuit in Richmond, Va. The court ruled James Risen, an author and a national security reporter for the Times, must testify against a former Central Intelligence Agency official charged with giving him classified information. Risen said he’s willing to go prison to protect his source, according to the Times.

The information was not for an article in the Times. It was for a chapter in Risen’s 2006 book, “State of War,” that portrays efforts by the CIA. under the Clinton administration to trick Iranian scientists as “reckless and botched in a way that could have helped the Iranians gain accurate information,” The Times said.

Chief Judge William Byrd Traxler Jr. justified the ruling by writing: “Clearly, Risen’s direct, firsthand account of the criminal conduct indicted by the grand jury cannot be obtained by alternative means, as Risen is without dispute the only witness who can offer this critical testimony.”

The 118-page decision comes one week after Attorney General Eric Holder announced new guidelines for leak investigations to supposedly tighten the circumstances for obtaining reporter’s records.

“It’s very disappointing that as we are making such good progress with the attorney general’s office and with Congress, in getting them to recognize the importance of a reporter’s privilege, the Fourth Circuit has taken such a big step backwards,” Gregg Leslie, the legal defense director for the Reporters Committee for Freedom of the Press, told the Times.

For more information about the case, read The New York Times article.

Kara Hackett is SPJ’s Pulliam/Kilgore Freedom of Information intern, a freelance writer and a free press enthusiast. Contact her at or on Twitter: @KaraHackett.

FOI Daily Dose: Privacy exemption limits most FOIA requests

Privacy is the most frequently cited exemption for denying Freedom of Information Act requests, according to a study by the Investigative Reporting Workshop at the American University School of Communication.

The study compiled 15 years of annual FOIA  report data for 13 cabinet-level departments, excluding Veterans Affairs and Health and Human Services because they mostly receive individual requests for personal records.

Of the nine exemptions that limit the free flow of information act, agencies used privacy exemptions more than 232,000 times last year, or 53 percent of the time, to deny requests.

The exemption has not been applied so broadly since the fiscal year of 2002 in the wake of Sept. 11.

The exemption is meant to protect personnel and medical flies, information that would constitute “a clearly unwarranted invasion of personal privacy” and law enforcement information that “could reasonably be expected to constitute an unwarranted invasion of personal privacy,” according to the study.

FOI Daily Dose: More sunshine in Florida, NY shield law saves reporter from testifying

More Sunshine in the Sunshine State

There’s a little more sunshine in the Sunshine State after the 2013 legislative session passed an unusually high number of bills supported by Florida’s First Amendment Foundation (FAF). The FAF announced June 14 that the legislature passed 10 bills they supported, including a bill three years in the making that guarantees citizens the right to speak at government meetings and a transparency bill that requires Florida’s chief financial officer to post agency contacts online.

But the battle for more open government rages on as the legislature also passed 14 bills the FAF opposed and a dozen new exemptions limiting access to public records and open meetings. The running total of exemptions is now “well over 1,000,” according to the FAF.

New York shield law saves reporter from the stand

Thanks to the strong New York shield law, a New York Times freelancer will not be forced to testify about his personal observations involving the arrest of two Occupy Wall Street protesters.

Times freelancer Colin Moynihan wrote a blog post about the Jan. 10 arrest of two protesters who refused to leave Zuccotti Park. When the protesters said they were arrested without warning, city officials subpoenaed Moynihan to determine if the arrest was wrongful, according to the Reporters Committee for Freedom of the Press (RCFP). They claimed Moynihan was an “unbiased” witness, unlike other bystanders who would had an allegiance with either the police or the protesters.

But U.S. District Court Judge Jed S. Rakoff of New York ruled in an 8-page opinion on June 11 that a reporter’s personal observations are protected, like his notes, and a journalist cannot be forced to testify unless there are no alternative sources, according to RCFP.

Rakoff wrote: “Exempting firsthand observations from the scope of the reporter’s privilege would severely chill journalists from engaging in valuable firsthand reporting, such as performed by Moynihan here.”

Kara Hackett is SPJ’s Pulliam/Kilgore Freedom of Information intern, a freelance writer and a free press enthusiast. Contact her at or on Twitter: @KaraHackett.

FOI Daily Dose: Obama’s covert Trans-Pacific Partnership agreements: ‘a very, very big deal’

When President Obama promised to create “an unprecedented level of openness in government” on his first day in office, he wasn’t lying.

