BILL ANALYSIS �
SB 558
Page 1
SENATE THIRD READING
SB 558 (Lieu)
As Amended August 12, 2013
Majority vote
SENATE VOTE :34-0
JUDICIARY 10-0 APPROPRIATIONS 17-0
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|Ayes:|Wieckowski, Wagner, |Ayes:|Gatto, Harkey, Bigelow, |
| |Alejo, Chau, Dickinson, | |Bocanegra, Bradford, Ian |
| |Garcia, Gorell, | |Calderon, Campos, |
| |Maienschein, Muratsuchi, | |Donnelly, Eggman, Gomez, |
| |Stone | |Hall, Holden, Linder, |
| | | |Pan, Quirk, Wagner, Weber |
|-----+--------------------------+-----+--------------------------|
| | | | |
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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 circumstances that pose a clear
and substantial threat to the integrity of a criminal
investigation or present an imminent risk of death or serious
bodily harm, 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
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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unpublished information, as defined, obtained or prepared in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.
2)Prohibits a radio or television news reporter or other person
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.
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 data 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.
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.
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.
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
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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.
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 five days prior to service upon the
custodian of the records, plus additional time, as specified,
if service is by mail.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, any costs to a state or local government entity to
comply with the additional requirements will be minor and
absorbable. Any costs to local governments are not state
reimbursable.
COMMENTS : This bill would 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 would do
this by requiring any party seeking 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 law 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
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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.
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
legislation.
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334
FN: 0001604