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Rule 509. ?News Reporters.

 

(a)       Definitions.

(a)(1)   "News reporter" means apublisher, editor, reporter or other similar person gathering information forthe primary purpose of disseminating news to the public and any newspaper,magazine, or other periodical publication, press association or wire service,radio station, television station, satellite broadcast, cable system or otherorganization with whom that person is connected.

 

(a)(2)   "Confidential sourceinformation" 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.

 

(a)(3)   "Confidential unpublished newsinformation" means information, other than confidential sourceinformation, that is gathered by a news reporter on condition ofconfidentiality.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.

 

(a)(4)   "Other unpublished newsinformation" means information, other than confidential unpublished newsinformation, that is gathered by a news reporter. This includes notes,outtakes, photographs, tapes or other data that are maintained by the newsreporter or by the organization or entity on whose behalf the reporter wasacting.

 

(b)      Statement of the Privilege for Confidential Source Information. A news reporter or confidential source has a privilege torefuse to disclose ? and to prevent any other person from disclosing ?confidential source information, unless the person seeking the informationdemonstrates by clear and convincing evidence that disclosure is necessary toprevent substantial injury or death.

 

(c)      Statement of the Privilege for Confidential Unpublished News Information. A news reporter has a privilege to refuse to discloseconfidential unpublished news information, unless the person seeking theinformation demonstrates a need for that information that substantiallyoutweighs the interest of a continued free flow of information to newsreporters.

 

(d)      Statement of the Privilege for Other Unpublished News Information. A news reporter has a privilege to refuse to discloseother unpublished news information if the person claiming the privilegedemonstrates that the interest of a continued free flowof information to news reporters outweighs the need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 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

 

 

2011 Advisory Committee Note. ?The language of this rule has been amended as part of therestyling of the Evidence Rules to make them more easily understood and to makestyle and terminology consistent throughout the rules. These changes areintended to be stylistic only. There is no intent to change any result in anyruling on evidence admissibility.

 

Original Advisory Committee Note. Protection of news gathering and dissemination hasroots in the First Amendment of the United States Constitution. See Branzburg v. Hayes, 408 U.S.665 (1972); Redding v. Jacobsen, 639 P.2d 503 (Utah 1981). Since Branzburg, there has been an increasingbut somewhat inconsistent development of the law concerning this privilege.Indeed, the extent of a federally-recognized privilege remains unclear. Manystates have addressed the subject with legislation such that there issubstantial variation in how the privilege may operate in differentjurisdictions. The committee proposed this rule to address any uncertainty thatmay exist under Utah law and to provide for uniformity in the recognition ofthe privilege by Utah courts.

 

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 Silkwood v. KerrMcGee Corp., 563 F. 2d 433 (10th Cir.1977); Bottomly v. Leucadia National Corp., 24Media 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 PublicLaw 163 (2003).

 

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 Silkwood, and other relevantcriteria the court may consider, the need for the information "substantially"outweighs the interests of society in protecting the information fromdisclosure. See Subparagraph (c). For other unpublished news information,however, the person claiming the privilege must demonstrate that the need toencourage the free flow of information outweighs the need for disclosure. SeeSubparagraph (d).

 

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.