Depending on your perspective and interest in open government, you might believe we’ve plummeted to an unprecedented low.

In a scathing New York Times op-ed published June 2, two members of the Public Citizen’s Global Trade Watch criticized Obama for his latest secrecy scandal regarding draft agreements of the Trans-Pacific Partnership (TPP), a sweeping trade agreement that threatens to override U.S. laws by rewriting large sections of non-trade policies in 24 of its 29 chapters.

Global Trade Watch director Lori Wallach and research director Ben Beachy say the agreement could affect Americans’ daily lives by setting new rules for food safety, financial markets, copyright laws, the cost of medicine and more. They call it “the most significant international commercial agreement since the creation of the World Trade Organization in 1995.”

But beyond the agreement’s sketchy provisions, Wallach and Beachy are outraged that the White House has yet to show the text to members of Congress he’s pushing to pass the legislation by October. Although the agreement has been under negotiation since 2008, the executive branch has resisted requests from members of Congress to see the text-in-progress or even attend negotiations as observers.

Wallach and Beachy accuse the president of withholding the draft agreements to accelerate its approval on Capitol Hill in an “extraordinary and rarely used procedure” that is “a huge assault on the principles and practice of democratic governance.” They said the president wants to sign the agreement before Congress votes on it, so the post-facto vote will be quick and painless —without much debate or any amendments.

But Dave Johnson, a fellow with the Campaign for America’s Future, reminds Americans that the agreements haven’t been hidden from everyone. A group of about 600 (mostly big business) trade “advisers” have seen draft texts — one reason Johnson calls it a “corporate takeover” and “a very, very big deal.”

“If it is agreed to by the Senate and signed by the president it will override American laws in many areas,” Johnson wrote in a Huffington Post blog.

Apparently someone has already leaked information to Wallach and Beachy, who say the agreement’s copyright provisions rival the harsh 2012 Stop Online Piracy Act, and its plan to relocate domestic manufacturing offshore is more expansive than the 1994 North American Free Trade Agreement.

But regardless of what you think about these provisions or “free trade,” Wallach and Beachy say it’s time to blow the whistle on hidden government agreements and covert attempts to pass broad legislation.

UPDATE: House votes to hold Holder in contempt over ‘Fast and Furious’

Fast and Furious Contempt Vote

UPDATE: 4:44 p.m. ET: The House has voted to hold Eric Holder in contempt, 255-67.

The House Committee for Government Oversight and Reform will proceed today with the contempt vote against Attorney General Eric Holder. At this point, however, Representative Darrell Issa (R-CA) said he is not accusing theWhite House or Holder for knowing about the Fast and Furious operation. Rather, the Committee is looking for documents to reveal why the Department of Justice initially denied and later admitted to knowledge of the scandal.

“When did they know we were lied to and what did they do about it?”  Issa asked, according to CBS News.

The Fast and Furious operation refers to a 2009 gun-walking tactic resulting in more than 2000 guns to be walked across the Arizona/Mexico border in an attempt to trace the guns to suspected gun smugglers. The operation ultimately failed and resulted in unaccounted weapons and the death of border agent Brian Terry.

The National Rifle Association has given its support to the contempt proceedings and say today’s vote will influence which candidates they will back in the future. This move by the NRA may influence not only House Republicans but pro-gun House Democrats as well.

Whistleblower Involved in Gunwalking

Adding to the mess surrounding the contempt proceedings is the integrity of a key whistleblower, John Dodson, an ATF agent who has been implicated in a separate but concurrent gunwalking operation.  Dodson and his former supervisor, Dave Voth, have both claimed to have been against what has been termed the “Fernandez case,” referred to by Darrell Issa on ABC’s “This Week.”  Fernandez involves six guns that  Dodson purchased and delivered to gun-smuggling suspect Isaias Fernandez on June 1, 2010, according to Fox.  However, there is some dispute on whether Dodson instigated the transfer of guns or was simply following Voth’s orders.

