(b) Statement of the Privilege for Confidential Source Information
(c) Statement of the Privilege for Confidential Unpublished News Information.
(d) Statement of the Privilege for Other Unpublished News Information.
(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 the court makes aninitial determination that information which is claimed to be privileged underthis rule should be disclosed, the court shall conduct an in camera review ofthat information before making a final determination requiring disclosure.
EffectiveJanuary 23, 2008
Althoughrecognition of a reporter's privilege, as with all privileges, may limit thedisclosure of specific facts in developing an evidentiary record in aparticular case, the law has long recognized that some societal needs andvalues outweigh disclosure. To this end, the reporter's privilege has beenrecognized as important in assuring a continued free flow of information tothose who gather and publish the news. See
This ruleis intended to clarify the legal standard to be applied in determining whether anews reporter may be compelled to disclose information gathered in the courseof reporting the news. The rule requires the court to consider the interests ofthe person seeking disclosure and the interests of the free flow of informationto news reporters. In Silkwood,the court recognized that, in balancing the interests, the court shouldconsider as factors (1) whether the party seeking the information has attemptedindependently to obtain the information, (2) whether the information beingsought goes to the heart of the matter, (3) whether the information is ofcertain relevance, and (4) the type of controversy. These are factors thatshould be considered by the court in weighing whether the need for theinformation outweighs the interest of a continued free flow of information tonews reporters. As the law in this area continues to develop, the court shouldconsider other factors found to influence the open and free flow of informationthat is vital to our culture and form of government. The rule incorporates arelatively broad and flexible definition of news reporter to accommodate theever-changing methods of expression and publication. While there are not many"lone pamphleteers" still functioning, they may have modern-daycounterparts on the internet.
Becauseof the requirement that the court weigh the relevant criteria in decidingwhether to require disclosure, the rule provides flexibility to address thedifferent circumstances, many unpredictable, that may arise. The rule providesthe greatest protection to the name of a confidential source or otherinformation that would lead directly to the disclosure of the source'sidentity. See Subparagraph (b). The term ?substantial injury? as used inSubparagraph (b) is not limited to bodily injury. For information obtained oncondition of confidentiality, the rule requires the person seeking theinformation to demonstrate that under the balancing test set forth in
Althoughthe rule does not contain exceptions to the privilege, recognizing that in mostcases those issues will be resolved by applying the balancing test, the rule isnot intended to limit or protect from disclosure those classes of informationthat by statute or other established law must be disclosed. See,e.g., Utah Code ? 62A-4a-401 et seq. regarding child abuse reportingrequirements, and Utah Code ? 76-5-111.1 regarding vulnerable adult abusereporting requirements.
Finally,subparagraph (f) adds additional protection to assure that a claimed need forinformation to be disclosed is not abused. Once the court determines that theparty seeking disclosure has met the requirements under the balancing test, thecourt is then required to review the information in camera to confirm that therepresented need for the information in fact balances in favor of disclosure.If upon review of the information the court is satisfied that the balancefavors disclosure, the court may make a final determination ordering theinformation be disclosed. This additional protection is not intended toinfringe on the court's general discretionary authority to review evidence incamera whenever it is deemed necessary.