Don’t promise confidentiality casually or needlessly. Many sources expect an agreement that a comment will not be attributed to them by name in an article, but they do not expect a reporter to promise absolute confidentiality. Unless you have discussed and agreed to absolute confidentiality, don’t assume that a source expects you will never reveal his or her identity.
If a source requests confidentiality or wants to talk “off the record” or “on background,” discuss what he or she means by those terms. Attempt to persuade the source not to require confidentiality as part of the bargain for information. Attempt to persuade the source to agree that any pledge of confidentiality will become void in the event a court orders disclosure and all available appeals are exhausted.
If you intend to promise confidentiality, do so clearly and negotiate limitations if possible. Don’t leave yourself in a position of being uncertain whether you have promised confidentiality to a source.
If the source insists upon absolute confidentiality, make a determination in your own mind regarding whether the source would – if approached after a court ordered disclosure of his or her identity – be likely to release you from your pledge of confidentiality. Determine whether the source’s asserted need for confidentiality is a matter of convenience, job security or personal safety.
Know your newspaper’s or station’s policy regarding confidential sources and abide by it. Note that even when the statutory or First Amendment qualified privilege is applied by a court, it can be overcome by a demonstration that the information sought is relevant, essential and cannot be obtained from alternative sources. The court may then order the disclosure of the name of the confidential source and impose sanctions – jail and/or fines – on the reporter and the newspaper or other media company for failure to obey its order.
Before publication, determine how you would attempt to prove the truth of all statements in a story without reliance on the information provided by the confidential source. This is important when you are defending yourself against a libel suit.
Determine whether a prosecutor or potential criminal or civil litigant would have alternative sources of the information you have obtained from the confidential source.
If you promise confidentiality, maintain it. Don’t disclose the source’s identity to anyone who has no compelling need to know, especially friends or family members. Don’t disclose the identity of the source to your attorney unless your editor and the attorney agree that there is a need for the attorney to know.
If your newspaper or station has a policy about retaining notes and other documents related to stories, follow it. If your employer has no policy, use your common sense about the importance of those notes to the article, the quality of those notes and whether they would be helpful in the event of a libel suit. Don’t include commentary or asides in your notes that you would be embarrassed to have read aloud to a judge or jury.
Don’t make a casual decision to disclose a confidential source for editorial reasons. Such disclosure could subject the reporter and newspaper to liability for breach of contract or under some other legal theory, as noted above.
If served with a subpoena from a U.S. attorney, check with your attorney to determine if the U.S. attorney general’s guidelines on when federal law enforcement officials may issue subpoenas to obtain information from reporters have been met.
Analyze facts of the criminal or civil litigation closely to bolster your argument that your confidential source or information is not crucial to the outcome of the litigation. Prepare to demonstrate to the court that there is equivalent evidence available from other sources. Prepare to demonstrate that there are potential sources of the information that have not been investigated by the parties.
Should all else fail, pack your toothbrush and some good reading material and stand by your journalistic principles.