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Rule 509. News Reporters.

 

(a)      Definitions.

 

(1)   "Newsreporter" means a publisher, editor, reporter or other similar persongathering information for the primary purpose of disseminating news to thepublic and any newspaper, magazine, or other periodical publication, pressassociation or wire service, radio station, television station, satellitebroadcast, cable system or other organization with whom that person isconnected.

 

(2)   "Confidentialsource information" means the name or any other information likely to leaddirectly to the disclosure of the identity of a person who gives information toa news reporter with a reasonable expectation of confidentiality.

 

(3)   "Confidentialunpublished news information" means information, other than confidentialsource information, that is gathered by a news reporter on condition ofconfidentiality. This includes notes, outtakes, photographs, tapes or otherdata that are maintained by the news reporter or by the organization or entityon whose behalf the reporter was acting to the extent such records includeinformation that was provided on condition of confidentiality.

 

(4)   "Otherunpublished news information" means information, other than confidentialunpublished news information, that is gathered by a news reporter. Thisincludes notes, outtakes, photographs, tapes or other data that are maintainedby the news reporter or by the organization or entity on whose behalf thereporter was acting.

 

(b)      Statementof the Privilege for Confidential Source Information. A news reporter or confidentialsource has a privilege to refuse to disclose — and to prevent any other personfrom disclosing — confidential source information, unless the person seekingthe information demonstrates by clear and convincing evidence that disclosureis necessary to prevent substantial injury or death.

 

(c)      Statementof the Privilege for Confidential Unpublished News Information. A news reporter has a privilege torefuse to disclose confidential unpublished news information, unless the personseeking the information demonstrates a need for that information thatsubstantially outweighs the interest of a continued free flow of information tonews reporters.

 

(d)      Statementof the Privilege for Other Unpublished News Information. A news reporter has a privilege torefuse to disclose other unpublished news information if the person claimingthe privilege demonstrates that the interest of a continued free flow ofinformation to news reporters outweighs the need for disclosure.

 

(e)      WhoMay Claim. Theprivileges may be claimed, as applicable, by the news reporter, theorganization or entity on whose behalf the news reporter was acting, theconfidential source, the news reporter’s or confidential source's guardian orconservator or the personal representative of a deceased news reporter orconfidential source.

 

(f)       InCamera Review. If thecourt makes an initial determination that information which is claimed to beprivileged under this rule should be disclosed, the court shall conduct an incamera review of that information before making a final determination requiringdisclosure.

 

 

2011 Advisory Committee Note. – The language of this rule has beenamended as part of the restyling of the Evidence Rules to make them more easilyunderstood and to make style and terminology consistent throughout the rules.These changes are intended to be stylistic only. There is no intent to changeany result in any ruling on evidence admissibility.

 

ADVISORY COMMITTEE NOTE

 

Protection of news gathering anddissemination has roots in the First Amendment of the United StatesConstitution. See Branzburg v. Hayes, 408 U.S. 665(1972); Redding v. Jacobsen, 639 P.2d 503 (Utah 1981). Since Branzburg, there has been an increasing but somewhatinconsistent development of the law concerning this privilege. Indeed, theextent of a federally-recognized privilege remains unclear. Many states haveaddressed the subject with legislation such that there is substantial variationin how the privilege may operate in different jurisdictions. The committee proposedthis rule to address any uncertainty that may exist under Utah law and toprovide for uniformity in the recognition of the privilege by Utah courts.

 

Although recognition of a reporter'sprivilege, as with all privileges, may limit the disclosure of specific factsin developing an evidentiary record in a particular case, the law has longrecognized that some societal needs and values outweigh disclosure. To thisend, the reporter's privilege has been recognized as important in assuring acontinued free flow of information to those who gather and publish the news.See Silkwood v. KerrMcGeeCorp., 563 F. 2d 433 (10th Cir. 1977); Bottomly v. Leucadia National Corp., 24 Media L. Rep. 2118, 1996 U.S.Dist LEXIS 14760 (D. Utah, July 2, 1996) (Boyce, J.); Edward L. Carter,Reporter's Privilege in Utah, 18 BYU Journal of Public Law 163 (2003).

 

This rule is intended to clarify thelegal standard to be applied in determining whether a news reporter may be compelledto disclose information gathered in the course of reporting the news. The rulerequires the court to consider the interests of the person seeking disclosureand the interests of the free flow of information to news reporters. In Silkwood, the court recognized that, in balancing theinterests, the court should consider as factors (1) whether the party seekingthe information has attempted independently to obtain the information, (2)whether the information being sought goes to the heart of the matter, (3)whether the information is of certain relevance, and (4) the type ofcontroversy. These are factors that should be considered by the court inweighing whether the need for the information outweighs the interest of acontinued free flow of information to news reporters. As the law in this areacontinues to develop, the court should consider other factors found toinfluence the open and free flow of information that is vital to our cultureand form of government. The rule incorporates a relatively broad and flexibledefinition of news reporter to accommodate the ever-changing methods ofexpression and publication. While there are not many "lonepamphleteers" still functioning, they may have modern-day counterparts onthe internet.

 

Because of the requirement that thecourt weigh the relevant criteria in deciding whether to require disclosure,the rule provides flexibility to address the different circumstances, manyunpredictable, that may arise. The rule provides the greatest protection to thename of a confidential source or other information that would lead directly tothe disclosure of the source's identity. See Subparagraph (b). The term“substantial injury” as used in Subparagraph (b) is not limited to bodilyinjury. For information obtained on condition of confidentiality, the rulerequires the person seeking the information to demonstrate that under thebalancing test set forth in Silkwood, and otherrelevant criteria the court may consider, the need for the information"substantially" outweighs the interests of society in protecting theinformation from disclosure. See Subparagraph (c). For other unpublished newsinformation, however, the person claiming the privilege must demonstrate thatthe need to encourage the free flow of information outweighs the need fordisclosure. See Subparagraph (d).

 

Although the rule does not containexceptions to the privilege, recognizing that in most cases those issues willbe resolved by applying the balancing test, the rule is not intended to limitor protect from disclosure those classes of information that by statute orother established law must be disclosed. See, e.g., Utah Code Annotated §62A-4a-401 et seq. regarding child abuse reporting requirements, and§76-5-111.1 regarding vulnerable adult abuse reporting requirements.

 

Finally, subparagraph (f) addsadditional protection to assure that a claimed need for information to bedisclosed is not abused. Once the court determines that the party seekingdisclosure has met the requirements under the balancing test, the court is thenrequired to review the information in camera to confirm that the representedneed for the information in fact balances in favor of disclosure. If uponreview of the information the court is satisfied that the balance favorsdisclosure, the court may make a final determination ordering the informationbe disclosed. This additional protection is not intended to infringe on thecourt's general discretionary authority to review evidence in camera wheneverit is deemed necessary.