Attorney General Releases New Guidance For Obtaining Journalist Records

Bryce Klehm
Monday, July 19, 2021, 12:32 PM

Published by The Lawfare Institute
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On July 19, the Department of Justice released a memorandum from Attorney General Merrick Garland that features new guidelines for “obtaining information, or records of, members of the news media.” Garland notes that the Justice Department currently uses a balancing test when deciding whether or not to pursue a journalist’s records but that such a test “may fail to properly weigh the important national interests in protecting journalists from compelled disclosure of information revealing their sources, sources they need to apprise the American people of the workings of their government.”

The new guidance includes a prohibition on using “compulsory legal process for the purposes of obtaining information from or records of members of the news media acting within the scope of newsgathering activities,” as defined in the memorandum. The prohibition does not apply to various circumstances such as when a journalist is under criminal investigation for something like insider trading, but it does apply “when a member of the news media has, in the course of newsgathering, only possessed or published government information, including classified information.”

The memorandum also asks the deputy attorney general to review current regulations and “undertake a review process to further explain, develop, and codify” the protections outlined in the memorandum. It also notes that the Department of Justice “will support congressional legislation to embody protections in the law.” You can read the memorandum here and below.

Bryce Klehm is a first year law student at the University of Pennsylvania Law School. He is a former associate editor at Lawfare.

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