Tripp v. Department of Defense

Citations: 284 F. Supp. 2d 50; 31 Media L. Rep. (BNA) 2505; 2003 U.S. Dist. LEXIS 17074; 2003 WL 22239253Docket: CIV.A. 01-157

Court: District Court, District of Columbia; September 30, 2003; Federal District Court

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Linda R. Tripp filed a lawsuit against the Department of Defense (DOD), claiming violations of the Privacy Act and the Administrative Procedures Act (APA) due to the unauthorized release of information regarding her job application to the George Marshall Center in Germany. The case, heard by the United States District Court for the District of Columbia, centers on whether Sandra Jontz, a reporter for the DOD's Stars and Stripes newspaper, can assert 'reporter's privilege' when responding to discovery requests about her article that disclosed Tripp's application details.

In October 2000, Tripp applied for a Deputy Director position at the Marshall Center and was later informed she was among the top candidates. She contends she did not authorize anyone to share her application information during a conversation with Marshall Center Director Robert Kennedy. On the day of her interview, she discovered an article by Jontz in Stars and Stripes that detailed her candidacy, citing unnamed sources as well as Kennedy. Tripp alleges that the article was broadly published in various formats of Stars and Stripes and that she was ultimately not selected for the position. 

Tripp's claims include that the DOD violated her Privacy Act rights by disclosing her information and failed to maintain necessary protocols for safeguarding such information. Additionally, she contends that the DOD did not comply with her January 6, 2000 request for a 'reverse FOIA' to prevent unauthorized disclosures related to her without her prior review.

On July 25, 2002, Tripp served a notice of deposition and document request to the Department of Defense (DOD), seeking Sandra Jontz's testimony and related documents concerning Linda Tripp. The DOD postponed the deposition multiple times, citing Jontz's unavailability and the need to decide on a protective order. On September 19, 2002, the DOD suggested an October 30, 2002 deposition date, allowing time for potential objections. Subsequently, the DOD claimed 'reporter’s privilege' regarding information about Jontz’s sources for a Stars and Stripes article. Jontz, not a party to the action, filed a motion for a protective order on October 22, 2002, asserting that the plaintiff should seek information from alternate sources before contacting her and requested withdrawal of the discovery request. Jontz claimed the DOD had offered an alternative deposition of Lt. Col. Michael Glenn. The plaintiff countered with a motion to compel Jontz's deposition, arguing the DOD could not invoke 'reporter’s privilege' due to Jontz allegedly violating the Privacy Act by accessing confidential personnel records. The plaintiff had not yet engaged in discovery related to the Privacy Act claim prior to seeking Jontz's deposition. Since the protective order motion was filed, the plaintiff deposed Lt. Col. Glenn and submitted additional discovery requests to the DOD and Office of Personnel Management regarding employment applications. The legal framework emphasizes that parties may discover any relevant matters unless privileged, and under the First Amendment, reporters have a qualified privilege against compelled disclosure of their sources and information obtained through news gathering.

The D.C. Circuit has not directly ruled on the applicability of the qualified 'reporter's privilege' regarding the protection of both confidential and non-confidential information obtained by reporters. Other Circuits and District Courts, however, have affirmed that this privilege encompasses various materials generated during newsgathering, including notes and diaries. The burden lies with the reporter to demonstrate the privilege's applicability, but generally, the journalist's interest in confidentiality outweighs the civil litigant's interest in disclosure. The privilege can be overridden if the requesting party provides sufficient justification. When evaluating claims of reporter's privilege, courts must balance public interest in protecting sources against private interests in disclosure, considering several factors such as the relevance of the information to the case, efforts to obtain it from alternative sources, the journalist's party status, and the confidentiality of the information. Courts must also recognize the significance of the First Amendment and a robust press.

A preliminary determination is required to assess whether Stars and Stripes qualifies as a publication entitled to reporter's privilege and whether Ms. Jontz qualifies as a journalist. The plaintiff contends that Stars and Stripes, being a government-controlled entity, does not qualify as a 'newspaper' and thus lacks First Amendment protections. In contrast, the Department of Defense argues that Stars and Stripes functions as a traditional newspaper and deserves full First Amendment protections. The Supreme Court has endorsed a broad interpretation of 'press', recognizing various forms of publication as vehicles for information and opinion. The D.C. Circuit has yet to provide clarity on whether Stars and Stripes falls under First Amendment protections or what criteria define such eligibility.

Courts generally classify Stars and Stripes as a newspaper within the media category, as evidenced by multiple case references. While the Plaintiff argues that employees of Stars and Stripes lack First Amendment protections due to the publication's ties to the American Forces Information Services (AFIS), Jontz contends that Stars and Stripes operates similarly to commercial newspapers and thus qualifies for these protections. Legislative history from the National Defense Authorization Act indicates Congress intended for Stars and Stripes to publish information free from DOD interference, provided it is balanced, accurate, and relevant to its readership. Furthermore, Congress has affirmed that articles in Stars and Stripes should receive full First Amendment protection, emphasizing the rights of military personnel. DOD directives clarify that Stars and Stripes serves as an unofficial compilation of news that aligns with First Amendment principles and does not represent the official stance of the DOD. Although Stars and Stripes is owned and operated by the DOD, the editorial decisions are not under the purview of the AFIS Director.

The Stars and Stripes is asserted to be both editorially and largely financially independent, serving as a critical source of uncensored military information for service members, as supported by a sworn affidavit from its Editorial Director. DOD Directive 5122.11 reinforces that its editorial policies align with high journalistic standards. Consequently, it is argued that Stars and Stripes and its employees deserve First Amendment protections, with the court concluding that it qualifies as a newspaper under First Amendment analysis.

