BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 558
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          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          refusing to disclose any "unpublished information," such as  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