An investigative report by Fortune claims the entire Fast and Furious episode is simply politics run out of control. In defense of Voth, Fortune says the ATF agents were legally limited by what they could do to curb the flow of guns. Arizona statute allows for easy purchase and resale of guns, and ATF had been in hot water for some of its earlier efforts at gun interception and agents’ hands were tied. In spite of ATF’s of gun walking, they unable to convince federal prosecutors to pursue the matter, Fortune said. Prosecutors said they needed more evidence than what had already been put forth.  In order to collect such evidence, the ATF unsuccessfully attempted a wiretap operation and subsequently, the gun smuggling continued.  The fallout was agent Brian Terry’s death and Dodson’s claim that Voth had pursued Fast and Furious despite his and others’ disapproval. Dodson also referred to an email in which Voth cites a “schism” between those who supported walking the guns and those who did not.  However, Voth claims Dodson and others reported events out of context as an attempt at retribution, and the schism referred to wire tapping, not gunwalking. *Update, 6/29/2012: The schism in the email actually referred to disputes among coworkers about the wiretap shift scheduling. Dodson was opposed to working weekends, and agents pulled in to help from other projects did not want to work the less desirable shifts.  Fortune further reported that Dodson walked the guns and then left on vacation without finalizing the operation or successfully tracking the guns.

Politically motivated? Does it matter?

Each side is decrying the political motivations of the other. Republicans cite an anti-gun agenda behind the gunwalking while Democrats see an attempt to embarrass the president during an election year. While there is likely some political motivation on both sides, my main question is whether the public has a right to the information Issa is requesting. Or is Obama’s use of executive privilege — the first in his administration — warranted in interest of preserving the integrity of an ongoing investigation and internal deliberations?

More info:

Whitney is the summer Pulliam/Killgore intern with SPJ. She recently graduated from Brigham Young University after studying journalism. Connect with her via email – –  or on twitter – @whitevs7

*Know something about Freedom of Information that you think we should cover in a blog post? We want to hear from you! Send information to It may be featured in a future post.


FOI DAILY DOSE: NYT reporter subpoena argued in court, agencies set to revise FOIA policies (maybe)

Judge hears debate on Risen’s motion to quash subpoena

New York Times reporter James Risen’s attorneys argued his case in court Thursday, fighting for his right not to testify in a CIA leak case.

U.S. District Judge Leonie Brinkema heard arguments from Risen’s lawyers and from the government, which sought to convince the judge that the reporter’s testimony is a key factor in their case against ex-CIA officer Jeffrey Sterling. Sterling is accused of leaking information about a CIA operation targeting Iran’s nuclear program to Risen.

Information about the operation appeared in the Risen’s 2006 book “State of War: The Secret History of the CIA and the Bush Administration.”

Risen’s attorney, Joel Kurtzberg, pointed out that the government hadn’t shown what other available testimonies they had before subpoenaing Risen – a move that should be a last resort only, according to the Reporters Committee for Freedom of the Press.

Government prosecutors argued that the jury should be privy to information that will provide more certainty in their verdict, including Risen’s testimony.

Risen’s attorneys counter-argued that the prosecution needs to prove that his testimony is a critical, rather than simply supplemental, piece of its case in order to overcome the state shield law.

Risen has said he would testify on information that has already been published or is already known, such as the fact that his writing is accurate and that statements from an unidentified source actually came from an unidentified source. He has said he isn’t willing to reveal any confidential sources. If forced to testify, he could be jailed for his refusal.

Prior to Thursday’s court proceedings, the government responded Wednesday to a court order in which Brinkema asked the court to review Risen’s 2010 subpoena and related documents and decide whether they could be unsealed and released with certain redactions. The judge said this could better inform Sterling’s prosecution, according to Secrecy News.

In response, the government said that the 2010 grand jury proceedings involving Risen should remain secret.

For more information on Thursday’s court arguments, including how the prosecution compared the Sterling case to the recent Casey Anthony case in Florida, read this Politico article by Josh Gerstein.

Agencies with FOIA changes on agendas – will they follow through?

Several government agencies are considering changes to their FOIA regulations in the next six months, according to a Unified Agenda report released Thursday.

Whether these changes will actually come to pass, however, is uncertain.

In recent years, many of the entries agencies have provided for Unified Agenda reports have been for plans that probably wouldn’t be put into action within the next year, according to OMB Watch.

Some of the FOIA regulations listed in Unified Agenda reports have been listed multiple times over the course of several years without being completed.

While the Unified Agenda details the FOIA plans of several agencies, there may be other departments planning similar policy changes that haven’t listed them in their entries for the report because they aren’t explicitly required to include FOIA changes.

