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Tripp v. Dep't of Defense

September 30, 2003

LINDA R. TRIPP, PLAINTIFF,
v.
DEPARTMENT OF DEFENSE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Date Emmet G. Sullivan United States District Judge

MEMORANDUM OPINION AND ORDER

In this action, plaintiff Linda Tripp alleges that the United States Department of Defense ("DOD") violated the Privacy Act, 5. U.S.C.' 552a (2003), as well as the Administrative Procedures Act ( "APA " ), 5 U.S.C.' 551 et seq. (2003) and 5 U.S.C.' 701 et seq. (2003), by releasing information related to her application for employment at the George Marshall Center in Germany to the Department of Defense publication Stars and Stripes. The issue now before the Court is whether Ms. Sandra Jontz, a reporter for the DOD Armed Forces Newspaper Stars and Stripes, is entitled to invoke the"reporter's privilege" in response to plaintiff's discovery requests regarding her sources for the article at issue.

I. BACKGROUND

The facts of this case are set forth in detail in this Court's March 30, 2002 Memorandum Opinion and Order granting in part and denying in part defendants' motion to dismiss. Tripp v. Dept. of Def., 193 F. Supp. 2d 229 (D.D.C. 2002). Accordingly, only those facts pertinent to the issue presently before the Court are summarized here.

In or about October 2000, Plaintiff applied for a position as Deputy Director of the Conference Center at the George C. Marshall European Center for Security Studies, a Department of Defense research and training institute located in Gamusch, Germany.*fn1 Several months after she submitted her application, plaintiff was notified that she had been certified as one of the top qualified applicants for the position. She subsequently contacted the Marshall Center by telephone to inquire as to the job application process, and spoke to Mr. Robert Kennedy, the Marshall Center Director. Plaintiff contends that during that conversation she did not give Mr. Kennedy or anyone else the authority to disclose to any third parties information related to her job application.

Plaintiff was scheduled for an interview at the Marshall Center on January 23, 2001. When she arrived at the Center, she was handed a copy of that day' s Stars and Stripes newspaper, which featured an article titled"Linda Tripp up for Job at Marshall Center" and authored by Ms. Jontz. See Pl.'s Opp. to Def.'s Mot. to Dismiss, Ex. 2, Sandra Jontz, Tripp to Interview at Marshall Center, STARS AND STRIPES, at 2 (January 23, 2001). Plaintiff alleges that this article was published in the European and Pacific print editions of Stars and Stripes, the on-line edition of the European edition of Stars and Stripes, and in the electronic"Early Bird" on-line and e-mail publication distributed by DoD. In the article Jontz identified a number of sources, including: unnamed "center officials;" Marshall Center Director Robert Kennedy; an unnamed "Pentagon spokeswoman; " and unnamed "sources close to the Center. " Id. Ultimately, plaintiff was not selected for the Deputy Director position at the Marshal Center.

Plaintiff commenced this action on January 25, 2001, alleging that DOD officials violated her Privacy Act rights by disclosing information contained in a Privacy Act system of records to Stars and Stripes. Plaintiff also claims that DOD failed to make necessary efforts to ensure the accuracy of the released information, to establish adequate rules for personnel with respect to the Privacy Act, and to establish sufficient safeguards to prevent unauthorized disclosures. Finally, Plaintiff asserts an APA claim premised on the alleged violation of a January 6, 2000"reverse FOIA request" to DOD, in which she requested that"no information be released to the news media directly or indirectly related to Mrs. Tripp, unless that information is properly requested under" the FOIA, and plaintiff is first given the opportunity to review any files prior to their release.

On July 25, 2002, Tripp served a notice of deposition and request for documents on Defendant DOD, seeking the production of DOD-employee Sandra Jontz for deposition testimony, as well as Jontz' notes, sources' names, drafts, and any document relating directly or indirectly to Linda Tripp. See Jontz' Mot. for a Protective Order ( "Jontz' Mot. " ), Ex. A, Dep. Notice and Doc. Request Regarding Sandra Jontz. The DOD postponed the deposition on several occasions on the grounds that Ms. Jontz was unavailable, as well as to provide the DOD the opportunity to determine whether it wanted to file a motion for a protective order. Pl.' s Notice of Filing at 1-3. On September 19, 2002, the DOD proposed an October 30, 2002 deposition date, which it believed would provide sufficient time for it to file any objections to the discovery request if it chose to do so, and give the court sufficient time to issue a ruling on any objection made. Id. The DOD subsequently informed plaintiff by letter received after an October 7, 2002 status hearing in this case, that DOD was asserting"the reporter's privilege" with respect to"any information relating to Ms. Jontz' newsgathering sources" for the Stars and Stripes article at issue.

