The Act will not delay investigations or prosecutions

• By: ASNE staff
• On: 11/02/2007 13:13:05
• In: FOI

The Free Flow of Information (H.R. 2102 / S. 2035) will not delay investigations or prosecutions, and may even speed them up.

1. The Act Does Not Prevent or Restrict Subpoenas to Reporters
   
   • Right now, a litigant who wants information from a reporter must serve a subpoena on a reporter — just as the litigant must do when he wants information from any third party.
   • The Act imposes no restrictions on the service of subpoenas to a reporter. The process for serving a subpoena on a reporter will remain unchanged.
2. The Act Does Not Change the Procedures Governing a Motion to Quash
   
   • Right now, a reporter who objects to providing information in response to a subpoena must file a motion to quash with the Court. Under the Act, the process for filing a motion to quash will remain unchanged.
   • Motions to quash are routine and are provided for by the federal rules of civil and criminal procedure. Such motions are filed all the time — not just by reporters.
3. The Act May Actually Allow Investigations and Litigation to Proceed Faster.
   
   • Even without the Act, reporters routinely file motions to quash when served with subpoenas that require them to disclose confidential information. Without guidance from Congress, judges must wrestle with thorny questions of first impression which require more time to resolve.
   • By providing standards that are clear and uniform, the Act will make it easier — and faster — for judges to decide whether the reporter must disclose information.
4. In Emergencies, Courts Can and Will Expedite the Proceedings
   
   • Courts regularly expedite briefing and argument when required by an emergency. The Free Flow of Information Act does not change the rules by which a Court can make proceedings move faster when time is of the essence.
     • The Eleventh Circuit recently expedited briefing because the plaintiff was scheduled to be executed. See Arthur v. King, — F.3d —, 2007 WL 2744884, at *1 (11th Cir. Sept. 21, 2007).
     • A federal district court recently “set a very expedited briefing and argument schedule” to ensure that a dispute about school buses would be resolved before the start of the school year. See Rochester-Genesee Reg'l Transp. Auth. v. Brigid Hynes-Cherin, — F.Supp.2d —, 2007 WL 2570420, at *1 (W.D.N.Y. Aug. 28, 2007).