BILL ANALYSIS Ó
SB 558
Page 1
Date of Hearing: June 25, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
SB 558 (Lieu) - As Amended: June 6, 2013
SENATE VOTE : Not Relevant
SUBJECT : Reporters' Shield Law
KEY ISSUE : Should a PARTY issuing a subpoena to a third party
that holds the records of a journalist provide five-days prior
notice to the journalist and his or her publisher?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
In order to better protect the ability of journalists to protect
their sources, the California Constitution prevents a publisher,
journalist, or any other person employed by a newspaper or other
publication, or by any broadcast news station, from being held
in contempt for refusing to disclose a news source. The
Constitution also shields the journalist from contempt for
refusing to disclose any "unpublished information," such as
notes, interviews, or other material gathered in the process of
researching or writing a story. In furtherance of this
constitutional right, California statutes impose certain
requirements and limitations on efforts to obtain a journalist's
records or testimony by subpoena, including a requirement that a
journalist who is subpoenaed in a civil or criminal proceeding
be given at least five days' notice by the party issuing the
subpoena that his or her appearance will be required.
Collectively, these constitutional and statutory provisions are
known as the "Reporters' Shield Law." However, while existing
law offers protection when a subpoena is issued directly to the
journalist, it does not require prior notice to a journalist if
the subpoena is issued to a third party that may be in
possession of the records or other unpublished information of a
journalist. Thus, this bill would require a party that issues a
subpoena to a third party - when seeking to obtain a
journalist's records - to serve notice upon the journalist and
publisher at least five days prior to issuing the subpoena to
the third party. The bill further requires that the notice
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contain an explanation of why the subpoena is necessary and
material, and why alternate sources are not sufficient to avoid
the need for a subpoena. Existing law similarly requires prior
notice when a party subpoenas the records of a customer or
employee from a third-party business or employer. This bill is
sponsored by the California Newspaper Publishers Association.
There is no known opposition to this bill. The author will take
the technical amendments listed below in the Appropriations
Committee.
SUMMARY : Requires a party issuing a subpoena to a third party
that seeks the records of a journalist to provide prior notice
of the subpoena to the journalist and publisher, as specified.
Specifically, this bill :
1)Provides that a party or body issuing a subpoena in any civil
or criminal proceeding to a third party to seek the records of
a journalist shall, except in exigent circumstances, provide
notice of the subpoena to the journalist and the publisher of
the newspaper, magazine, or other publication, or the station
operations manager of the broadcast station, that employs or
contracts with the journalist at least five days prior to
issuing the subpoena.
2)Requires the above notice to include, at a minimum, an
explanation of why the requested records will be of material
assistance to the party or body seeking them and why alternate
sources of information are not sufficient to avoid the need
for the subpoena.
EXISTING LAW :
1)Prohibits a publisher, editor, reporter, or other person
connected with or employed by a newspaper, magazine, or other
periodical publication, or by a press association or wire
service, from being held in contempt for refusing to disclose
the source of any information procured for the publication
while so connected or employed by the newspaper, magazine or
other periodical publication, or for refusing to disclose any
unpublished information, as defined, obtained or prepared in
gathering, receiving, or processing of information for
communication to the public. (Article 1 Section 2(b) of the
California Constitution.)
2)Prohibits a radio or television news reporter or other person
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connected with or employed by a radio or television station,
or any other person who has been so connected or employed, to
be held in contempt for refusing to disclose the source of any
information procured while so connected or employed for news
or news commentary purposes on radio or television, or for
refusing to disclose any unpublished information obtained or
prepared in the gathering, receiving, or processing of
information for communication to the public. (Article 1
Section 2(b) of the California Constitution.
3)Defines "unpublished information," for purposes of the above
provisions, to include information not disseminated to the
public by the person from whom disclosure is sought, whether
or not related information has been disseminated and includes,
but is not limited to, all notes, outtakes, photographs, tapes
or other stat of whatever sort not itself disseminated to the
public through a medium of communication, whether or not
published information based upon or related to such material
has been disseminated. (Article I Section 2(b) of the
California Constitution.)
4)Provides that no testimony or other evidence given by a
journalist under subpoena in a civil or criminal proceeding
may be construed as a waiver of the immunity rights granted by
the California Constitution, as described above. (Code of
Civil Procedure Section 1986.1 (a).)
5)Requires, except in exigent circumstances, that a journalist
who is subpoenaed in a civil or criminal proceeding be given
at least five days' notice by the party issuing the subpoena
that his or her appearance will be required. (Code of Civil
Procedure Section 1986.1 (b).)
