Privacy Act Litigation and the Journalist Privilege
A person, let’s call him John Doe, sees a damaging news report about himself, and suspects it is based on a federal official’s leak of information from a dossier on him compiled by a government agency. Doe brings a Privacy Act case against the relevant agency. Can Doe subpoena the journalist or news organization that published the story to compel their identification of their confidential sources for the information believed to originate in a government file? The D.C. Circuit recently addressed that question in Chen v. FBI, Dkt. No. 24-5050 (D.C. Cir. Sept. 30, 2025), accessible here, reaffirming, and modestly extending, D.C. Circuit caselaw. This post will discuss the D.C. Circuit’s opinion, and then consider some broader issues related to the interaction of the Privacy Act and the journalist’s privilege ─ most particularly potential ways to relieve some of the burdens Privacy Act plaintiffs face.
I. The Constitutionally Mandated Journalists Privilege
In Branzburg v. Hayes, 408 U.S. 665 (1972), the U.S. Supreme Court nominally held that the First Amendment does not confer upon journalists a privilege to refuse to testify before grand juries. The Court split 5-4, with a critical concurring opinion by Justice Powell. He explained that in his view Justice White’s opinion for the Court did not preclude recognition of a qualified First Amendment based journalists’ privileged, asserting:
[As the opinion for the Court suggests] no harassment of newsmen will be tolerated. If a newsman . . . is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the court on a motion to quash . . . The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. . . In short, the courts will be available to newsmen under circumstances where legitimate First Amendment interests require protection.
Id. at 909-710 (Powell, J. concurring)(emphasis added). Journalists’ apparent loss in Branzburg v. Hayes turned out to be something of a victory, with most Court of Appeals recognizing a qualified First-Amendment-based journalist privilege.[1] However, the federal courts of appeal have held that the privilege can be overcome by “showing that the [journalist’s] information is highly material and relevant, necessary or critical to the maintenance of the claim, and not obtainable from other available sources.” E.g., McGraw–Hill, Inc. v. Arizona (In re Petroleum Prods. Antitrust Litig.), 680 F.2d 5 (2d Cir.1982); Zerilli v. Smith, 656 F.2d 705 (D.C.Cir.1981). The D.C. Circuit has distilled this test into two elements, believing that the inquiry into the necessity of the information subsumes the question of whether the information is highly material and relevant.
The D.C. Circuit applied its centrality/exhaustion test in Lee v. Department of Justice, 413 F.3d 53 (2005), cert. denied, 547 U.S. 1187 (2006), which like Zerilli, involved a Privacy Act plaintiff.[2] In Lee, the full D.C. Circuit denied rehearing en banc, but Judges Rogers, Tatel, and Garland each authored dissentals urging full court reconsideration of the panel’s decision.[3] Both Garland and Tatel noted that even though the centrality/exhaustion test sufficiently protected journalists’ First Amendment interests with respect to most types of civil litigation in which a journalist might possess relevant information derived from a confidential source, it was inadequate in Privacy Act cases. In most Privacy Act cases, they explained, the identity of a leaker is itself “the heart of the matter.” Lee v. Department of Justice, 428 F.3d 299,301-302 (2005)(Tatel, J. dissenting from denial of rehearing en banc). Only “an unexpected confession by the leaker” would avoid the prospect of breaching the First-Amendment-based journalists’ privilege in relation to a plaintiff’s pursuit of a Privacy Act claim. Id. (Garland, J. dissenting from denial of rehearing en banc).
II. Chen v. FBI
A. The Controversy and Proceedings Below
Born in China, plaintiff Yanping Chen came to the United States in 1987 to study at George Washington University. She became a lawful permanent resident in 1993 and a citizen in 2001. In 1998, Chen founded the University of Management and Technology (“UMT”) in Arlington, Virginia. The School participated in the Department of Defense’s (“DoD”) Tuition Assistance Program” which subsidized servicemembers’ tuition at the School.
In 2010, the FBI began investigating the veracity of Chen’s statements on various immigration forms, suspecting that Chen had concealed her prior work for the Chinese military. In 2016, after a lengthy investigation and apparently some dispute between the FBI and Government prosecutors over whether prosecution was warranted, prosecutors in the Eastern District of Virginia declined to file charges against Chen.
