Currently before the Court is the plaintiff's Motion to Compel Further Testimony from Michael Isikoff, Daniel Klaidman, Allan Lengel, Toni Locy, and James Stewart [D.E. # 157].*fn1 Also before the Court are several motions to quash subpoenas by various media companies: American Broadcasting Companies, Inc., WP Company LLC d/b/a The Washington Post, and Newsweek, Inc.'s Motion to Quash [D.E. # 152]; Motion by Non-Party CBS Broadcasting, Inc. to Quash Subpoena [D.E. #156]; Motion to Quash Subpoenas by Non-Parties The Associated Press and the Baltimore Sun Company [D.E. #159]; and Motion by Non-Party The New York Times Company to Quash Subpoena [D.E. # 162].*fn2 The Court having heard oral argument on the motion to compel, in addition to having reviewed the pleadings submitted in connection with the motion, it concludes that the plaintiff's motion to compel the testimony of the several reporters must be granted and that the media companies' motions to quash must be granted.
I. Relevant Factual Background
On March 30, 2007, this Court issued an Order indicating that at the plaintiff's discretion, he would be granted an additional period of discovery to attempt to obtain the identity of the yet to be identified source or sources at the Department of Justice ("DOJ") or the Federal Bureau of Investigation ("FBI") who the plaintiff contends provided information to news reporters concerning aspects of the criminal investigation of the multiple mailings of anthrax in the Fall of 2001 that focused on the plaintiff as the possible perpetrator. March 30, 2007 Order at 2. The plaintiff then filed a Praecipe Regarding Discovery indicating his desire to conduct additional discovery, and the Court issued an Order on April 20, 2007, allowing an additional period of sixty days for the plaintiff to pursue further discovery. Before requesting this additional discovery period, the plaintiff had sought extensive discovery from the agency defendants and from members of the media. Plaintiff's Memorandum of Points and Authorities in Support of Motion to Compel Further Testimony from Michael Isikoff, Daniel Klaidman, Allen Lengel, Toni Locy, and James Stewart ("Pl.'s Mem."). In particular the plaintiff deposed six non-parties, who, while working as reporters for various media entities, were the direct recipients of many of the agency defendants' alleged disclosures concerning Dr. Hatfill. Id. During those depositions, the reporters identified more than 100 separate disclosures about Dr. Hatfill that they claimed were directly from FBI or DOJ sources.
Id. at 3. However, the reporters declined to reveal the identity of their FBI or DOJ sources, or provide any other information about the sources that would aid the plaintiff in identifying them, on the grounds that such information is protected from disclosure by a "reporter's privilege" under the First Amendment of the United States Constitution and pursuant to federal common law. Id. at 2, 4. The motion to compel currently before the Court is yet another attempt by Dr. Hatfill to obtain the reporters' DOJ and FBI sources. As would be expected, the reporters oppose this motion. In addition to seeking further discovery from the reporters, Dr. Hatfill served subpoenas pursuant to Rules 30(b)(6) and 45 of the Federal Rules of Civil Procedure on the media companies that had published information, seemingly in reliance on the unnamed DOJ and FBI sources, seeking testimony and documents that would identify or tend to identify the sources of the leaks. Plaintiff's Consolidated Opposition to Media Companies' Motions to Quash ("Pl.'s Opp'n").
A. First Amendment Privilege
The District of Columbia Circuit in Lee v. DOJ, 413 F.3d 53 (D.C. Cir. 2005), reiterated that it recognized in Zerilli v. Smith, 656 F.2d 705 (D.C. Cir. 1981), in the First Amendment context, a qualified privilege in Privacy Act cases, 5 U.S.C. § 552a (2000), for non-party journalists "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. "[T]wo guidelines" were established by Zerilli "to determine when a plaintiff may compel a non-party journalist to testify to the identity of his confidential sources." Id. at 57. The question a court must first address when making this determination is whether "the information sought [goes] to the 'heart of the matter.'" Id. at 59 (quoting Zerilli, 656 F.2d at 713) (quoting Cary v. Hume, 492 F.2d 631, 636 (D.C. Cir. 1974). If it does not, disclosure may not be compelled. "Second, the litigant must exhaust 'every reasonable alternative source of information'" before a journalist may be compelled to disclose his or her source of information. Id. (quoting Zerilli, 656 F.2d at 713 (quoting Carey, 492 F.2d at 638)). The Court, however must keep in mind that this privilege is not absolute. Id. at 60. As the Lee Court stated:
The Supreme Court has noted in the context of privilege in grand jury cases that it "cannot seriously entertain the notion that the First Amendment protects a newsman's agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it." Branzburg [v. Hayes, 408 U.S. 665, 692 (1972)] (quoted in In re Grand Jury Subpoena, Judith Miller, 397 F.3d 964, 970 (D.C. Cir. 2005). The same principle applies here; the 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.
Id. However, this does not mean that the journalist is left "without protection." Id. In addition to "the qualified privilege described in Zerilli, the usual requirements of relevance, need, and limited burdens on the subpoenaed person still apply." Id. (citations omitted).
As an initial matter, non-party journalists Isikoff, Klaidman, and Lengel challenge whether the disclosures at issue can even be considered violations of the Privacy Act. Isikoff Opp'n at 9-10. They contend that "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." Id. at 10. Specifically, they posit that "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." Id. Similarly, non-party Stewart opines that "it is extremely unlikely that [Dr. Hatfill] could obtain testimony from them that would prove an intentional and willful disclosure of a record protected by the Privacy Act." Stewart Mem. at 35. Stewart further contends that "the statements in [his] broadcasts do not even suggest disclosure of information derived from records protected by the Privacy Act" because his "reports contain no personal information about Dr. Hatfill and no original disclosures of investigative details." Id. at 35-36. Moreover, because the information about Dr. Hatfill had been publicly disclosed long before his reports, Stewart argues that it is likely that the earlier disclosure removes the reports from the "purview of the Privacy Act in any event." Id. at 36.
