Bauer v. Gannett Co., Inc. (Kare 11)

• Decision Date: 14 January 1997
• Docket Number: No. C9-96-1694,C9-96-1694
• Citation: Bauer v. Gannett Co., Inc. (Kare 11), 557 N.W.2d 608 (Minn. App. 1997)
• Parties: 25 Media L. Rep. 1532 Robert BAUER, Respondent, v. GANNETT CO., INC. (KARE 11), et al., Appellants, Margaret Bichsel, et al., Defendants.
• Court: Minnesota Court of Appeals

Page 608

557 N.W.2d 608

25 Media L. Rep. 1532

Robert BAUER, Respondent, v.GANNETT CO., INC. (KARE 11), et al., AppellantsMargaret Bichsel, et al., Defendants.

No. C9-96-1694.

Court of Appeals of Minnesota.

Jan. 14, 1997.

Syllabus by the Court

The Minnesota Free Flow of Information Act, Minn.Stat. § 595.021-.025(1994), as interpreted in light of the media's qualified constitutional privilege, requires the district court to consider multiple factors before compelling disclosure of a reporter's confidential source or information leading to the source.

Dorothy J. Buhr, Sisam & Associates, P.A., Minneapolis, for Respondent.

Thomas Tinkham, Edward B. Magarian, Leslie J. Anderson, Dorsey & Whitney LLP, Minneapolis, for Appellants.

John P. Borger, Eric E. Jorstad, Faegre & Benson LLP, Minneapolis, for amici curiae.

Considered and decided by LANSING, P.J., TOUSSAINT, C.J., and HUSPENI, J.

OPINION

LANSING, Judge.

A reporter and media organization, defendants in a defamation action brought by a public official, appeal from a discovery order requiring them to disclose the identities of confidential sources interviewed for an investigative report.Because we conclude that the district court did not address all of the factors relevant to a disclosure order, we reverse and remand.

FACTS

KARE 11 aired an investigative report on the administration and management of the Ramsey County Special Courts and the courts' administrator, Robert Bauer, in November 1994.The segment was researched and reported by Gail Plewacki and was critical of the courts and Bauer.It included, for example, video footage of Bauer repeatedly leaving his work area to take smoking breaks and also showed him golfing during hours that he would normally be scheduled to work.Over the images Plewacki says, "[T]his is what Bauer does for an average of five hours a week.That would mean more than eight thousand dollars, in taxpayer money, * * * going up in smoke every year."

Bauer brought a defamation action against KARE 11 and some of the identified sources in the report.It is undisputed that Bauer, as court administrator, was a public official and needs to prove actual malice to prevail in his defamation action.SeeNew York Times Co. v. Sullivan, 376 U.S. 254, 279, 84 S.Ct. 710, 726, 11 L.Ed.2d 686(1964).

In a deposition Plewacki was asked who told her what Bauer's schedule and work hours were.Plewacki refused to answer the questions, asserting privilege under the Minnesota reporters' shield law and the First Amendment.

Bauer then moved to compel disclosure of the confidential source.Specifically, the two questions before the district court on the motion to compel were: (1) Who told you what time Mr. Bauer's work hours were? and (2) Is the person who disclosed Mr. Bauer's work hours someone other than Dawn Palmer, Margaret Bichsel, Judy Dicks, Michelle Barrette, or Alf Sivertson?

The district court granted the motion, but broadened it by ruling that all of Plewacki's confidential sources were subject to disclosure, not just the source of the work hours information.KARE 11 appeals.

ISSUE

In a defamation action against a news organization, when must the media's qualified constitutional privilege codified at Minn.Stat. § 595.021-.025(1994) yield to allow disclosure of a reporter's confidential source?

ANALYSIS

This appeal points up the tension between two equally fundamental principles: the freedom and independence of the press, and the right to protect and vindicate one's reputation.

The First Amendment protects the fundamental value of a free and independent press.The protection afforded the press includes a reporter's limited right not to disclose his or her confidential sources.See, e.g., Miller v. Transamerican Press, 621 F.2d 721, 725(5th Cir.)(Miller I ), modified, 628 F.2d 932(5th Cir.1980)(Miller II ), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 238(1981);J.J.C. v. Fridell, 165 F.R.D. 513, 516(D.Minn.1995);PPM Am., Inc. v. Marriott Corp., 152 F.R.D. 32, 35(S.D.N.Y.1993);23 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure, § 5426 at 716(1980);William Penner, Note, Cohen v. Cowles Media Co.: Upsetting the First Amendment Scales, 26 U.S.F. L.Rev. 753, 758-63(1992).The Minnesota Supreme Court recently analyzed the qualified constitutional privilege afforded reporters.State v. Turner, 550 N.W.2d 622, 629(Minn.1996)(holding that constitutional privilege requires in camera review of journalist's unpublished photos before disclosure compelled).The protections of the reporter's privilege are the same under the Minnesota and federal constitutions.Id. at 628.