Unfortunately, that did not end Chen’s troubles. In 2017, Fox News revealed the allegations regarding Chen’s connections with the Chinese military.[4] Catherine Herridge was one of Fox News’ reporters on the story. Fox News published an FBI form memorializing an agent’s interview with Chen’s daughter, personal photographs seized from Chen’s home during an FBI search, as well as information from Chen’s immigration and naturalization papers. Fox News cited anonymous sources describing a conflict between the FBI and prosecutors regarding whether to file charges against Chen. In addition, Fox News noted an anonymous FBI agent’s concern about UMT’s continued participation in DoD’s Tuition Assistance Program. Unsurprisingly, in 2018 DoD terminated UMT’s participation in that program. DoD’s action and the negative publicity from the Fox News reporting precipitated a sharp decline in UMT’s enrollment and reputation.
Chen brought a suit under the Privacy Act, The Privacy Act of 1974, Pub. L. 93-579, 88 Stat. 1896 (codified as amended at 5 U.S.C. § 552a), to recover damages for the disclosure of private information in various files maintained on her by the Government.[5] The Privacy Act prohibits agencies from publicly disclosing certain records regarding individuals without prior consent. 5 U.S.C. § 552a(a)(4), (b). An individual harmed by a Privacy Act violation may bring a civil suit against the offending agency, id. § 552a(g)(1), (5), to recover “actual damages,” subject to a statutory floor of $1,000, for any “intentional or willful” disclosures. Id. § 552a(g)(4)(A). Prevailing plaintiffs may also obtain “the costs of the action together with reasonable attorney fees.” Id. § 552a(g)(4)(B).[6]
Chen engaged in extensive discovery to identify Fox News’ source for the information leaked from her government files. In addition to submitting various document requests, interrogatories, and requests for admission, Chen’s attorney took eighteen depositions of current and former government employees. Chen’s lawyers also issued over a dozen third-party subpoenas, and obtained declarations from 22 government officials and employees connected to the FBI investigation. Through those efforts, Chen developed a theory that the leaked material came from an internal FBI PowerPoint presentation created by the lead FBI agent on Chen’s case. She surmised that one of the presentation’s recipients had leaked its contents to Herridge. But her theory was not sufficient (at least in her view), so ultimately her indominable efforts at discovery from the Government had proven unsuccessful. Chen v. FBI, 687 F.Supp.3d 115, 118 (D.D.C. 2023).
Consequently, Chen sought to subpoena and depose Fox News and Catherine Herridge.[7] Both moved to quash the subpoenas, but the trial judge found that Chen had met the D.C. Circuit’s centrality/exhaustion test for defeating an assertion of the First-Amendment journalist’s privilege. Id. at 124-28; see, Chen v. FBI, supra, slip op. at 5. Chen was allowed to depose Herridge, possibly to be followed by a deposition of Fox News should the Herridge deposition prove insufficient. Herridge refused to identify her confidential source, even declining to provide information regarding when and how she received the leaked items. The Judge held Herridge in civil contempt.
B. D.C. Circuit Opinion
Herridge raised several arguments on her appeal of the judgment of contempt. First, she argued that Chen had failed to satisfy the “centrality” requirement due to the frivolous nature of her claim. Second, she asserted, the centrality/exhaustion test was inconsistent with the case-by-case balancing approach the D.C. Circuit mandated with regard to breaching the journalist’s privilege. Third, she argued that Chen suit was too unimportant to warrant breaching the journalists’ privilege. Fourth, she urged the Court to use its authority under the Federal Rules of Evidence, Fed R. Evid. 501, to recognize a journalist privilege that extended beyond the scope of the First-Amendment-based journalist privilege.
As to the first, the Court noted that the “centrality” inquiry can encompasses an assessment of the underlying Privacy Act claims’ frivolousness.[8] But it quickly dismissed Herridge’s argument that Chen’s claim was frivolous. Herridge claimed that Chen’s claim was “frivolous” even though she did not deny that there had been an actionable Privacy Act breach, given that there almost certainly was one. Instead Herridge pronounced the claim frivolous because (1) “most” of Chen’s alleged damages were caused by DoD’s independent decision to cut off funds to UMT rather than the disclosure to the public of information from Chen’s file, and (2) “almost all” of Herridge’s reporting was based upon sources other than government files protected by the Privacy Act.
The panel noted that some of Chen’s alleged damages had been sustained before DoD’s funding cut-off.[9] Moreover, even if “almost all” of Herridge’s reporting came from non-government sources, Chen had plausibly alleged that at least some derived from Privacy Act violations—such as the disclosure of photographs seized from Chen’s home during the FBI search. The panel explained that even if Herridge were correct in her assertion that Chen would at best establish she was entitled to only a small amount of damages, the potentially small size of any damages award would not make the case “frivolous.”