Regarding Jontz's ability to invoke the reporter's privilege, it is contended that as a DOD employee, he may not qualify. However, precedent in the D.C. Circuit establishes that the privilege applies to all newsgathering activities, not limited to traditional journalists or major media outlets. Case law indicates that the First Amendment protections extend to various forms of publication, including newsletters. The court has noted that the determination of whether an individual qualifies as a journalist hinges on their intent during the information-gathering process. The intent must be to disseminate information to the public, which should be demonstrated through competent evidence. Prior experience as a journalist can support claims of intent, although none of the cited cases involved individuals associated with a government agency.

A District Court has established that prior experience as a professional journalist serves as compelling evidence of the intent to gather information for dissemination. Jontz's activities while preparing the Tripp article demonstrate newsgathering, as she conducted interviews and researched Tripp's employment and application to the Marshall Center, which are fundamental to investigative journalism. Jontz's actions align with traditional journalistic practices, and her article qualifies as a public writing intended to inform. Although Jontz did not explicitly claim an intent to disseminate information regarding Tripp's application, her employment as a journalist provides sufficient basis to invoke the 'reporter's privilege'. The plaintiff argues that Jontz violated the Privacy Act by accessing and distributing information related to Tripp through her notes, but this claim does not impact Jontz's right to assert the privilege in her newsgathering. 

To overcome the 'reporter's privilege', the party seeking discovery must demonstrate that the requested information is central to the case and that all reasonable alternative sources have been exhausted. The Court notes that, in this case, the plaintiff has not made adequate efforts to obtain the information from other sources, leading to the conclusion that the reporter's privilege should be upheld, preventing the compelled disclosure of Jontz's newsgathering information.

Several legal cases illustrate that, in circumstances where information is sought, parties are expected to pursue alternative sources before relying on disclosure from certain individuals. Notably, in cases like Zerilli and Hutira, courts have acknowledged that limited alternative sources exist, such as information directly from news articles or lists provided by parties. In Zerilli, the Justice Department identified employees knowledgeable about the alleged disclosure, while in Hutira, other individuals mentioned in the article were considered as potential sources.

In Maughan, plaintiffs were deemed sufficient sources for relevant information, while in Carey, the court ruled against upholding privilege when the reporter's guidance on sources was too vague, leaving the requesting party without a clear starting point. Despite acknowledging that obtaining information may be challenging, courts maintain that the burden lies with the party to seek information from other sources first.

The Department of Defense (DOD) contends that the deposition of Ms. Jontz is not the only way for the plaintiff to identify the source of the leaked information. They propose that the plaintiff could depose Lt. Col. Michael B. Glenn, who managed the application process for the relevant position, as he could provide insights into individuals with knowledge of the disclosed information and relevant documents. Additionally, DOD suggests that written discovery requests could be made to gather information from Lt. Col. Glenn.

The plaintiff argues that it is unreasonable to require her to conduct extensive discovery among numerous potential sources, especially when only Ms. Jontz and her anonymous sources are likely to possess the sought-after information. She points out that in the cases cited by DOD, the number of alternative sources was significantly limited compared to her situation and asserts that no reasonable alternative source exists for the information she seeks from Ms. Jontz. Evidence suggests Ms. Jontz was aware of the alleged improper disclosure prior to contacting the Marshall Center, further complicating the matter.

Ms. Jontz reported hearing that Linda Tripp applied for a position, arguing that Lt. Col. Glenn's deposition, limited to information from the Marshall Center, cannot substitute for her own testimony since it wouldn't reveal whom she consulted before contacting the Center. The plaintiff asserts that a 'Pentagon spokeswoman' mentioned in the article is unlikely to be addressed by a Marshall Center employee, making Glenn's deposition insufficient for the plaintiff’s claims. However, the plaintiff has failed to pursue other avenues for information before seeking Jontz's deposition, thus not meeting the exhaustion requirement established by relevant case law. The D.C. Circuit emphasizes that litigants must make reasonable efforts to gather information from alternative sources before compelling reporters to disclose their sources, referencing cases that suggest a substantial number of depositions (25 to 60) as a reasonable burden. The court noted that requiring disclosure of sources at the end of discovery allows for a proper context to assess the relevance of the sources to the case. Minimal discovery has been conducted by the plaintiff, who prematurely seeks Jontz's deposition despite the DOD identifying Glenn as a potential source for information regarding Tripp's application. The plaintiff has not indicated that obtaining Glenn's deposition was futile, nor have they explored other potential sources, such as employees from the DOD or Office of Personnel Management. Consequently, the plaintiff has not exhausted all reasonable alternatives concerning Jontz’s sources and cannot overcome her claim of 'reporter's privilege' at this stage of the litigation.

The Court has granted the motion for a protective order, allowing Ms. Sandra Jontz to invoke the reporter's privilege concerning her sources for the article in question. The plaintiff retains the right to seek reconsideration of this decision after additional discovery is completed. The ruling references the District of Columbia's 'Free Flow of Information Act of 1992,' which protects news media employees from being compelled to disclose sources unless the requesting party can demonstrate, by clear and convincing evidence, that the information is crucial to a significant legal issue, cannot be obtained through alternative means, and that there is an overriding public interest in disclosure. The excerpt notes the distinction between Armed Forces Newspapers and Civilian Enterprise Newspapers and mentions Stars and Stripes as a significant Armed Forces publication. It also discusses a precedent case, Zerilli, where the court upheld the reporter's privilege unless the plaintiffs could prove they had exhausted all alternative sources of information, emphasizing the importance of protecting journalistic sources.