The media's qualified constitutional privilege is rooted in the desire to promote effective newsgathering and to preserve the free flow of public information.News reporters frequently rely on informants to gather news, and the offer of confidentiality is often a prerequisite to an informant's cooperation.Compelling a reporter to disclose the identity of a confidential source may significantly interfere with the press's ability to gather news.SeeMinn.Stat. § 595.022(1994);Zerilli v. Smith, 656 F.2d 705, 710-11(D.C.Cir.1981);Miller I, 621 F.2d at 725;Cervantes v. Time, Inc., 464 F.2d 986, 992 n. 9(8th Cir.1972), cert. denied, 409 U.S. 1125, 93 S.Ct. 939, 35 L.Ed.2d 257(1973);John B. Kuhns, Note, Reporters and Their Sources: The Constitutional Right to a Confidential Relationship, 80 YaleL.J. 317, 329-34(1970).When the media are reporting a matter of public concern the interest in fostering effective newsgathering is particularly strong.Miller I, 621 F.2d at 726.The activities of public figures are matters of public concern.Id. at 725-26.

Also of great importance to a just and fair society is the right of individuals to protect and defend their reputations.The tort of defamation as well as the constitutional protection afforded individuals to control the use and dissemination of personal information both reflect the value of reputation.SeeHerbert v. Lando441 U.S. 153, 169, 99 S.Ct. 1635, 1645, 60 L.Ed.2d 115(1979)("[T]he individual's interest in his reputation is * * * a basic concern.");Lawrence H. Tribe, American Constitutional Law§§ 12-12(defamation), 15-16 (personal information)(2d ed. 1988).Basic as well is the judicial interest in obtaining the truth through full disclosure of relevant evidence and testimony."The concept that it is the duty of a witness to testify in a court of law has roots fully as deep in our history as does the guarantee of a free press."Garland v. Torre, 259 F.2d 545, 548(2d Cir.), cert. denied, 358 U.S. 910, 79 S.Ct. 237, 3 L.Ed.2d 231(1958).

The Minnesota Free Flow of Information Act, Minn.Stat. § 595.021-.025(1994), like the reporter's qualified constitutional privilege, seeks to mediate the tension between these competing values.The stated purpose of the Act reads:

In order to protect the public interest and the free flow of information, the news media should have the benefit of a substantial privilege not to reveal sources of information or to disclose unpublished information.To this end, the freedom of the press requires protection of the confidential relationship between the news gatherer and the source of information.The purpose of sections 595.021 to 595.025 is to insure and perpetuate, consistent with the public interest, the confidential relationship between the news media and [their] sources.

Minn.Stat. § 595.022.

The Act was passed in 1973, one year after the United States Supreme Court's decision in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626(1972), which refused to excuse news reporters from the obligation to appear and testify before federal and state grand juries.The Act provides general protection to reporters from compelled disclosure of their sources: "No [reporter] shall be required by any court * * * to disclose in any proceeding the person or means from or through which information was obtained * * * ."Minn.Stat. § 595.023.But an exception is made if clear and convincing evidence shows that (1) there is probable cause to believe that the source has clearly relevant information, (2) the information is not available through any alternative means, and (3) a compelling interest requires disclosure to prevent injustice.SeeMinn.Stat. § 595.024, subd. 2.This court and the Minnesota Supreme Court have held that the protections of the Act apply only to confidential sources and information leading to their identity.Turner, 550 N.W.2d at 631;State v. Knutson (Knutson II), 539 N.W.2d 254, 257(Minn.App.1995);Heaslip v. Freeman, 511 N.W.2d 21, 23-24(Minn.App.1994), review denied (Minn. Feb. 24, 1994).

The statute includes a specific section covering cases which allege defamation:

Subdivision 1.Disclosure; application.The prohibition of disclosure provided in section 595.023 shall not apply in any defamation action where the person seeking disclosure can demonstrate that the identity of the source will lead to relevant evidence on the issue of actual malice.

Subdivision 2.Disclosure allowed; conditions.Notwithstanding the provisions of subdivision 1, the identity of the source of information shall not be ordered disclosed unless the following conditions are met:

(a) that there is probable cause to believe that the source has information clearly relevant to the issue of defamation;

(b) that the information cannot be obtained by any alternative means or remedy less destructive of first amendment rights.

Minn.Stat. § 595.025.

The Minnesota appellate courts have not yet considered the extent to which the requirements of the Minnesota Free Flow of Information Act comport with constitutional standards.We must construe statutes so as to uphold their constitutionality if possible.Minnesota Higher Educ. Facilities Auth. v. Hawk, 305 Minn. 97, 103, 232 N.W.2d 106, 110(1975);State v. Minnesota Fed. Sav. &...