With respect to Herridge’s more general argument that the the case was simply not that important in relation to “the social importance of the news story,” the panel refused to engage in the sort of free-form balancing in the name of determining the “centrality” of the information a reporter refuses to disclose. In the panel’s view, that approach was foreclosed by Lee.
Nor was the straightforward application of the centrality/exhaustion test inconsistent with D.C. Circuit precedent. In Zerilli, upholding the subpoena to a journalist in a Privacy Act case, the Court had indeed asserted that “courts should look to the facts of each case, weighing the public interest in protecting the reporter’s sources against the private interest in compelling disclosure.”[10] However, that general observation, used by the Zerilli Court to determine whether any First-Amendment-based journalist privilege existed, did not require case-by-case balancing. Rather, the Zerilli Court had gone on to established “more precise guidelines … to determine how the balance should be struck” ─ setting out the exhaustion/centrality test.[11] In short, the Zerilli Court had engaged in “definitional” or “categorical” balancing, rather than prescribing ad hoc case-by-case balancing.[12]
The Court then refused to recognize a reporter’s privilege under Rule 501. Having concluded that” the First Amendment itself did not entitle Herridge to disobey discovery obligations imposed on every other citizen in the circumstances of this case,” the panel saw “little reason to create that entitlement as a matter of judge-made common law.” In doing so, the panel noted that state shield laws “var[y] widely in [their] scope . . ., both in the abstract and on the question whether case by-case interest balancing is appropriate.” Though the Court did not mention it, the media has been lobbying for a federal reporter’s shield law for years, without success.[13]
III. Observations
The panel’s decision seems clearly correct and faithful to Zerilli and Lee. However, the Chen litigation does prompt some more general observations.
A. The Burden of Exhausting Potential Other Sources of Information
One of the most striking aspects of Chen litigation saga is the costly and time-consuming process involved in exhausting potential alternative sources of information. Indeed, the D.C. Circuit has said that as many as 60 depositions could be required to satisfy the exhaustion prong of the centrality/exhaustion test.[14] Few plaintiffs are likely to have the fortitude, the financial resources, and prospect of a sufficiently sizable recovery to bear such expenses over years. Granted, attorney’s fees and litigation costs are available to successful plaintiffs, but such a recovery comes well after the initial expenditure of resources for litigation expenses. Perhaps the option of litigation financing and the potential for representation on a contingency fee basis make engaging in such costly litigation manageable. But even such options may be impractical for plaintiffs with small value cases.
Perhaps the system works acceptably, despite the financial disincentive to sue over a Privacy Act breach that caused only a modest tangible financial harm.[15] But perhaps the process might be fairer and less onerous if either the burden of production were shifted to the Government to prove that the information did not come from a leak, or the plaintiff were able to rely on a presumption that damaging information was improperly disclosed from government files. In some situations, the plaintiff may well be able to prove by a preponderance of the evidence, or even by clear and convincing evidence, that the information disclosed to the public had its origin in an improper release of information from plaintiff’s file compiled by a government agency. Indeed, that seems to be true in Chen’s case (even before the extensive discovery in which she engaged).
In those situations, if no contrary evidence has been offered, the inference that the agency disclosed the information, and that it did so intentionally or willfully, might be a sound evidentiary inference. The information was probably leaked from the plaintiff’s personal files, and given the unacknowledged nature of the leak and the leaked material’s use in such a damaging manner, the release was probably intentional or willful. Thus, at a minimum, the courts should allow a plaintiff to rely on such a presumption in making out a prima facie case, without requiring the identification of the specific leaker. Such a presumption would at least allow plaintiff to surmount the hurdles of summary judgment and directed verdict motions. And given the increased probability that plaintiff will prevail courtesy of such a presumption, defendant agencies may be encouraged to investigate for themselves if, and by what means, their records on the plaintiff were breached. As discussed below, any government efforts on this score will likely prove more fruitful and perhaps less expensive than plaintiffs’ efforts to discover the breach.
But courts could go further and shift the burden of production to the defendant agency once the plaintiff has established its prima facie case with the assistance of the above-referenced presumption. This would mean that the agency would be liable unless it proffered an affirmative case that the information came from some source other than its files on the plaintiff, or that the information was released due to an innocent mistake. Such a shifting of the burden of production might provide important incentives for government agencies in two ways.
