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 The Constitution also shields the journalist from contempt for refusing to disclose any "unpublished information," such as notes, interviews, or other material gathered in the process of researching or writing a story.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notice to a journalist if the subpoena is issued to a third party that may be in possession of the records or other unpublished information of a journalist.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 SB 558 Page 2 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 SB 558 Page 3 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).) SB 558 Page 4 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 SB 558 Page 5 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 SB 558 Page 6 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