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Seattle drops demand that newspaper identify sources

By The Associated Press
12.06.07

SEATTLE — The city attorney's office has withdrawn subpoenas issued to three Seattle Times reporters asking them to identify confidential sources cited in stories about police misconduct, in exchange for a statement from the newspaper that it does not reveal such information.

Times Executive Editor David Boardman said yesterday the newspaper had no intention of giving up the sources, and that he was pleased that City Attorney Thomas A. Carr had dropped the matter.

In an interview with the Associated Press, Carr acknowledged yesterday that he did not know about the subpoenas before one of the lawyers on his staff, Paul Olsen, caused an uproar by issuing them last week.

Carr said he did not reveal that detail earlier because he generally tried to take the heat for decisions his office makes. Speaking last week with the AP, Olsen indicated he considered the subpoenas routine.

Carr called Olsen an excellent attorney and said he agreed with everything Olsen did, but noted, "We now have a policy that all newspaper subpoenas must be approved."

Many saw the subpoenas as a challenge to the state's new reporter-shield law, which expressly prohibits subpoenas compelling reporters to turn over their notes or confidential sources, and to federal precedent that reporters do not have to reveal such information unless all other means of obtaining it have been exhausted.

The city sought the sources to defend itself in federal court from defamation claims brought by a fired police officer. Last week, Olsen and Carr said they wanted to be able to show a jury that they had taken all possible steps to identify the people who had leaked information about the officer to the Times.

In a sworn stipulation filed in federal court yesterday, the city agreed to withdraw the subpoenas and said it had not intended to challenge the newspaper's ability to protect its sources, but only wanted to know if the reporters would voluntarily reveal the sources' identities. The Times wrote in the stipulation that its policy and practice is not to break promises of confidentiality.

The subpoenas were issued last week to reporters Mike Carter, Steve Miletich and Christine Willmsen, who reported in 2004 and 2005 about FBI and Seattle Police Department investigations into misconduct by officers who worked off-duty at clubs, bars and restaurants in the Belltown neighborhood.

One, John Powers, was fired after the police and FBI investigation found that he had engaged in a pattern of misconduct, including using and trafficking in cocaine on-duty. Powers sued a year ago, alleging wrongful termination and claiming that city officials had disseminated false information about him to the reporters.

On Nov. 7, Olsen, who is handling the city's defense of the lawsuit, sent a letter and draft subpoenas to the Times' lawyers, saying, "One way for the city to explore the reporters' potential involvement in the litigation is to seek their testimony regarding their sources. ... I would be interested in discussing with you the best way to establish the bounds of the reporters' participation in the matter."

Olsen went on to say that he intended to serve the subpoenas within a few days, but that he hoped to hear from the lawyers before then.

The next day, Times' lawyers wrote back, saying they would resist subpoenas.

The issuance of the subpoenas brought Carr widespread criticism from news organizations, open-government activists and even the governor's office. Carr was appointed by Gov. Chris Gregoire to head the state's "Sunshine Committee," which is examining ways to strengthen open records laws, and her spokesman said she found the subpoenas troubling.

Michele Earl-Hubbard, a Seattle attorney who specializes in open government cases, said the city could have gleaned whether the Times planned to invoke its privilege by sending a letter more to the point: "If we subpoena you, will you invoke your privilege?"

Reversing course was wise, Earl-Hubbard said. "Withdrawing something you are certain to lose in court is always a good idea," she said.


Previous
Subpoenas issued to 3 Seattle Times reporters
City attorney — also head of state's Sunshine Committee — says information would help city defend itself against fired police officer's defamation suit. 12.03.07

Related

Wash. state enacts sunshine, reporter shield laws

One measure mandates study of 300-plus exemptions to public-records law; other protects journalists from being jailed for refusing to reveal confidential sources. 04.30.07

Federal judge rejects subpoenas for reporters in bribery case
Defense contractor convicted of bribing ex-San Diego congressman sought to compel journalists to testify in order to determine source of grand jury leak. 12.04.07

Minn. police subpoena reporter's cell-phone records
First Amendment expert says government has effectively 'done an end run around the shield law by going to the telephone company rather than the journalist.' 12.12.07

State shield statutes & leading cases
By Bill Kenworthy State-by-state compilation of journalist-shield statutes, cases. 10.17.05

Track shield laws, subpoenas, confidentiality cases here

Shield laws


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