First, forcing the Government to bear the burden of production will encourage agencies to engage in substantial efforts to identify the employee or employees responsible for the Privacy Act breach. The agency whose file has been breached will ordinarily be in a better position than a private citizen to ferret out the leaker. The agency is more familiar with its own records systems and any restrictions on access to those systems. Moreover, as the employer of those in charge of the records and those with access to it, the agency has means to encourage cooperation and truthful disclosures that private individuals lack. It has more flexibility in questioning its employees; it can question individuals on several occasions as its investigation develops rather than being limited to one deposition. And it also has the power to threaten, or to impose, employment consequences upon employees who may have unlawfully disclosed Privacy-Act-protected data, who failed to take adequate steps to protect its security, or who simply fail to cooperate with investigators.
Second, the greater prospect of Privacy Act liability might well encourage agencies to create or modify mechanisms for monitoring access to personal filed held by the Government. The government could perhaps more easily show that it has exhausted other means that would allow it to carry its burden that it was not the source of the leak.
In any event, with such a shift in the burden of production, Privacy Act plaintiffs would not have to be put through significant financial burdens before the case is concluded. Such financial burdens may well work as a disincentive to bringing suits to vindicate their Privacy Act rights. The journalist’s privilege would remain as robust as it is currently; however, the Government, rather than the the person whose file was likely breached, would have the burden of exhausting potential sources of information before subpoenaing journalists. (Indeed, perhaps the journalist’s privilege may more likely be upheld. Courts considering subpoenas addressed to journalists may view an agency seeking to avoid liability to a Privacy Act plaintiff for a damaging news story less sympathetically than a Privacy Act plaintiff seeking to recover financial losses from what appears to be a Privacy Act breach.)
It is possible, of course, that diligent and well-financed plaintiffs will nevertheless wish to conduct their own discovery, either in an attempt to affirmatively prove their case or due to fears that the Government will be lax in seeking to determine the source of the leak. In such circumstances, it is not clear how much the shift in the burden of production will change the current state of affairs. Moreover, under a regime in which the Government bears a burden, both plaintiffs and the agency defendants might compete in seeking the same information, ultimately resulting in both seeking to subpoena reporters and news organizations. It is not clear, however, that such a situation is problematic.
The approach of shifting the burden of production after some initial showing by the plaintiff is not unprecedented. Such a regime is applicable in the employment discrimination context. See, Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254–55, 258 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
The tort doctrine of res ipsa loquitur has a similar rationale (granted the doctrine focuses on negligent, rather than intentional or willful, conduct). If a plaintiff proves that an injury-causing event would not ordinarily occur in the absence of negligence and that the defendant has some level of control over the injury-causing “instrumentality,” plaintiff is entitled to an inference that the defendant beached its duty of care, i.e., was negligent.[16]
In some states, res ipsa loquitur serves to shift burden of production to defendants to prove that the injury-producing event was not caused by their negligence.[17] Indeed, one admittedly controversial case resembles the government leak scenario, namely Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687 (1944); see, RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL & EMOTIONAL HARM §17, comm. f. There plaintiff suffered a neck injury that was very likely caused by negligence, but a number of medical personnel were potentially responsible, and plaintiff could not determine which one or more members of that group had acted negligently. The California Supreme Court shifted the burden of production to the defendants to explain how plaintiff’s neck injury occurred.
B. What if Congress Finally Enacts a Robust Reporter’s Shield Law?
As mentioned earlier, there have been efforts to enact a robust federal shield law for a number of years, the most recent version of proposed shield legislation being the Protect Reporters from Exploitative State Spying Act (“the PRESS Act”).[18] Indeed, that PRESS Act passed the House on January 18, 2024. H.R. 4250, 118th Cong. 2d. Sess. (engrossed). (The Senate failed to act on the measure.)[19] The PRESS Act seems to be focused on Government efforts to determine the source of leaks that Executive Branch officials consider harmful to their endeavors;[20] there appears to be little focus on subpoenas to journalists and news organizations in the context of Privacy Act suits. See, H.R. Rep. 118–299 118th Cong., 1st Sess.,[21] For example the House Report on H.R.4250, which passed the House of Representatives on voice vote, did not even reference the Privacy Act litigation.