On October 22, 2002, Ms. Jontz, who is not a party to this action, filed a motion for a protective order pursuant to Fed. R. Civ. P. 26(c), officially objecting to Plaintiff' s discovery request. Jontz' Mot. at 1. In so doing, Jontz asserted the A reporter's privilege " with respect to Plaintiff' s discovery of A any information relating to Ms. Jontz' newsgathering sources for the January 23, 2001 Stars and Stripes article at issue " without "first attempting to obtain discovery from alternate sources, " and further requested that plaintiff withdraw the discovery request. Id. Failing that, Jontz asks the Court for a protective order barring plaintiff from seeking discovery regarding her newsgathering activities. In support of her motion, Jontz alleged that the DOD had offered Plaintiff the opportunity to depose Lt. Col. Michael Glenn ( "Glenn " ), an employee of the Marshall Center in Germany, as an alternative to deposing Jontz. Id. at 8-9.

Plaintiff then filed a motion requesting that this Court order the DOD to produce Jontz for deposition testimony, see Pl.' s Notice of Filing, and turn over all documents relating to the Stars and Stripes article in question. Def.' s Notice of Filing at 10. It is plaintiff' s contention that the DOD cannot assert the "reporter' s privilege " because Jontz violated the Privacy Act when she used her position as a DOD employee to obtain information about Tripp' s Marshall Center employment application from plaintiff' s confidential personnel records. Id. at 7-8. Prior to attempting to depose Ms. Jontz, plaintiff had not engaged in any discovery with respect to her Privacy Act claim. Jontz' Mot. at 1. Since the motion for a protective order was filed, plaintiff has deposed Lt. Col. Glenn, and has submitted written discovery requests to both the DOD and Office of Personnel Management ("OPM ") requesting any information regarding employment applications contained in a system of records. Def.' s Settlement Statement at 2.

II. First Amendment"Reporter's Privilege"

The Federal Rules of Civil Procedure provide that "parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, " reflecting the "fundamental principle that... the public has a right to know every [person' s] evidence, " Fed. R. Civ. P. 26(b)(1); see Huitra v. Islamic Republic of Iran, 211 F. Supp. 2d 115, 117 (D.D.C. 2002). Under the First Amendment, reporters enjoy a qualified privilege against compelled disclosure of sources and information obtained through news gathering activities.*fn2 Clyburn v. News World Communications, Inc., 903 F.2d 29, 35 (D.C. Cir. 1990); Zerilli v. Smith, 656 F.2d 705, 711 (D.C. Cir. 1981) Huitra v. Islamic Republic of Iran, 211 F. Supp. 2d at 118; Blumenthal v. Drudge, 186 F.R.D. 236, 244 (D.D.C. 1999). While the D.C. Circuit has never ruled directly on the issue, other Circuits, as well as District Courts within this Circuit, have concluded that the qualified A reporter' s privilege " protects both confidential and non confidential information obtained by the reporter during the course of the reporter' s newsgathering efforts. See Hutira, 211 F. Supp. 2d at 121-122; NLRB v. Mortenson, 701 F. Supp. 244, 247 (D.D.C. 1988); see also Gonzales v. NBC, Inc., 194 F.3d 29, 33-36 (2d. Cir. 1999); United States v. LaRouche, 841 F.2d 1176, 1182 (1st Cir. 1988). One District Court has held that the privilege protects not only the sources of a reporter' s information, but also a reporter' s notes, diaries, and any other material generated in connection with the editorial process. See Maughan v. NL Indus., 524 F. Supp. 93, 95 (D.D.C. 1981).

Although the reporter bears the burden of demonstrating the applicability of the privilege, Hutira, 211 F. Supp. 2d at 120-121, "in the ordinary case the civil litigant' s interest in disclosure should yield to the journalist' s privilege. " Zerilli, 656 F.2d at 712."The privilege is not absolute, however, and may be abrogated upon sufficient showing by the party seeking the information." Huitra v. Islamic Republic of Iran, 211 F. Supp. 2d at 118. Once a court determines that the reporter's privilege is properly invoked, it must"look to the facts of the particular case, balancing'the public interest in protecting the reporter's sources against the private interest in compelling disclosure.'" Id. at 118-119. The following factors are to be considered when deciding whether to uphold the privilege:

1) whether the information sought"goes to the heart of" the case;

2) efforts made by the party seeking disclosure to obtain the information from an alternative source and the availability of the ...


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