– Morgan Watkins

Morgan Watkins is SPJ’s summer Pulliam/Kilgore Freedom of Information intern and a University of Florida student. Reach her by email ( or connect with her on Twitter (@morganwatkins26).

FOI DAILY DOSE: NYT, WSJ reporters face fight against gov over subpoenas

News orgs file brief supporting WSJ reporter in subpoena controversy

The Reporters Committee for Freedom of the Press and 46 other media organizations filed a friend-of-the-court brief supporting Wall Street Journal reporter Jesse Eisinger’s motion to quash a subpoena calling for his testimony in a New York court case.

The case involves a Massachusetts couple that is suing Goldman Sachs for providing advice for a financial partnership that failed when the technology company they were dealing with collapsed under problems with financial fraud.

Eisinger (now a reporter for ProPublica and a 2011 Pulitzer Prize winner) is called to testify on how he found information about the company’s financial issues, which the couple argues Goldman Sachs should also have been able to find if they had done a thorough investigation.

A trial judge said she doubted whether Eisinger’s testimony would be relevant in the case, according to the Reporters Committee for Freedom of the Press.

SPJ has spoken out in Eisinger’s defense as well.

Gov hanging tough in subpoena against Risen

New York Times reporter James Risen may have a tough fight in court July 7 as he fights a federal subpoena in a CIA leak case.

Government prosecutors highlighted the need for Risen’s testimony in their case against Jeffrey Sterling. The ex-CIA officer is accused of leaking information about an agency operation involving Iran’s nuclear program to Risen.

The federal government believes Risen’s input is critical to the case because the testimony of Sterling’s wife from a grand jury investigation may not be available in the trial due to spousal privilege, prosecutors said.

An intelligence officer who learned that Sterling may have been a source for Risen may be unable to testify in the trial as well due to hearsay rules, which a government brief argues makes Risen an even more important player in the case.

The New York Times’ decision not to run the story on the CIA operation (although information about it later appeared in Risen’s 2006 book “State of War: The Secret History of the CIA and the Bush Administration”) may also weaken arguments for quashing the subpoena, according to Politico.

The prosecution’s brief also said that the idea of a “good leak” of information shouldn’t be entertained by the court because any unauthorized disclosure of classified data undermines the entire system.

In his motion to quash the subpoena, Risen asked the court to consider merits of the leak in terms of the public interest served by newsgathering, according to a Secrecy News blog post.

– Morgan Watkins

Morgan Watkins is SPJ’s summer Pulliam/Kilgore Freedom of Information intern and a University of Florida student. Reach her by email ( or connect with her on Twitter (@morganwatkins26).

FOI DAILY DOSE: Google releases transparency data, NYT articles explore Obama-era open gov

Google: U.S. government biggest requester of private info

Google released transparency information showing the U.S. government to be the biggest requester of private information.

From July to Dec. 2010, the U.S. requested user data 4,601 times. Google complied with 94 percent of those requests, according to a Guardian article.

Brazil had the second-highest number of requests at 1,804, while India took third place with 1,699 requests. The United Kingdom placed fourth with 1,162 requests.

Google’s compliance rate varied by country – India had 79 percent of its requests filled, while the U.K. had 72 percent of them partially or entirely completed.

Private user information was requested more than 14,000 times in the second half of 2010 in 26 developed nations.

NYT articles scrutinize open government under Obama

Two recent New York Times articles took aim at transparency under the Obama administration.

The first piece, a June 25 story by Natasha Singer, focuses on the need for faster, more comprehensive FOIA compliance and overall transparency at the federal level.

Obama called on government agencies to become more open on day one of his presidency, yet only 49 of 90 agencies have made changes to their FOIA procedures in the two-and-a-half years since Obama entered the Oval Office, according to a National Security Archive study.

The story explores some problematic government practices regarding FOIA and methods being pursued to potentially improve the situation, such as the Faster FOIA Act.

It also looks at the still-undisclosed records regarding Fannie Mae and Freddie Mac, two mortgage companies bailed out by the government using taxpayer dollars, as examples of government information that should be readily available but remain private.

A June 26 NYT editorial by Geoffrey Stone, a University of Chicago law professor, questions whether Obama has been a strong supporter of transparency as president.

The verdict: Kind of, but not really.

Stone acknowledges that Obama has taken some action to scale back the Bush administration’s legacy of anti-transparency, but he also points out ways in which Obama has perpetuated it.