The PRESS Act provides a virtually absolute reporters’ privilege except in a few circumstances. The Act precludes journalists from being required to disclose “any information identifying a source who provided information as part of engaging in journalism,” or “any records, contents of a communication, documents, or information that a covered journalist obtained or created as part of engaging in journalism.” H.R.4250, §2(8). The privilege may be defeated upon a finding either that “disclosure of the protected information is necessary to prevent, or to identify any perpetrator of, an act of terrorism,” or that “disclosure of the protected information is necessary to prevent a threat of imminent violence, significant bodily harm, or death.” Id., §3. The prohibition does not apply to defamation litigation. Id., §6(1).[22] It also does not apply to any investigation of a journalist or news organization “suspected of committing a crime,” or to any investigation in which a journalist or news organization “is a witness to a crime unrelated to journalism,” or “suspected of being an agent for a foreign power.” Id., §6(2)(A)-(C). In addition, it does not apply to certain investigations involving terrorists. Id., §6(2)(D)-(F). None of these qualifications or limitations on the scope of the privilege would be applicable in the typical Privacy Act litigation.
If a similarly robust shield law is ultimately enacted, the locus of the burden of production in Privacy Act cases will become even more important. Journalist could assert an absolute privilege to refuse to identify a confidential source in Privacy Act litigation, whether the subpoena comes from the private plaintiff or the Government. Thus, the definitive information regarding the identity of any person that breached the Privacy Act and leaked plaintiffs records would be unavailable to both parties. In such a situation, the locus of the burden of production may prove dispositive. The party that must bear the burden of production, whether the Privacy Act plaintiff or the Government, will have difficulty shouldering it. And if some sort of res ipsa loquitor like inference is not available to Privacy Act plaintiffs to survive a motion for summary judgment or a directed verdict, they will not be able to press their cases.
In such circumstances, the Government should have to bear the cost of the unavailability of the evidence. It is likely the files maintained by the Government, under a legal obligation to keep them private, have been released for dissemination to the public in a willful or intentional manner. And it will be the Government, by virtue of a federal statute like the PRESS Act, that would have made the dispositive testimony unavailable, albeit for laudable and substantial reasons. Ultimately, without the prospect of securing journalists’ testimony, Privacy Act litigation will become even more needlessly expensive than it is already and private citizens’ ability to vindicate their Privacy Act rights will be frustrated all the more.
One final analogy suggests that Congress should perhaps include some form of exception for Privacy Act cases, similar to the exception for defamation cases, in any federal shield law.[23] Of course, Privacy Act litigation differs from defamation litigation, because in the latter case the journalist or media entity is a party to the suit, and has allegedly engaged in a wrongful act. The journalist or media entity is neither a defendant nor an alleged wrongdoer in a Privacy Act case. Though, ironically, journalists’ concerns regarding potential defamation liability, or simply getting the story right, may lead them to demand from leakers document contained in government files to which they have access that back up their assertions.[24]
But in another important respect, Privacy Act litigation mimics defamation litigation brought by public officials and public figures, in that both require proof that the defendant acted intentionally, willfully, or with a similar level of culpability. In the defamation context plaintiff must show “actual malice,” namely that the information was published with knowledge of its falsity or with recklessness disregard as to its truth or falsity. New York Times v. Sullivan, 376 U.S. 254, 279-280 (1964). In the Privacy Act context, the plaintiff has the burden of showing that the agency acted intentionally or willfully. See, Mulhern v. Gates, 525 F. Supp. 2d 174, 183 (D.D.C. 2007).[25]
In the defamation context, courts have explained that the need to show “actual malice,” provides a particularly compelling justification for requiring disclosure of a journalist’s confidential sources.[26] In Herbert v. Lando, 441 U.S. 153 (1979), the U.S. Supreme Court refused to recognize a privilege protecting journalists from having to testify or provide documentary evidence regarding the media entity’s editorial process for the story at issue. In addition to noting in general that “[e]videntiary privileges in litigation are not favored,” id. at 174, Justice White observed that it would be inappropriate to create an impenetrable barrier to the necessary proof required to meet the New York Times standard demanded of a public figure. Id. at 170. Similarly, in Zerilli v. Smith, the D.C. Circuit observed: “Proof of actual malice will frequently depend on knowing the identity of the newspaper’s informant, . . . Protecting the identity of the source would effectively prevent recovery in many [public figure] libel cases.” 656 F.2d at 714.
