Posts Tagged ‘Reporters Committee for Freedom of the Press’

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: Reporters Committee challenges decision hiding records between Army and third-party contractor

The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief earlier this month asking the U.S. Supreme Court to review an appeals court decision about Exemption 5 of the federal Freedom of Information Act, a news release said.

The case, American Management Services LLC, d/b/a Pinnacle v. Department of the Army, is a civil suit between two private real estate companies, Pinnacle and Clark, that worked on a joint project managing private family housing on two Army bases, according to the American Bar Association. Clark learned that Pinnacle engaged in fraud, and it presented a binder of evidence to the Army, so the Army granted Clark permission to sue Pinnacle.

When Pinnacle found out, it asked the Army for the binder and other communications with Clark, but the Army refused to provide them. Pinnacle filed a FOIA request for the documents and received 55 of them, but the Army refused to disclose more than 800 additional pages based on FOIA Exemptions 4 and 5.

The U.S. Court of Appeals in Richmond, Va., ruled the Army’s refusal to disclose its communications with Clark was warranted under Exemption 5 because Clark (the third-party contractor) shares a “common interest” with the government.

The Justice Department calls Exemption 5 “quite broad” and says it “protects ‘inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.’”

It also says Exemption 5 has a work-product privilege for information shared between a government agency and “a party holding common interest with the agency.”

But RCFP is questioning the court’s justification on grounds that Exemption 5 typically only shields inter- or intra-agency records and communications—not records between the government and a third-party.

In a July 3 news release announcing their decision to come alongside Pinnacle, Bruce D. Brown, executive director of RCFP, said:  “Congress was very clear in its intent to limit Exemption 5 to internal government records that could be considered privileged in litigation. Allowing the government to broadly withhold records documenting its interactions with third parties creates a dangerous vehicle for government contractors to hide information from the public. In addition to being in conflict with both legislative and judicial precedent, it would become more difficult for the press and, by extension the public, to engage in effective oversight of contractors’ operations.”

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: 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: NY shield law blocks casino tycoon’s subpoena against Wall Street Journal

Fans of the proposed federal shield law, the Free Flow of Information Act, will be happy to hear that the New York state shield law protected a Wall Street Journal reporter’s rights to keep her email messages and notes concealed from a casino tycoon in trial court last week.

Sheldon Adelson of Las Vegas Sands Corporation wanted records from Wall Street Journal reporter Kate O’Keeffe for an article she wrote in December detailing the wrongful termination of employee Steve Jacobs, former head of Adelson’s Macau casino operations in China.

Jacobs filed a wrongful termination suit in the Nevada court in 2010, and in June 2012, he issued a court filing saying Adelson had “personally approved” a prostitution strategy on Macau properties, according to the Wall Street Journal.

After O’Keeffe published Jacobs’ story, Adelson filed a libel lawsuit Feb. 22 against O’Keeffe. Adelson’s lawyers subpoenaed The Wall Street Journal’s parent company, News Corp., asking for all the newspaper’s communications and documents with Jacobs, as well as O’Keeffe’s phone records with Jacobs since Jan. 1, 2010.

Apparently, they thought O’Keeffe’s records could serve as evidence in Adelson’s defamation suit against Jacobs, according to the Reporters Committee for the Freedom of the Press.

But a four-page opinion by Judge Donna M. Mills on May 31 squashed the subpoena, saying Adelson failed to prove that the material he was seeking was highly relevant, critical to his claim and not obtainable through another reasonable method, which the state shield law requires.

Even so, the decision could be appealed to a higher New York state court, according to the Reporters Committee for the Freedom of the Press.

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: Open government strides in Lone Star State, stampers in Pennsylvania

Lawmakers in Texas passed a series of bills this week to protect reporters and promote open government. One of the most notable is Senate Bill 1368 (an update to the Texas Public Information Act) that keeps public officials from concealing official matters of business by corresponding over private email accounts and other electronic communications.

Such legislation would help reporters at the San Antonio Express-News who are trying to obtain emails that Texas County Commissioner Tommy Adkisson sent to constituents from his private email account regarding official business.

The Express-News won at trial court last fall, but Adkisson appealed to a state appellate court, according to the Reporters Committee for Freedom of the Press, which has supported the Express-News, arguing the emails should be disclosed.

Texas Gov. Rick Perry is expected to approve the proposed legislation.

But despite strides in the Lone Star State, the fight for access to information rages on in Pennsylvania, where the state Department of Environmental Protection is withholding answers about how its extensive natural gas drilling is affecting water contamination in residential wells.

Researchers, reporters, scientists and residents all have a stake in the matter, but the agency says their open records requests are “burdensome.” DEP spokesman Kevin Sunday told NBC10 Philadelphia that the agency receives 1,200 right-to-know requests each year, some of which are too “broadly worded.”

But since the DEP lost an open records case last year against the Scranton Times-Tribune, the Office of Open Records and the Commonwealth Court  have criticized it for poor record keeping.

Sunday, the DEP spokesman, told NBC10 the agency’s records are not incomplete and disorganized, and the DEP “continues to operate with the utmost transparency.”

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.

Media and FOI advocates object to proposed Department of Labor policy restricting press access

Members of the press and freedom of information advocates spoke out Wednesday, June 6, against a proposed Department of Labor policy requiring credentialed media to use government-owned computers and software when reporting on embargoed DOL data.

Committee Chairman Darrell Issa (R-Calif.) called the policy into question during the hearing called by the House Committee for Government Oversight.  President Obama said that his would be the most transparent administration to date, Issa said in his opening remarks, and this policy seems to counter that claim.

