Six journalists who were secretly taped by a former spokesman for Attorney General Jerry Brown refused to be interviewed in an independent investigation of the tapings, Alameda County District Attorney Nancy O’Malley told the Express today. O’Malley said that when her office tried to contact the reporters — including longtime San Francisco Chronicle journalist Carla Marinucci — they all referred her to their attorneys. The reporters’ attorneys then cited the state’s shield law for journalists as to why they would not be interviewed.
Marinucci did not immediately return phone calls today, seeking comment, but the decision to refuse to be interviewed is an odd one. The Chronicle had made a huge deal out of the fact that Brown’s former spokesman Scott Gerber had taped an interview that Marinucci conducted last year with attorney general’s office lawyers without her knowledge. The paper even put the story about the incident on Page One. Maybe now it makes sense that the Chron buried the news on Friday about O’Malley’s decision to not file charges against Gerber.
It’s also unclear as to how the shield law, which is primarily designed to enable journalists to keep their sources confidential, would apply to a case in which reporters were secretly taped by a government spokesman. Gerber resigned over the incident because he violated the attorney general’s office prohibition on taping people without their knowledge. Brown then asked O'Malley to invesigate after he took criticism for clearing Gerber of any legal wrongdoing.
O’Malley said that without the reporters’ version of events, she had no choice but to dismiss the case. However, in talking with her, it became clear that even if the reporters had spoken to her, she probably still would not have filed charges against Gerber. The reason is that O’Malley said she would have to prove in court that the reporters had an “expectation of privacy,” in their calls to the attorney general’s office. And that would be a tough case to make, she said, because all of the calls that the journalists made apparently were “on-the-record interviews.”
O’Malley refused to comment on the possible ramifications of her decision. But the logical extension of the “expectation of privacy” standard would lead one to conclude that all “on-the-record” conversations between journalists and sources can be secretly taped by either party. And that would represent a huge change in traditional journalistic practice, because it’s a basic tenet among reporters that you don’t record someone’s conversation without their approval.