Despite the closeness of the analogy, some government officials might use a Privacy Act suit as a justification for identifying the source of a leak that exposes mistakes, abuse, corruption or other matters that will tarnish the agency. Thus, the exception to the shield law for Privacy Act claims will presumably need to be tailored to diminish the likelihood that such a gambit would succeed.
IV. CONCLUSION
In all likelihood, the trends in the application of the First-Amendment-based journalist privilege in the Privacy Act context will likely continue on along the lines that it has so far. However, one of the two courses suggested above might reduce some of the burdens on plaintiffs in vindicating the rights conferred upon them by the Privacy Act. Plaintiffs would be benefitted by permitting an inference allowing them to establish a prima facie case without identifying the specific government official responsible for the unlawful disclosure of their information. They would benefit even more from shifting the burden of production to the Government, upon some preliminary showing that material disseminated to the public by journalists came from public files.
[1] 2 RODNEY A. SMOLLA, THE LAW OF DEFAMATION §12:58 (2d ed. 2025)(available in westlaw); Anthony L. Fargo, The Journalist’s Privilege For Nonconfidential Information In States Without Shield Laws, 7 COMM. L. & POL’Y 241, 252 & n.74 (2002). Most states have enacted shield laws that provide journalists broader protections that the First Amendment. For a compendium of such laws, see Reporters Committee for Freedom of the Press, Reporter’s Privilege Compendium.
[2] Dr. Wen Ho Lee was employed by Department of Energy (“DOE”) as a scientist for almost 20 years, between 1978 and 1999. During Lee’s last three years at DOE, the Department and the Federal Bureau of Investigation (“FBI”) investigated him for spying on behalf of the People’s Republic of China. Though the government indicted Lee on 59 counts of mishandling of classified computer files, Lee ultimately pled guilty to just one count. Lee had been held under demanding conditions of pre-trial detention before the plea agreement, for which both the federal Judge overseeing the case and President Clinton expressed remorse. Statement by Judge in Los Alamos Case, With Apology for Abuse of Power, N.Y. TIMES (Sept. 14, 2000); William J. Clinton, Remarks on the Patients’ Bill of Rights and an Exchange With Reporters Online, accessible at, Gerhard Peters and John T. Woolley, The American Presidency Project.
Lee subsequently brought a Privacy Act suit, alleging that DOE and FBI officials leaked information from his personnel file to tarnish his image. The leaked information included his wife’s employment history, their joint financial transactions, details of their trips to Hong Kong and China, and specifics of the investigation, including Lee’s interrogation, and purported results of polygraph tests. Lee v. Department of Justice, 413 F.3d 53, 55-56 (2005), cert. denied, 547 U.S. 1187 (2006).
[3] Lee v. Department of Justice, 428 F.3d 299, 300-301 (2005)(Rogers, J., dissenting from denial of rehearing en banc); id at 301-302 (Tatel, J., dissenting from denial of reheaing en banc); id. at 302-303 (Garland, J., dissenting from denial of rehearing en banc).
[4] Pamela K. Browne , Cyd Upson , Catherine Herridge, Fox News Investigation: DoD-Funded School at Center of Federal Probes Over Suspected Chinese Military Ties, FOX NEWS (February 24, 2017). The article began with this sensational introduction: “Based just four miles from the Pentagon in northern Virginia is an innocuous-sounding online school for ‘management and technology’ – which a Fox News investigation reveals has been at the center of multiple federal probes about its leadership’s alleged ties to the Chinese military and whether thousands of records from U.S. service members were compromised.” For a different perspective on the case, see Stuart J. Sia, The Red-Baiting of Dr. Chen and the Dangerous Target It Puts on All Asian Americans (Aug. 7, 2024)..
[5] The defendant agencies included the FBI, DoD, and two other federal agencies. Chen v. FBI, 687 F.Supp.3d 115, 118 (D.D.C. 2023).
[6] Ironically, sometimes Privacy Act breaches of the may occur result from faulty agency production of documents in response to Freedom of Information Act (“FOIA”) requests. See, e.g., Human Rights Defense Center v. U.S. Park Police, 126 F.4th 708 (D.C. Cir. Jan. 24, 2025)(refusing to allow agency to claw back portions of records it erroneously provided in response to a FOIA request that had implications for employees’ privacy).
