Advocates say authorities coerce journalists' sources, such as Joseph A. Bevilacqua, to sign away their confidentiality.

01:00 AM EST on Sunday, December 12, 2004

BY EDWARD FITZPATRICK and MIKE STANTON
Journal Staff Writers

PROVIDENCE -- In July 2002, a special prosecutor handed Channel 10's Jim Taricani a one-page document in which lawyer Joseph A. Bevilacqua Jr. released Taricani from any promise of confidentiality that the reporter might have given him.

It was a key moment because, as it turns out, Bevilacqua was the one who'd given Taricani the secret FBI videotape, in apparent violation of a court order.

Taricani consulted with his lawyer, William P. Robinson III, who's now a state Supreme Court justice, and decided to continue to refuse to tell the special prosecutor who had given him the tape of the top aide to former Mayor Vincent A. Cianci Jr. taking a bribe.

During his sentencing hearing, Taricani, who got six months on home confinement, said that he'd assumed Bevilacqua only signed the waiver to avoid arousing suspicion.

"I'd been to training sessions of journalism organizations that talked about waivers being used as a trick of a prosecutor in leak investigations," he said.

But special prosecutor Marc DeSisto argued that Taricani had "an absolute duty" to contact Bevilacqua to determine if he was, in fact, giving the reporter approval to disclose his identity. Instead, DeSisto said, Taricani waited at least two months before discussing the waiver with his source.

"Did those training sessions tell you to call [Bevilacqua] and ask him about the waiver?" DeSisto asked.

"I had no reason to," Taricani replied.

FREE-PRESS ADVOCATES say such waivers are often coerced and their use could limit the disclosure of government wrongdoing. But others say the waivers are a legitimate tool in cases where someone's broken the law in providing information to reporters.

Earlier this year, investigators sought confidentiality waivers from Bush administration officials to try to get reporters to say who illegally leaked the identity of undercover CIA agent Valerie Plame.

More recently, a federal judge ordered as many as 100 federal employees involved in the investigation of the 2001 anthrax attacks to sign confidentiality waivers. The order came at the request of lawyers for bioterrorism expert Dr. Steven J. Hatfill, who has filed a lawsuit alleging that government officials leaked damaging personal information about him to try to connect him to the attacks.

"Confidentiality waivers are not a new tool, but they are becoming increasingly prevalent," said Charles Davis, executive director of the Freedom of Information Center at the Missouri School of Journalism.

While waivers were used in a few isolated cases in the 1970s, they are now being distributed by the dozens to try to ratchet up pressure on reporters to give up their sources, said Lucy A. Dalglish, executive director of The Reporters Committee for Freedom of the Press.

AND THE EFFECT has been chilling, Davis and Dalglish said.

"What I'm really concerned about is whistleblowers," Dalglish said. "I just heard from a reporter who had National Park Service employees out West afraid to talk about the effect of budget cuts. What's next? Will they bar Army soldiers from talking about the lack of armor on Humvees?"

Dalglish is also concerned about the effect on journalists.

"If they stop sticking to their guns, we'll see a wholesale movement of prosecutors using journalists as federal investigators," she said. "The idea that journalists could be perceived as and actually be agents of the federal government terrifies me. If they're perceived that way, what motivation would sources have to give them information about government wrongdoing?"

Davis said that if Taricani had divulged Bevilacqua's identity after seeing the waiver, "that would scare the hell out of the rest of his source network. They would see Taricani as someone who had gone back on his word. They would say, 'Now he is lawyering -- looking at what the definition of 'is' is -- and not saying, 'My word is my word.' "

Dalglish emphasized that people who sign confidentiality waivers are usually under extreme pressure and fear for their jobs. She drew a parallel to contract law, where pacts signed "under duress" are considered invalid.

But Victoria Toensing, a former federal prosecutor and chief counsel to Sen. Barry Goldwater, said confidentiality waivers are a valid legal tool and that courts would never view them as "a prosecutor's trick."

Toensing, who was instrumental in passage of laws protecting the identity of intelligence agents and keeping certain classified information from being disclosed under the Freedom of Information Act, said employers can tell employees to "talk or walk" when there is an investigation. In other words, she said, "The company or the government can say to an employee, 'Cooperate or you don't have a job.' It's established in law."

