Convertino v. DOJ

Concerning the Privacy Act Liability of Federal Agencies for "Leaks" from Unidentified Government Officials

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Background

This case arises from an article published in the Detroit Free Press on January 17, 2004. In the article, Terror Case Prosecutor is Probed on Conduct, author David Ashenfelter detailed the misdeeds of Assistant United States Attorney Richard G. Convertino, who was assigned to prosecute the case of Kareem Koubriti and two others after they were discovered in the apartment of an individual on the FBI Watchlist less than a week after the September 11th Attacks. Convertino went to great lengths to discover the source of the leak that led to Ashenfelter's article, but after an internal Department of Justice ("DOJ") investigation and years of civil discovery he has been unable to identify the source. Shortly after the article was published, Convertino sued the DOJ alleging violations of the Privacy Act. However, the district court granted the DOJ's motion for summary judgment on the grounds that Convertino could not establish a "willfull and intentional" violation by the DOJ without knowing the identity of the leaker.

The Koubriti case was the first high-profile terrorism case to proceed to trial after 9/11. The convictions were eventually overturned because of prosecutorial misconduct. DOJ alleges that Convertino broke an "astonishing number of rules and DOJ policies during the prosecution," and his misconduct eventually led to an internal investigation and "referral to DOJ's Office of Professional Responsibility" in November of 2003. Convertino v. DOJ, 769 F.Supp.2d 139, 141 (D.D.C. 2011). A few months later, Ashenfelter got information about the referral and published a full expose in the Detroit Free Press. The DOJ's Office of the Inspector General ("OIG") conducted an investigation to determine the source of the leak, but was "unable to determine by a preponderance of the evidence the source of the information about Covertino." Id. at 142. Convertino attempted to obtain the identity of Ashenfelter's source through civil discovery. The District Court for the Eastern District of Michigan even granted Convertino's motion to compel Ashenfelter's compliance with a subpoena issued, finding that "identification of Ashenfelter's source or sources was necessary for Convertino to have any chance of prevailing in his Privacy Act suit against DOJ." Id. at 143. However, when Convertino finally deposed Ashenfelter, he "invoked his Fifth Amendment privilege and refused to substantively answer any questions." Id. After Convertino's "monumental effort" to identify the source, he was unable to answer what the district court saw as the "question that lies at the heart of [his] case." Id. at 144.

Convertino alleged that an anonymous DOJ employee disclosed the details of his referral to DOJ's Office of Professional Responsibility in retaliation for his criticism of the Department and his testimony before the Senate Finance Committee. The district court found that this allegation, absent further evidence of the nature of the disclosure, represented a "failure to produce any evidence that DOJ acted intentionally or willfully" and was "fatal to all of his claims." Id. at 145. The court noted that the "willful and intentional" standard under the Privacy Act's civil remedy provision, 5 U.S.C. §552a(g)(4), is "unique and exacting." Id. at 145.

The court held that Convertino could not establish the necessary DOJ intent without knowledge of the leaker's identity. Id. at 146. Convertino argued that there was sufficient evidence to show "that leaked information was closely held within the DOJ and available only to a limited number of department officials," which should suffice to raise a material factual issue about the disclosure. The court cited two previous cases involving confidential sources and alleged Privacy Act violations, McCready v. Nicholson and Lee v. DOJ, and distinguished the primary case cited by Convertino, Pilon v. DOJ. Id.

EPIC's Interest in Convertino v. DOJ

EPIC has an interest in strong Privacy Act protections. Those Privacy Act protections may be weakened where a Government Agency discloses information, but the source of the leak is unknown. If courts require a plaintiff to identify a specific individual within an agency as the source of the disclosure, then it will be more difficult to enforce Privacy Act protections in this context.

Legal Documents

Court of Appeals for the District of Columbia Circuit

United States District Court for the District of Columbia

Resources

Related Cases

  • Zerilli v. Smith, 656 F.2d 705 (D.C. Cir. 2002) ()
  • McCready v. Principi, 297 F.Supp.2d 178 (D.D.C. 2007) ()
  • Lee v. DOJ, 401 F.Supp.2d 123 (D.D.C. 2005) ()
  • Pilon v. DOJ, 796 F.Supp 7 (D.D.C. 1992) ()

Law Review Articles and Books

  • Jonathan C. Bond, Defining Disclosure in A Digital Age: Updating the Privacy Act for the Twenty-First Century, 76 Geo. Wash. L. Rev. 1232, 1233 (2008)
  • Evidence - Journalist Privilege - District of Columbia Circuit Holds That Privacy Act Suit Satisfies Two-Prong Test to Overcome Journalist Privilege to Conceal Confidential Sources. - Lee v. Department of Justice, 119 Harv. L. Rev. 1923 (2006)
  • Michelle C. Gabriel, Plugging Leaks: The Necessity of Distinguishing Whistleblowers and Wrongdoers in the Free Flow of Information Act, 40 Loy. U. Chi. L.J. 531 (2009)

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