Some of these errors in responses to FOIA request may be less than innocent. The Postal Service released Democratic congressional candidate Abagail Spanburger’s Postal Inspection Service file in 2018 (including, for example, her social security number), in response to a FOIA request by her Republican opponent. Laura Vozzella, Ex-CIA Officer’s Full Personnel File Released in ‘Human Error,’ Postal Service Admits, WASH. POST (Aug. 30, 2018); Michael Tackett, C.I.A. Officer-Turned-Candidate Says PAC Obtained Her Security Application, N.Y. TIMES (Aug. 28, 2018); Michael Tackett, Postal Service Improperly Divulged Spanberger’s Sensitive National Security File, and Asks for It Back, N.Y. TIMES (Aug. 30, 2018). Similarly, the military records of Mickie Sherrill, Democratic candidate for Governor of New Jersey, were released (with her social security number unredacted) pursuant to a FOIA requester affiliated with opposing candidate Jack Cittarelli’s campaign. Tracey Tully, Release of Democrat’s Naval Record Scrambles a Tight Governor’s Race, N.Y. TIMES (Sept. 30, 2025); Ariana Baio, Investigation Launched Into How Republican New Jersey Governor Hopeful Got Democratic Opponent’s Military Records, THE INDEPENDENT (Oct. 1, 2025). Both “errors” seem suspicious.
[7] Up to that point, the Court had already been called upon the issue opinions on several issues related to the litigation: Chen v. FBI, 435 F. Supp. 3d 189 (D.D.C. 2020); Chen v. FBI, Dkt. No. 20-mc-107 (CRC), 2020 WL 7668880 (D.D.C. Dec. 24, 2020); Chen v. FBI, Dkt. No. 20-mc-107 (CRC), 2021 WL 6125379 (D.D.C. Nov. 23, 2021); Chen v. FBI, Dkt. No. 22-mc-0074 (CRC), 2022 WL 17851618 (D.D.C. Oct. 18, 2022). Chen v. FBI, supra, 687 F.Supp.3d at 117-118.
[8] Chen v. FBI, supra, slip op. at 8 (“if a claim would fail regardless of what the requested discovery might reveal, there is no good reason for deeming the discovery to be centrally important, much less for abrogating the privilege”).
[9] Though it did not so note, presumably even some of the damage to Chen’s business after DoD’s removal of the school from the program resulted from the damaging publicity rather than the DoD’s decision to cut off funding. Indeed, DoD’s own decision might have been influenced by the public nature of the leaks regarding Chen. And, of course, the Privacy Act can be breached by unauthorized sharing of information with another federal agency.
[10] This is true to Justice Powell’s concurrence in Branzburg v. Hayes.
[11] The test was first laid out, albeit in a very rudimentary form, in a defamation case, Carey v. Hume, 492 F.2d 631, 636-38 (D.C.Cir.), cert. dismissed, 417 U.S. 938, (1974).
[12] Norman T. Deutsch, Professor Nimmer Meets Professor Schauer (and Others): An Analysis of “Definitional Balancing” as a Methodology for Determining the “Visible Boundaries of the First Amendment,” 39 AKRON LAW REVIEW 483, 484-85 (2006).
[13] Jim Magill, Congress May Soon Pass Federal Shield Law. It’s Been A Long Time Coming, QUILL (March 14, 2024) ; Kathleen Ann Ruane, Journalists’ Privilege: Overview of the Law and Legislation in Recent Congresses, CONG. RESEARCH SERVICE (Jan. 19, 2011), accessible here; Reporters Committee on the Freedom of the Press, A Short History Of Attempts To Pass A Federal Shield Law (up to 2004).
[14] Zerilli v. Smith, supra, 656 F.2d at 714 & n.50.
[15] The Privacy Act is particularly critical given the extensive private information held in files compiled on individuals by the federal government and the media’s Free Speech and Free Pless Clause protections for publishing private information improperly provided to it by a government official, see, Florida Star v. B.J.F., 491 U.S. 524, 534-36 (1989)(police report on plaintiff’s rape mistakenly provided to journalists).
[16] RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL & EMOTIONAL HARM §17 (“The factfinder may infer that the defendant has been negligent when the accident causing the plaintiff’s harm is a type of accident that ordinarily happens as a result of the negligence of a class of actors of which the defendant is the relevant member.”). Traditionally, res ipsa loquitur required plaintiff to show that the defendant possessed exclusive control over the injury-causing instrumentality. The courts have wholly or partially abandoned the “exclusive control” requirement. Id. at comm b.
In part, the rationale for res ipsa loquitur is the soundness of the inference from negligence; in part it can also be attributed to the fact that the defendant will usually have better access to the critical information in such circumstances. Id. at comm i.