Currently, select media enter a secure room to receive pre-released economic data from the Bureau of Labor Statistics and Employment and Training Administration a half hour to an hour before the public release, allowing them time to review and write-up information.  They are then allowed to report the embargoed information using their own software.

*Update: Thanks to Sigma Delta Chi Foundation President and Bloomberg editor Steve Geimann for bringing the following to our attention in an email:  “A key aspect of the new policy is the use of government communication circuits, rather than proprietary lines installed, maintained and controlled by the media organizations.”

The new policy would require media to leave all equipment behind and use materials provided by the Department of Labor, including DOL-issued paper and writing utensils, with seating arrangements as the DOL sees necessary. Media would need to report using computers and software provided by the DOL, ostensibly preventing premature leaks of confidential information.  However, this system would allow the government to see what reporters are writing as they write.

The Reporter’s Committee for Freedom of the Press quoted Daniel Moss, executive editor for economy and international government at Bloomberg, as testifying: “Under the DOL proposal, the government would own and control the reporters’ notebook. This is an unheard of intrusion of government into one of most cherished freedoms.”

Representatives from press entities and freedom of information advocates spoke out against this move, including Lucy Dalglish, executive director of RCFP. Daglish provided testimony.

“The media takes government interference with its work product very seriously. So does the Constitution.  In fact, the First Amendment obligates the government to allow journalists to operate independently from government control,” Dalglish said in her statement to the committee. “Requiring journalists to draft and publish stories using government-owned computers loaded with government-controlled software simply crosses a line the First Amendment clearly drew to separate the press from the government.” (Read her full testimony.)

According to The Associated Press, the media involved with the hearings said, “progress has been made,” but said little about the meetings with government officials.  The hearing also looked into the  DOL’s accuracy on reporting ‘green jobs.’

(Click here to see the DOL’s full proposal.)

Check out video of the hearing and testimonies, or read transcripts of individual testimonies from:

  • Lucy Dalglish, Executive Director of Reporters Committee for Freedom of the Press
  • Rob Doherty, General Manager of Reuters News (US)
  • Daniel Moss, Executive Editor for economy and International Government, Bloomberg News
  • Diana Furchtgott-Roth, Senior Fellow, The Manhattan Institute
  • Dr. Keith Hall, Senior Research Fellow, Mercatus Center, George Mason University
  • John Galvin, Acting Commissioner U.S. Bureau of Labor Statistics
  • Carl Fillichio, Senior Advisor for Communications and Public Affairs, U.S. Department of Labor
  • The Honorable Jane Oates Assistant Secretary for Employment and Training Administration, U.S. Department of Labor

    Correction [6/8/2012]: Daniel Moss was previously misidentified as “executive director of Bloomberg.”

    Whitney is the summer Pulliam/Killgore intern with SPJ. She recently graduated with a BA in Communications, with a print journalism emphasis, from Brigham Young University. Connect with her via email – –  or on twitter – @whitevs7.





FOI DAILY DOSE: NYT reporter may be forced to testify, whistleblowers ask Congress to help protect them

NYT reporter James Risen may not be able to quash subpoena

The third time may not be a charm for New York Times reporter James Risen, who may not be able to quash yet another subpoena from the Justice Department.

Risen filed a motion to quash a subpoena last week that would require him to testify in a criminal court case against ex-CIA agent Jeffrey Sterling, who is accused of leaking information to the reporter about a CIA operation to harm Iran’s nuclear program.

The information on the program was reportedly published in Risen’s 2006 book “State of War.”

A November 2010 ruling by U.S. District Judge Leonie Brinkema, which was made public Tuesday, said that the second subpoena against Risen would be quashed.

But Brinkema also said in the ruling that the longtime NYT reporter may have a tough time escaping a subpoena requiring him to testify in the case, according to the Reporters Committee for Freedom of the Press.

With a criminal trial like Sterling’s, Brinkema said in the ruling that the government may fulfill the legal standard needed to beat Risen’s motion to quash.

If the subpoena holds up, Risen – who has said he won’t reveal any confidential sources – could go to jail for refusing to testify.


Whistleblowers ask Congress for more protections

More than 30 whistleblowers signed an open letter promoting the need for President Obama and Congress to provide better whistleblower protections.

The Whistleblower Protection Enhancement Act of 2010 passed in both the House and the Senate, but was kept from becoming law by an anonymous hold that killed the bill at the end of the congressional session in Dec. 2010.

As of this week, it’s been six months since the bill – then in its third version – died in Congress.

The letter calls for Congress to quickly bring back a reincarnated version of the whistleblower protection bill and finally get it enacted into law, according to a Project on Government Oversight 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 Tip of the Week: RCFP’s Digital Journalist’s Legal Guide

Whether you have your own blog or report stories for online production at a newspaper, you now have an easy-to-use reference guide for all your legal concerns.

The Reporters Committee for Freedom of the Press released its legal guide for digital journalists this week, and it touches on some of the major issues that journalists face when working online.

Each topic is divided into sections that include the history of a legal issue, quick answers to common concerns and links to other helpful resources.

The guide is also integrated with other RCFP Web materials, such as its state and federal guides to open government and The First Amendment Handbook.

Some of the topics covered in the digital guide focus on FOI issues, such as open records concerns and court access problems, but other covered topics that may be of help include privacy invasion issues and Internet regulation rules.

So if you run into a legal quagmire, mosey on over to the RCFP website and take a look at their handy guide.

– 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).


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