While press advocates talk about a "reporter's privilege" to keep sources confidential, Toensing said the privilege belongs to the source. Similarly, she said, clients may waive the confidentiality they have with their attorneys, and patients may waive the confidentiality they have with their doctors.

Toensing, a founding partner of the Washington law firm diGenova and Toensing, challenged the idea that confidentiality waivers are proliferating. While a few cases are getting a lot of publicity, that doesn't mean there's a significant new trend, she said, making a comparison to the idea that there was a big increase in shark attacks a few years ago.

Toensing also challenged the idea that confidentiality waivers are having a "chilling effect" on bringing wrongdoing to light. It's not that common, she said, for people to violate the law in providing information to journalists. "The only problem is when it's classified information or it's provided in violation of a court order or it's grand jury information," she said.

Government employees who follow the law can provide a wide range of information about government wrongdoing without ever being handed a confidentiality waiver, Toensing said. "You can still say, 'My boss is cheating on his travel vouchers,' and there will be no investigation," she said.

Toensing noted that in Taricani's case, the government had already discovered the wrongdoing and was pursuing corruption charges against City Hall officials. The undercover tape that Channel 10 aired in February 2001 shows Frank E. Corrente, then Cianci's top aide, accepting a $1,000 bribe.

Corrente's lawyer, C. Leonard O'Brien, said waivers generally have no validity if they're compelled.

"But that's not an issue here as much as what happened once the waiver was put into play," O'Brien said. "It wasn't so much a question of the legitimacy of the waiver as Taricani not testing it out immediately after he learned about it."

DAVID M. RUBIN, dean of the S.I. Newhouse School of Public Communications at Syracuse University, said, "It's possible that when someone signs these waivers, they are not signing them with a free will." And in those cases, journalists "ethically can go forward" with keeping a promise of confidentiality despite a signed waiver, he said.

But Rubin said journalists should call the source after seeing a waiver to ask, "What's cooking here?"

Under questioning from the judge Thursday, Taricani said he did bring up the waiver the next time he spoke with Bevilacqua, but he acknowledged that was a couple of months after his deposition.

Taricani said he told Bevilacqua: "I was taken aback by seeing your waiver thrown in front of me. He kind of laughed and said, 'I felt I had to sign that thing because it would raise suspicion on me if I didn't.' I said, 'I didn't answer [questions from DeSisto] because I didn't think you'd want me to,' and he said, 'You're right.' "

Later, the judge asked Bevilacqua why he signed the March 21, 2002, waiver if he had an agreement with Taricani not to divulge his identity. Bevilacqua said, "I was somewhat upset he played the tape before the [Corrente] trial even began . . . and I signed the waiver and let Jim do whatever he was going to do."

O'Brien said he understands Taricani's viewpoint that Bevilacqua's waiver didn't have much validity. "But ultimately it didn't matter because the judge had ruled that there was no newsman's privilege here," he said. "With or without the waiver, the judge had ruled that Taricani had to disclose the source."

O'Brien said he was perplexed by parts of Thursday's testimony. "Why wouldn't Joe [Bevilacqua] call Taricani after he signed the waiver and either say, 'Yes, it's OK to tell them I'm your source,' or 'No, don't tell them.' Instead, there was no communication whatsoever."

O'Brien said he doesn't agree that the waiver is a "prosecutor's trick." But he said Taricani might have legitimately wondered why Bevilacqua didn't just come forward if he had been willing to be revealed. "Why not just admit it? If the waiver is really voluntary, why didn't Joe just say he was the guy?" he asked.

For all the talk of the confidentiality waiver, it's proven to be an elusive document.

DeSisto handed the waiver to Taricani when he was on the witness stand, but the special prosecutor never introduced it as an exhibit, so the document is not available to the public in the court file.

DIGITAL EXTRA: Recap the case against Channel 10 reporter Jim Taricani, view court documents and the FBI video, and add your comments about the sentencing:

http://projo.com/extra/2004/taricani/