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The News Tribune objects to subpoena from prosecutor seeking whistleblower records

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The Pierce County Prosecutor’s Office recently subpoenaed multiple news outlets, including The News Tribune, for information about a whistleblower complaint against Medical Examiner Thomas Clark.

The subpoena served to The News Tribune, dated Aug. 5, sought “emails texts and/or phone messages, which tend to demonstrate, acknowledge, or show Tacoma News Tribune receipt of Dr. Megan Quinn’s whistleblower complaint against Pierce County.”

The Prosecutor’s Office said Tuesday that it also subpoenaed KOMO 4, KING 5 and KIRO 7, but that all four subpoenas have been retracted for now.

Asked Tuesday if the withdrawal of the subpoena is the end of The News Tribune’s involvement or if the paper would be subpoenaed again, Prosecutor Mary Robnett said: “It’s hard for me to predict what might happen in the future, but I think the posture we’re in now is we recognize there’s a shield for journalists, for media outlets. We’re not attempting to find out the source of this information to the media, including The News Tribune, merely the timing. The timing is relevant.”

The letter that accompanied the subpoena said the county wants to know when the newspaper received a copy of the January whistleblower complaint, in which Quinn, Clark’s second in command, alleged Clark mishandled death investigations and had a toxic work environment.

“We don’t think it’s something that they can ask of us,” News Tribune editor Dale Phelps said. “... This seems to be kind of a poster child for what the government is not allowed to subpoena.”

He said the paper has not received any other subpoenas since he became the top editor in 2017.

“In some ways, particularly in a whistleblower situation, it would suppress people from pointing out wrongdoing in an agency,” Phelps said.

The threat of a subpoena could be seen as intimidating to the press and to sources, he added.

“We take the reporter source privilege seriously,” he said. “We always intend to protect our sources. We think it’s an important part of holding government accountable.”

Robnett suggested redaction of any records held by news outlets could be a way to protect the source.

“As someone who provides lots and lots of public records pursuant to public records requests, it’s not unusual to redact information that we believe is privileged and provide the records that are requested,” Robnett said.

Asked if she approved the issuance of subpoena beforehand or knew about it before it went out, Robnett said she did not.

Asked if the subpoena violated the state’s shield law, which protects journalists from having to divulge news-gathering materials, she said: “I haven’t researched that particular issue. Clearly our deputy prosecutor who issued this researched it and believed it did not violate the shield law. That may be a subject for further discussion with The News Tribune and other outlets.”

She went on to say: “We obviously value the public’s right to know. We’re very transparent here in terms of public records. The fact that we value the public’s right to know means that we also value the role that journalism and media play in informing the public, and we respect the shield, the journalistic privilege. We’re not trying to violate that in any way.”

Quinn’s attorney, Joan Mell, argued the subpoena was a move to strip Quinn of whistleblower protections that could allow Quinn to be reinstated and protected from retaliation and to have Clark removed.

County code says Quinn, who was put on paid administrative leave in February, could lose her whistleblower protections if she gave her complaint to the media before filing it with the county.

“Dr. Quinn is seeking immediate reinstatement and removal of Dr. Clark under the whistleblower retaliation rules, and Pierce County wants to continue to deny her whistleblower protection,” Mell said. “... The county got served with the whistleblower complaint before Dr. Quinn spoke to the media.”

The News Tribune asked the Prosecutor’s Office about Mell’s contention.

“There is some indication that the whistleblower may have provided information to another person or entity (the various media outlets, including The News Tribune) prior to filing a written report with the County Human Resources Director,” the office said in a statement.

Attorney Bruce E.H. Johnson said he wrote the state’s shield law in 2007.

“I think it’s very important to keep the media from becoming essentially arms of the government,” he said. “The shield law is important to reinforce the First Amendment protections for the media.”

The press, he said, “exists as a means for protecting us from government abuse, which requires the press to be independent.”

Asked how the shield law might apply in The News Tribune’s case, he read part of the law out loud and said, “Bingo.”

The law says in part that the media can’t be forced to disclose: “Any news or information obtained or prepared by the news media in its capacity in gathering, receiving, or processing news or information for potential communication to the public, including, but not limited to, any notes, outtakes, photographs, video or sound tapes, film, or other data of whatever sort in any medium now known or hereafter devised.”

Johnson went on to say, “Ask the person who sent it, not the media outlet. To my mind this is a very easy answer that they haven’t exhausted all reasonable means to get it from Joan Mell or her client.”

Asked how often the press is subpoenaed in Washington state, Johnson said it seems to happen once or twice every couple years.

“They usually go away very quickly,” once the media outlets object, he said. “... I think it’s partly just a function of: ‘Let’s see if we can send the subpoena out and maybe they won’t object or maybe we can get lucky.’”

Asked how many subpoenas to the press come from prosecutors, he said: “In our state it’s very rare. The prosecutors on the whole tend to be very careful about issuing subpoenas to the press.”

Phelps said something similar.

“Anyone we’ve talked to about it has been stunned that it’s coming out of a prosecutor’s office,” he said.

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Alexis Krell covers local, state and federal court cases that affect Pierce County. She started covering courts in 2016. Before that she wrote about crime and breaking news for almost four years as The News Tribune’s night reporter.
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