One open government success for Obama was his repeal of a 2001 directive by Bush-era Attorney General John D. Ashcroft that allowed the government to classify any information that might hurt national security if disclosed.

As for Obama’s transparency failures, Stone mentions a few key problems. These include the president’s lack of support for whistleblowers and his flip-flopping on the issue of a federal journalist-source privilege, which would allow reporters to better protect their sources’ identities.

When he was a senator, Obama supported the Free Flow of Information Act, which aimed to provide federal protections for journalists. As president, he raised objections to the proposed bill before it later stalled in the Senate.

SPJ has been one of many journalism organizations and news outlets calling for such a law.

– Morgan Watkins

Morgan Watkins is SPJ’s summer Pulliam/Kilgore Freedom of Information intern and a University of Florida student. Reach her by email ( or connect with her on Twitter (@morganwatkins26).

FOI DAILY DOSE: NYT reporter subpoenaed in CIA leak case and Wisconsin voting issues


A New York Times reporter and Pulitzer Prize-winner, James Risen, was subpoenaed by the U.S. Department of Justice for the trial of a suspected government whistleblower.

The accused leaker, Jeffrey Sterling, was indicted in December 2010 by a federal grand jury in Virginia. He is on trial for allegedly providing national defense information to Risen that appeared in a 2006 book called “State of War: The Secret History of the CIA and the Bush Administration.”

No federal law exists that exempts journalists from testifying. Risen’s lawyer told The Associated Press he would attempt to have a judge override the subpoena.

The Society of Professional Journalists has, with other journalism groups and news outlets, pushed for a federal shield law in recent years. The proposed Free Flow of Information Act would protect journalists like Risen from turning over confidential sources and notes in federal cases, though there would be certain national security exceptions.


In Wisconsin, Media Trackers investigated voting practices during the April 5 election using open records requests.

From a small sample of registrations in 15 wards, Media Trackers found evidence of incomplete voter registrations and possible voter registration abuses.

Providing proof of residence for voters was a major problem uncovered by the records request. In one instance, a voter provided an acceptance letter from the University of Minnesota as a proof of residence, which wouldn’t be deemed acceptable under the guidelines by the Wisconsin Government Accountability Board.

– Morgan Watkins

Morgan Watkins is SPJ’s summer Pulliam/Kilgore Freedom of Information intern and a University of Florida student. Reach her by email ( or connect with her on Twitter (@morganwatkins26).

FOI DAILY DOSE: FBI’s secret surveillance and a CIA lawsuit for post-9/11 files

The Electronic Frontier Foundation (EFF) and the U.S. Department of Justice clashed over the nondisclosure of a secret legal memo that justifies the FBI’s ability to access citizen phone records without the inclusion of any oversight or legal process.

EFF filed a FOIA lawsuit Thursday demanding release of the memo, according to an EFF press release.

Last year, a report from the DOJ Inspector General stated the FBI had found a new way to justify this telephone access that was corroborated by an opinion issued by the DOJ’s Office of Legal Counsel.

The report was redacted and failed to disclose the statutes that form the backbone of this legal justification and to explain the kinds of records to which the new exception applies.

The CIA is also facing a FOIA lawsuit.

Filed Wednesday by the American Civil Liberties Union (ACLU), the lawsuit demands records about the CIA Inspector General’s report on the treatment of people detained outside the U.S. after Sept.11. It also requests information on an internal investigation into the Office of the Inspector General itself that was reported in 2007 by The New York Times.

The initial FOIA request was submitted on April 25, according to the lawsuit, but the CIA hasn’t disclosed the records or explained its reasoning for withholding any information.

The lawsuit cites articles about Osama bin Laden’s death and the revival of debates about the use of torture techniques as a key reason for requesting the immediate release of the requested documents.

– Morgan Watkins

Morgan Watkins is SPJ’s summer Pulliam/Kilgore Freedom of Information intern and a University of Florida student. Reach her by email ( or connect with her on Twitter (@morganwatkins26).


Twitter Facebook Google Plus RSS Instagram Pinterest Pinterest LinkedIn

© Society of Professional Journalists. All rights reserved. Legal

Society of Professional Journalists
Eugene S. Pulliam National Journalism Center, 3909 N. Meridian St., Indianapolis, IN 46208
317/927-8000 | Fax: 317/920-4789 | Contact SPJ Headquarters | Employment Opportunities | Advertise with SPJ