[17] Id. at comm. j (“[i]n at least a few jurisdictions, res ipsa loquitur creates a rebuttable presumption, thereby requiring the defendant to come forward with some exculpatory evidence or suffer a judgment as a matter of law”); see generally, DAN B. DOBBS, THE LAW OF TORTS §156 (2000) (discussing various procedural effects of establishing res ipsa loqutor).
[18] Protect Reporters from Exploitative State Spying Act (“the PRESS Act”), S. 2074, 118th Cong.; The PRESS Act, H.R.4250 — 118th Cong. (passed in the House).
[19] A shield law bill was also passed by the House in 2007, only to die due to Senate inaction. Reporters Committee for Freedom of the Press, House Passes Federal Shield Law (Oct. 16, 2007); Free Flow of Information Act of 2007, H.R. 2102, 110th Cong.
[20] “In recent years,” federal and state governments clashes in court with the press over the compelled disclosure of confidential source, have involved efforts to identify and prosecute those who leak classified information to reporters. H.R. Rep. 118–299 118th Cong., 1st Sess. 2. The Committee went on to observe:
Journalists argue that these actions have a chilling effect that disincentives whistleblowers and informants from coming forward with critical information. In turn, Americans may be prevented from learning information of a compelling public interest. . . At times, journalists rely on confidential sources to gather information vital to holding public and private institutions accountable.
Id. at 3.
[21] The Act does not apply to civil defamation, slander, or libel claims. This is consistent with some state shield laws, which do not apply or can be waived in defamation cases. See, e.g., Or. Rev. Stat. §44.530(c); 735 ILCS 5/8-9032(b); Tenn. Code Ann. § 24-1-208(b); THE LAW OF DEFAMATION, supra note 1, at §12:62; see generally, Reporters Committee for Freedom of the Press, Reporter’s Privilege Compendium.
[22] In general, the First-Amendment-based journalists’ privilege is applied less robustly when a journalist is a party to a litigation, such as in defamation actions. See, Zerilli v. Smith, 656 F.2d 705, 714 (D.C. Cir. 1981)(the “equities weigh somewhat more heavily in favor of disclosure” in libel cases; the journalist is a party and successful assertion of the privilege “will effectively shield him from liability”); see Weinberger v. Maplewood Review, 668 N.W.2d 667, 674 (Minn. 2003)(construing Minnesota Statutes § 595.025 (2002), which provided the prohibition of disclosure . . . shall not apply in any defamation action where the person seeking disclosure can demonstrate that the identity of the source will lead to relevant evidence on the issue of actual malice.”).
[23] The 2007 journalists’ shield law bill that passed the House included exceptions that permitted the privilege to be breached to discover the source of unlawfully disclosures of “individually identifiable health information” and “nonpublic personal information . . . of any consumer.” H.R. 2102, supra, §2(a)(3)(C)(ii) & (iii).
[24] A journalist would understandably insist upon seeing documentary proof or some sort of objectively verifiable proof of the credibility of a leaker’s assertions. Thus, if a source is purporting to describe some photograph in government files or some statement on an immigration application, the journalist may be reticent to publish a story based on such assertions without seeing the relevant document for themselves.
[25] Mulhern suggests that “gross negligence” is sufficient. Id. at 183 (citing Albright v. United States, 732 F.2d 181, 189 n. 25 (D.C. Cir. 1984)).
[26] Price v. Time, Inc., 416 F.3d 1327, 1345–46 (11th Cir. 2005); Star Editorial, Inc. v. U.S. Dist. Court for Cent. Dist. of California, 7 F.3d 856, 861 (9th Cir. 1993) (“[a]ctual malice would be extremely difficult to prove without knowing whether the confidential sources existed and, if so, what they said and whether they were credible”); Capuano v. Outlet Co., 579 A.2d 469 (1990)(“[w]hen the plaintiff is required to show by clear and convincing evidence that the defendant acted with malice, we find it impossible to uphold a discovery ruling that denies the plaintiffs the opportunity to examine the confidential sources on which the defendant relies.”). In Capuano, the Rhode Island Supreme Court analyzed the First-Amendment based privilege as well as applying the Rhode Island shield statute, R.I. Stat. 9-19.1-3(b)(1), which provided that the statutory journalist privilege “shall not apply . . . [t]o the source of any allegedly defamatory information in any case where the defendant, in a civil action for defamation, asserts a defense based on the source of such information[.]”
