Wen Ho Lee, a scientist employed by the Department of Energy, was investigated on suspicion of espionage, a case that resulted in a plea agreement in which Lee pled guilty to one count of mishandling of classified computer files. Lee brought an action against the DOE, DOJ, and FBI, alleging the agencies improperly disclosed personal information about the investigation to the news media. Lee issued subpoenas to several journalists seeking testimony and documents relating to the leaks. The journalists moved to quash the subpoenas, which the district court denied. When the journalists had been deposed and refused to answer certain questions, the district court held them in contempt, which they appealed. The D.C. Circuit held that the journalists’ interest in protecting their sources was outweighed by Lee’s interest in compelling disclosure of the source of the leak, and thus the journalists’ failure to answer questions warranted a finding of civil contempt. The journalists sought rehearing en banc, which was denied.
Garland dissented from the denial of rehearing en banc. He started by noting that the Privacy Act is available not only to individuals; ostensibly, a former public official seeking to learn who leaked information that forced them to resign could use the Act to compel disclosure. Moreover, the “centrality” and “exhaustion” requirements of the Act would be satisfied in most cases. “[I]f the reporter’s privilege is limited to those requirements, it is effectively no privilege at all. Plaintiffs wielding Privacy Act suits will routinely succeed in putting reporters who receive whistleblower leaks to the choice of testifying or going to jail.” Garland cited Zerelli v. Smith, 656 F.2d 705 (D.C. Cir. 1981) for the proposition that the privilege should prevail in all but the most exceptional cases; the preferred position of the First Amendment and the importance of a vigorous press must be kept in mind. In determining claims under the Privacy Act, Garland would have weighed the public interest in protecting the reporter’s sources against the private interest in compelling disclosure.