6)Provides that if a trial court holds a journalist in contempt
of court in a criminal proceeding, notwithstanding the
constitutional provision prohibiting the same, the court shall
set forth findings, either in writing or on the record,
stating at a minimum, why the information will be of material
assistance to the party seeking the evidence, and why
alternate sources of information are not sufficient to satisfy
the defendant's right to a fair trial under the Sixth
Amendment of the United States Constitution and Section 15 of
Article I of the California Constitution. (Code of Civil
Procedure Section 1986.1 (c).)
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7)Requires a party issuing a subpoena to a third party for
production of the personal records of an employee or consumer
to serve notice to the employee or consumer at least 10 days
prior to the date specified for the production of the
documents and at least 5 days prior to service upon the
custodian of the records, plus additional time, as specified,
if service is by mail. (Code of Civil Procedure Sections
1985.3 and 1985.6.)
COMMENTS : According to the author, this bill seeks to prevent a
third party from disclosing a journalist's confidential sources
and unpublished information that may be in the possession of the
third party. It seeks to do this by requiring any party that
seeks to subpoena those records from the third party to serve
notice upon the journalist that such records or information is
being sought. The California Constitution provides that, except
under exigent circumstances, a journalist (including a
television or radio journalist) may not be held in contempt of
court for refusing to disclose sources of unpublished
information gathered for a story. Existing statutory law
specifies that a journalist does not waive this constitutional
right providing testimony or other evidence under a subpoena.
In addition, existing law requires that a journalist who is
subpoenaed in any civil or criminal proceeding shall be given a
least five days' notice by the party issuing the subpoena that
his or her appearance will be required.
However, existing does not require that any notice be sent to a
journalist if his or her records or unpublished information is
held by a third party that is subpoenaed for the records or
information. Under existing law, either a party or the entity
that is subpoenaed may move to quash or modify a subpoena
request, especially where information is confidential or
privileged. But, at the risk of stating the obvious, a party
that does not know that his or her information is being
subpoenaed from a third party cannot attempt to quash the
request. Existing law already recognizes this problem in two
situations: a party issuing a subpoena that seeks the personal
records of a customer or employee that are held by a business or
employer must provide prior notice to the customer or employee
that a subpoena will be sought. This bill would effectively
extend a similar protection to journalists, publishers, editors,
or other employees of print or broadcast media.
As with existing law and practice, this bill would apply to any
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subpoena issued by a party, or by a body having authority to
issue a subpoena, in connection with a civil or criminal
"proceeding," where "proceeding" is broadly defined to include
any action, hearing, investigation, inquest, or inquiry (whether
conducted by a court, administrative agency, hearing officer,
arbitrator, legislative body, or any other person authorized by
law) in which testimony can be compelled to be given. (Evidence
Code Section 901; see also California Points and Authorities,
Section 81.294.)
The existing statutory provisions of the Reporters' Shield Law
define "journalist" by reference to the persons covered by the
California Constitution. Although Article I, Section 2 of
California Constitution does not actually define "journalists,"
it covers "a publisher, editor, reporter, or other person
connected with or employed upon a newspaper, magazine, or other
periodical publication, or by a press or wire service," or any
person who has been so connected or employed, and as well as "a
radio or television reporter or other person connected with or
employed by a radio or television station," or any person who
has been so connected or employed.
ARGUMENTS IN SUPPORT : According to the author, this bill would
provide a necessary supplement to the existing Constitutional
and statutory protections provided by California's existing
Reporters' Shield Law. The author contends that "SB 558 would
allow a journalist or media organization to challenge the
subpoena and either quash it or narrow its scope." The author
claims that the need for this bill is illustrated by the reports
earlier this year showing that the U.S. Department of Justice
secretly collected, pursuant to subpoena, two months of
Associated Press phone records in New York, Hartford,
Connecticut, and Washington, D.C. The Department of Justice
never provided notice to the Associated Press that it was
seeking this information. This bill, the author contends,
"would help ensure that what happened to the AP in Washington,
D.C., won't happen in the Golden State."
According to the California Newspaper Publishers Association
(CNPA), the sponsor, "SB 558 is intended to give journalists and
their newspaper or media employers a chance to become aware of
the threat to their unpublished information and confidential
sources and the time to engage the judicial process to protect
their shield law rights." CNPA also cites the secret subpoenas
against the Associated Press to highlight the need for this
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legislation.
PROPOSED TECHNICAL AMENDMENTS TO BE TAKEN IN APPROPRIATIONS
CMTE :
- On page 3 line 3 before "body" insert: party or
- On page 3 line 10 before "body" insert: party or
REGISTERED SUPPORT / OPPOSITION :
Support
California Newspaper Publishers Association
Opposition
None on file
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334