By Gerald Kato and Jeff Portnoy, Esq.

Hawai`i journalists have long faced the threat of having to reveal confidential sources of information. There’s no newsperson’s privilege statute, nothing in the Hawai`i Rules of Evidence, and the only case decided by the state Supreme Court said there is no constitutional right to conceal the identity of sources. But, Hawai`i may soon take a giant stride from one of worst states without a so-called "shield law" to protect a journalist from revealing sources to a state with one of the best shield laws in the country.

On April 29, 2007, the Legislature passed HB 2557, which will make Hawai`i the 36^th state in the country, along with the District of Columbia, to protect journalists and their sources. The new law will protect journalists employed by newspapers, magazines, and radio and television stations. And, in recognition of the changing media environment, it extends protection to non-traditional journalists such as bloggers if they work in the public interest and they hold a position similar to traditional journalists.

A lot of credit for supporting and shepherding the bill through the Legislature goes to Rep. Blake Oshiro (D), vice chair of the House Judiciary Committee. Last fall, Oshiro, who took an interest in the subject, contacted the Society of Professional Journalists and the Honolulu Community-Media Council to discuss drafts of a shield law bill that he was introducing.

The House Judiciary Committee took up Oshiro’s bill on Feb. 5, 2008. The bill generated a lot of concern nationally because it included a provision that those covered by the law follow journalism codes of ethics. Oshiro was flexible and moved the bill on for discussion without the ethics provision. At this point, the bill worked its way through the House. By late February, a news media coalition was organized to support passage of the bill. We—Portnoy and Kato—formed a task force together with Honolulu Community-Media Council President Chris Conybeare, and Honolulu Advertiser Editor Mark Platte.

In the Senate, the bill faced major opposition from the Attorney General’s Office and the law enforcement community. The Senate Judiciary Committee urged negotiations between the news media and the Attorney General’s Office. It was not until late March that discussions got underway between Portnoy and Attorney General Bennett. Beyond a new draft of the bill offered by Bennett, there did not seem to be much to talk about because of major differences between what Bennett thought was essential and what the news media was willing to accept. The bill seemed headed for the scrap heap. But, on the last possible day to get it out of committee, April 22, we got together with Oshiro to do some serious bargaining. Portnoy went nose-to-nose with Bennett on key points with Bennett willing to compromise while maintaining the need to protect the interests of law enforcement. With some added assistance from Oshiro, an agreement was reached that we believe strikes a balance between the journalists’ responsibilities to their source and their responsibilities as citizens of the community.

Like any compromise agreement that’s a product of the legislative process, we didn’t get everything we wanted and neither did the Attorney General. Nonetheless, the bill that emerged without a doubt advances the interest of the free flow of information in Hawai`i. Here’s how.

It protects journalists from being compelled to disclose confidential sources of information that could lead to a source’s identity. In addition, it protects any non-confidential newsgathering materials that has not been published or broadcast such as outtakes, photographs, and notes. This is significant because unpublished materials have frequently been a point of contention between the local news media and lawyers who have been issuing subpoenas seeking such materials.

As with most shield laws, there are exceptions. The shield law privilege is qualified in felony cases where there is "substantial evidence" the information is material to the investigation. In such cases, the privilege would be subject to a three-part test: (1) if the information sought is otherwise unavailable through other sources: (2) noncumulative, and; (3) necessary and relevant to the charge, claim or defense asserted. If not insurmountable, this is a major barrier to those seeking to force disclosure by journalists. There’s an absolute privilege in anything less than a felony and all civil cases, except defamation. Defamation cases would be subject to the same three-part test as felony cases.

The privilege is lost if the person claiming the privilege has committed, is committing or planning to commit a crime. Neither would the privilege apply if the person claiming the privilege observes the alleged commission of a crime so long as the crime in question was not the disclosure of the information. And, the privilege would not apply when the information is "important to help prevent imminent harm to life or public safety." In all such cases there were be a review by the courts.

While this may sound like a lot of exceptions, the fact is the bill provides ample protections to ensure that subpoenas to reveal sources will be limited. Prosecutors and attorneys will know the rules and the rules make it clear that trying to force testimony from a journalist should be the last resort and subject to restrictions.

For some, a major stumbling block in the bill is that it includes a shapeless category of designated as non-traditional journalists. Traditional journalists in the mainstream news media fear this gives protection to irresponsible bloggers unrestrained by ethical standards. Bloggers, on the other hand, say they should not be subjected to different requirement from traditional journalists for protection. Clearly, owning a laptop computer doesn’t make you a journalist; but there those such as documentary filmmakers, book authors, and bloggers who do work that would be considered journalism by any definition. This bill takes a practical approach by protecting those whose intent is to gather news and information in the public interest without regard to how they disseminate that news and information. That should be what the free flow of information is all about.

As we said at the outset, we think this is one of the best shield laws in the country and protects the interest of every journalist in Hawai`i whether they’ve been subject to a subpoena or not. But don’t get too comfortable. Lawmakers—for reasons of their own-- put a sunset provision in the bill that says it will expire in three years. We expect to see SPJ and every news media organization in Hawai`i on the frontlines at the Legislature to defend a bill we believe is worth preserving.


Lingle signs Reporter's Shield Law

A bill granting protection to the identities of confidential news sources and reporters' notes in many circumstances has been signed into law by Gov. Linda Lingle.

Look for a forum soon as attorney Jeff Portnoy explains what protections are granted by the law.

House and Senate conferees  agreed on changes to House Bill 2557, which provides protection of confidential sources for those in the traditional media as well as many in electronic media.

Its chief sponsor is Rep. Blake Oshiro.

Bills from the 2008 Legislature: