The city has issued subpoenas to three reporters for The Seattle Times, demanding they identify confidential sources cited in stories about police misconduct.
City Attorney Thomas A. Carr said on Nov. 30 that the information would help the city defend itself from defamation claims brought by a fired officer.
But the attempt to get the information by subpoena runs directly counter to the state’s new reporter shield law, which explicitly prohibits subpoenas compelling reporters to turn over their notes or confidential sources.
The decision prompted a call from state Republicans, including gubernatorial candidate Dino Rossi, that Gov. Chris Gregoire fire Carr as head of the state’s Sunshine Committee, which is looking at ways to strengthen open-records laws. The governor’s spokesman, Lloyd Brown, said Gregoire was “troubled by the story.”
“We need some time to talk to Tom Carr,” Brown said. “What’s troubling about the situation is the appearance of the person who’s heading the Sunshine Committee challenging the … shield law.”
Carr argued that delivering the subpoenas ? even if a judge doesn’t force the Times to comply ? could help the city show a jury that it took all possible steps to prove that the officer was not defamed.
“I’m not saying we’d take this to the Supreme Court, and we certainly don’t want reporters to go to jail,” Carr said. “We’re going to defend (the articles) as true, but it would be nice if the Times would help us out on this.”
The newspaper on Nov. 29 asked Chief U.S. District Judge Robert Lasnik, who is presiding over the officer’s case, for a protective order stating that the reporters do not have to turn over their sources.
“We’re actually quite confident we’ll get that and that we’ll not have to reveal our sources,” Times Executive Editor David Boardman said on Nov. 30.
If the issuance of the subpoenas is “some sort of legal strategy,” he added, “I’m offended that the city attorney would try to use us and the First Amendment in that way.”
The subpoenas were issued Nov. 29 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 officer, John Powers, was fired by Police Chief Gil Kerlikowske following determinations that Powers had engaged in a pattern of misconduct, including using and trafficking in cocaine on-duty, jeopardizing a federal investigation by describing an undercover police car, misusing police equipment, leaving his precinct while on duty, and breaking into someone’s garage to recover expensive tires that had been stolen from his neighbor.
Powers sued a year ago, alleging wrongful termination and defamation. He alleged that city officials, some named and some identified only as John and Jane Does No. 1 through No. 5, had disseminated false information about him to the reporters. The newspaper is not named in the lawsuit, and the judge earlier rejected the city’s attempt to force it to be joined as a defendant.
Most of the statements the Times printed are backed up by written investigative records. So the best way for the city to defend itself against defamation claims is to show that its written record of Powers’ misdeeds is true.
Beyond that, the city itself knows which of its employees had knowledge of the investigation, so it should be able to determine on its own who might have provided the information to the newspaper.
Paul Olsen, the assistant city attorney handling the case, acknowledged on Nov. 30 that the city is still “sorting out who said what,” and had not exhausted all means of getting the information before resorting to the subpoenas. But he also noted that the deadline for producing discovery in the lawsuit is Dec. 9, meaning the city was running out of time.
The city could ask for the deadline to be delayed if it so desired.
Olsen also acknowledged that before issuing the subpoenas the city did not consider whether it would be able to defeat any claim by the newspaper that it does not have to reveal its sources.
In an interview with the Associated Press and in a news release on the afternoon of Nov. 30, Carr insisted that before resorting to subpoenas, his office tried to ask the Times to cooperate and help prove the truth of the statements it reported. He said he believed the newspaper refused to cooperate so that it could test the applicability of the state shield law in federal court.
However, Olsen and the Times said the first communication on the topic was a letter from the city attorney’s office to the newspaper on Nov. 7. While Olsen did write, “I would be interested in discussing with you the best way to establish the bounds of the reporters’ participation in the matter,” he also included the draft subpoenas and written questions asking the reporters to name sources, and he said he was going to serve the subpoenas within a few days.
“Tell us what you know now, or tell us in court,” is how Boardman interpreted the letter. He described as preposterous the notion that the Times was trying to get subpoenaed so it could test the shield law, and he said the newspaper stands behind everything it publishes.
On Nov. 8, a Times lawyer wrote to Olsen to say the newspaper would be resisting the subpoenas.
Carr’s news release also suggested that the Times’ lawyer stonewalled the city attorney’s office by not calling before filing the Nov. 29 motion for the protective order: “On Nov. 29, we specifically asked The Seattle Times’ attorney to discuss the matter before The Seattle Times filed papers in federal court. The attorney did not return our telephone call.”
Olsen told the AP on Nov. 30 that he and Times lawyer Bruce Johnson did leave messages for each other, but never connected.