Clampitt v. Thurston County, 47860-1

• Decision Date: 03 February 1983
• Docket Number: No. 47860-1,47860-1
• Citation: 98 Wn.2d 638,658 P.2d 641
• Parties: , 9 Media L. Rep. 1206 Delbert CLAMPITT and Delsie Clampitt, husband and wife, Respondents, v. THURSTON COUNTY, Defendant, David L. Hendrick, Petitioner.
• Court: Washington Supreme Court

Page 638

98 Wn.2d 638

658 P.2d 641, 9 Media L. Rep. 1206

Delbert CLAMPITT and Delsie Clampitt, husband and wife, Respondents, v. THURSTON COUNTY, Defendant David L. Hendrick, Petitioner.

No. 47860-1.

Supreme Court of Washington En Banc.

Feb. 3, 1983.

Richard A. Strophy, Chief Crim. Deputy Pros. Atty., Olympia, for defendant.

Clifford L. Stilz, Atty. at Law, Olympia, for petitioner.

Davies, Pearson & Anderson, Richard H. Benedetti, Tacoma, for respondents.

UTTER, Justice.

This case requires application and explication of our holding in Senear v. Daily Journal-American, 97 Wash.2d 148, 641 P.2d 1180 (1982) that a reporter has a qualified privilege against disclosure of the identity of a confidential source. The lower court issued an order compelling petitioner David Hendrick, a reporter for The Daily Olympian, to identify such a source. Petitioner sought discretionary review by this court which we granted. We vacate the trial court's order and remand for further proceedings on the ground that there was not a sufficient showing to defeat petitioner's privilege.

In 1979, Delbert and Delsie Clampitt (respondents herein) applied for a permit to build a pier in Thurston County (the County). Acting pursuant to the State Environmental Policy Act of 1971 (RCW 43.21C.010 et seq.), the Thurston County Regional Planning Council (Council) concluded that an environmental impact statement would be necessary and issued a declaration of significance. On August 29, 1979, County Commissioner Woody Anderson contacted Don Chance, the official who had reviewed the Clampitt proposal, and requested a meeting to discuss the Council's decision. The two men did meet and at their meeting Anderson criticized the decision, emphasizing the Clampitts' power and wealth and the consequent harm they could do to the County. After Chance described the meeting to his superior, Art O'Neal, O'Neal requested that Chance prepare a memo recounting the conversation and Anderson's comments. Chance did so.

At some later time, an unidentified person informed petitioner of the existence of the Chance memorandum. Pursuant to the public records act (RCW 42.17.010 et seq.), petitioner requested the memorandum from the Council. After consulting with its attorney, the Council provided petitioner with a copy. On February 26, 1980, petitioner published an article in The Daily Olympian describing the Chance-Anderson meeting and detailing some of the memorandum's contents.

In response to publication of this article, respondents brought an action against Thurston County for outrage. ¹ The action did not name petitioner or The Daily Olympian as a defendant but was premised on the County's disclosure to petitioner of the Chance memorandum. On March 10, 1981, respondents deposed petitioner and at that deposition requested that he disclose the identity of the source who had told him of the memorandum. Petitioner refused to answer, claiming reporter's privilege. Respondents then moved to compel him to answer.

Though the underlying action had been brought in Lewis County, the motion to compel was made in Thurston County since that was the county in which petitioner's deposition had been taken. See CR 37(a). The Thurston County court recognized that, under Senear v. Daily Journal-American, supra, there is a qualified reporter's privilege in Washington but ruled that respondents had made a showing sufficient to defeat the privilege. ² Specifically, the lower court found that (1) "the pleadings ... set forth a claim for the tort of outrage"; (2) the identity of petitioner's source was "fundamental" to respondents' claim; and (3) the respondents had made sufficient unsuccessful attempts to independently obtain the identity of petitioner's source and that the information was not otherwise available. The Thurston County court also found that petitioner believed that his source furnished the information only upon an understanding that his or her identity would be preserved.

The issue now facing us is whether the lower court was correct in its ruling that respondents had made a sufficient showing to defeat petitioner's privilege.

I

Until recently, the existence of a reporter's privilege against compulsory disclosure of confidential news sources was unsettled in this state. Last year, however, this court held that, at least in civil cases, reporters in Washington do have a common law privilege against such disclosure. See Senear, 97 Wash.2d at 155, 641 P.2d 1180. A right to claim the privilege arises, however, only if "the interest of the reporter in nondisclosure is supported by a need to preserve confidentiality." Senear, at 156, 641 P.2d 1180. This question in turn depends upon how the reporter received the information and whether the source had a reasonable expectation of confidentiality. Senear, at 156, 641 P.2d 1180.