The Privacy Act provides a private right of action against a government agency when records pertaining to an individual have been improperly disclosed by that agency. 5 U.S.C. § 552a; Lee 413 F.3d at 55. Specifically, 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). "When a court finds that an agency made such a disclosure 'in a manner which was intentional or willful,' the United States is liable for damages plus attorneys' fees and costs." Lee, 43 F.3d at 55 (citing 5 U.S.C. § 552a(g)(4).
[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). And, Isikoff, Klaidman, and Lengel urge this Court to conclude that the definition of record provided in the Privacy Act "cannot be stretched to include the contents of these reporters' articles." Isikoff Opp'n at 11. Furthermore, they contend 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." Id. at 12. Additionally, they surmise that "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 transaction, medical history, and criminal or employment history.'"*fn3 Id.(citation omitted). The Court cannot accept the narrow definition these journalists seek to give the term record as used in the Privacy Act.
This Court recently addressed what constitutes a record under the Privacy Act as related to investigative information in Scarborough v. Harvey, ___ F. Supp. 2d ___, ___, No. 05-1427, 2007 WL 1721962, at *1 (D.D.C. May 22, 2007) (RBW). There, the Army's Criminal Investigation Division ("CID") commenced an investigation into the alleged fraudulent issuance of individual surety bonds to the United States government. Id. The plaintiffs in Scarborough had brought an action under the Privacy Act alleging that the agency defendants' disclosure and dissemination of confidential and sensitive investigative information concerning them intentionally and willfully violated various provisions of the Act. Id. at *4. Similar to the reporters' arguments in this case, the defendants in Scarborough advanced a technical reading of the term "record," asserting that the plaintiffs' claims were not sustainable because the information disclosed was entrepreneurial in nature, as opposed to being personal information, and that the information disclosed was available to the public and therefore did not constitute records, as that term is defined under the Privacy Act. Id. at *5 (footnote and citations omitted). The Scarborough defendants therefore asked this Court "to accept a distinction between 'personal information' (information about an individual acting in a personal capacity) and 'entrepreneurial information' (information about an individual acting in an entrepreneurial capacity, including actions taken on behalf of a sole proprietorship), and argue[d] that only disclosure of information falling in[to] the former category is intended to be protected by the Privacy Act." Id. at *8. However, this Court noted that "this distinction is found nowhere within the text of the statute itself." Id. (citing 5 U.S.C. § 522a(a)) (footnote omitted). Rather, the Court pointed out that "[t]he Act defines 'record' in relatively broad fashion," id. (citing McCready v. Nicholson, 465 F.3d 1, 9 (D.C. Cir. 2006) (citing 5 U.S.C. § 552a(a)(4)), and reiterated that "[i]n order to qualify as a record, information must be 'about' an individual[,] . . . [and it] must contain the individual's name or other identifying particular[s]," id. (quoting Tobey v. NLRB, 40 F.3d 469, 471 (D.C. Cir. 1994)). Moreover, the Court noted that "[t]he District of Columbia Circuit has stated that, under the Privacy Act, an item is 'about an individual' if it 'contain[s] information that actually describes the person in some way.'" Id. (quoting McCready, 465 F.3d at 9). And, because the information disclosed contained the names of at least one of the plaintiffs, this Court concluded that its "sole inquiry" was to assess "whether the documents, and the information contained therein, are 'about' the plaintiffs." Id. at *8. In making this assessment, the Court found that the definition of record "is undeniably expansive, and there is nothing in the Privacy Act to indicate an intent to exclude certain classes of information, as long as they 'actually describe [an individual] in some way.'" Id. (quoting McCready, 465 F.3d at 9) (internal citations omitted). Each of the documents in Scarborough, the Court reasoned, "reference[d] the plaintiffs by name and divulge[d] 'information that actually describe[d] the [plaintiffs] in some way, thus meeting the requirements of §552a." Id. (citations omitted). The Court further ruled that "documents identifying the individual plaintiffs by name and describing [their] involvement in allegedly criminal or otherwise unsavory activity [was] 'about' the individual plaintiffs, and therefore not excluded from the Privacy Act's definition of records."' Id.
Here, the information disclosed is consistent with the definition of record as contained in the Privacy Act, as Dr. Hatfill references multiple instances where DOJ and FBI officials revealed investigative information about him to the reporters. Specifically, with respect to the use of bloodhounds to investigate Dr. Hatfill, Klaidman, of Newsweek, reported that "when the handlers approached the Frederick, Maryland apartment building of Dr. Steven J. Hatfill . . . [,] the dogs immediately became agitated, Newsweek has learned. The dogs went crazy says one law-enforcement source." Pl.'s Reply at 9 (citing Exhibit ("Ex.") B (M. Miller & D. Klaidman, The Hunt for the Anthrax Killer, Newsweek, Aug. 12, 2002). Another article written by Klaidman and Isikoff of Newsweek states:
Something else about Dr. Hatfill caught their eye. Agents surveilling his apartment watched him as he pitched loads of his belongings into a dumpster behind his apartment building -- getting rid of some of the evidence, some agent wondered. Though the FBI says Hatfill had been cooperative all along, the dogs and dumpster led ...