Because this court's decision in Senear issued after the order at issue here and the decision of the Court of Appeals omitted this threshold requirement, the lower court did not expressly address the question. The court did find, however, that petitioner believed that his source furnished information only upon an understanding that his or her identity would be preserved. When the reporter (or his employer) is not a party to the underlying action, such a good-faith belief is quite reliable because he or she has no interest in the action. Compare Zerilli v. Smith, 656 F.2d 705, 714 (D.C.Cir.1981). Such a belief is thus sufficient to give rise to a privilege, at least when the reporter is a disinterested nonparty. The only person who could provide contrary evidence of the source's expectation would be the source himself and his testimony is clearly unavailable in these circumstances.

II

Even where a right to claim the privilege exists it is not absolute. The party seeking discovery may defeat the privilege by showing that (1) his or her claim is meritorious; (2) the information sought is critical to that claim; and (3) he or she has made a reasonable effort to obtain the information by other means. Senear, 97 Wash.2d at 155, 641 P.2d 1180. If these three conditions are satisfied, the reporter's privilege must give way to the interest of the individual litigant seeking discovery as well as that of the public, in disclosure. Senear, at 155, 641 P.2d 1180.

In applying this test, however, which is essentially one of balancing (see Senear, at 157, 641 P.2d 1180), our courts must recall that "compelling interests" are at stake on both sides of the scale. Senear, at 154, 641 P.2d 1180. The sacrifice of either, even when necessary, should be viewed as an egregious loss. Thus, the courts should do their utmost to avoid the need for reporter disclosure, ordering it only as a last resort. Riley v. City of Chester, 612 F.2d 708, 718 (3d Cir.1979); Carey v. Hume, 492 F.2d 631, 638 (D.C.Cir.), cert. dismissed, 417 U.S. 938, 94 S.Ct. 2654, 41 L.Ed.2d 661 (1974). ³ In some instances, this may require deferral of discovery until the court is absolutely convinced that the three conditions necessary to overcome the privilege are satisfied. Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 598 (1st Cir.1980); cf. Herbert v. Lando, 441 U.S. 153, 180 n. 4, 99 S.Ct. 1635, 1640 n. 4, 60 L.Ed.2d 115 (1979) (Powell, J., concurring) (discovery of editorial process).

In addition, while the nature of the Senear standards remains constant, the stringency with which they are applied varies with the reporter's relationship to the underlying action. At one extreme, reporters who are themselves plaintiffs have little or no privilege. See, e.g., Anderson v. Nixon, 444 F.Supp. 1195, 1199 (D.D.C.1978). ⁴ Reporters who are defendants and reporters who are not involved in the action at all, on the other hand, are significantly protected by Senear. Of these two categories, moreover, reporters who are not parties (and whose employers are not parties) receive still greater protection.

A distinction can also be drawn between civil cases in which the reporter is a party, as in a libel action, and cases in which the reporter is not a party. When the journalist is a party, and successful assertion of the privilege will effectively shield him from liability, the equities weigh somewhat more heavily in favor of disclosure.

Zerilli v. Smith, supra at 714; Riley v. City of Chester, supra at 716; Democratic Nat'l Comm. v. McCord, 356 F.Supp. 1394, 1397 (D.D.C.1973). Thus, the Senear standards should be applied even more stringently in the present case than in Senear itself, since there the newspaper claiming the privilege was a libel defendant ( Senear, 97 Wash.2d at 150, 641 P.2d 1180).

Viewed in light of these considerations, there was not a sufficient showing in the instant case that respondents satisfied the conditions necessary to defeat petitioner's privilege. While preliminary factual findings regarding assertion of the reporter's privilege should be upheld absent an abuse of discretion (see Carey v. Hume, supra at 639), the magnitude of the interests involved requires close appellate supervision of that discretion (see, e.g., Riley v. City of Chester, supra at 717-18). We believe it was abused here.

In particular, the record does not support the trial court's finding that respondents had exhausted reasonably available alternative sources. While there are limits to this obligation, it is "very substantial". Zerilli v. Smith, supra at 714. Federal cases have indicated that taking as many as 60 depositions might be a reasonable alternative. See Zerilli, at 714; Carey v. Hume, supra at 639.

In the present case, the record does not indicate what alternatives the trial court considered and its reasons for rejecting them. It merely stated that respondents had shown that "independent attempts have been made to secure this information elsewhere with no success and that the information is not otherwise available." Beyond this general conclusion it did not go. This is...