In re Paul

• Citation: 513 S.E.2d 219,270 Ga. 680
• Decision Date: 08 March 1999
• Docket Number: No. S99A0626., No. S98A2001
• Parties: In re Keith PAUL.
• Court: Supreme Court of Georgia

513 S.E.2d 219

270 Ga. 680

In re Keith PAUL.

Nos. S98A2001, S99A0626.

Supreme Court of Georgia.

March 8, 1999.

Reconsideration Denied March 18, 1999.

James B. Ellington, Nancy Shannon Gentry, Hull, Towill, Norman & Barrett, Augusta, for Keith Paul.

Spencer Lawton, Jr., District Attorney, Christine S. Barker, Assistant District Attorney, Richard M. Darden, Darden & Moyers, Savannah, for the State.

Peter Crane Canfield, Sean Richard Smith, Thomas M. Clyde, Dow, Lohnes & Albertson, Atlanta, for amicus curiae.

FLETCHER, Presiding Justice.

Keith Paul, a reporter for the Savannah Morning News, wrote a newspaper article reporting on a jailhouse interview with Arthur Hill who was under arrest for the murder of Annie Geohaghan. As a result, the state subpoenaed Paul seeking unpublished information about the interview, but Paul asserted the reporter's privilege under OCGA § 24-9-30. Ruling that the qualified privilege did not apply, the trial court ordered Paul to answer most of the parties' questions. Because the state has not shown that Paul waived the privilege or that the information sought is material, necessary, and unobtainable by other means, we hold that the state shield law protects him from disclosing his confidential sources and unpublished information. Therefore, we reverse.

In a pre-trial motion, Hill moved to suppress all statements that he made to law enforcement officers in the Hogansville and Savannah police departments. The state issued a subpoena seeking all Paul's notes, tapes, and other information relating to his interview of Hill. Paul moved to quash the subpoena. The trial court requested that the state and Paul enter stipulations on his role in interviewing the defendant. In response, Paul filed a stipulation that he went to the county jail and asked to meet with Hill, provided a picture identification as requested, interviewed Hill alone in the area set aside for visitors, is unaware of anyone reading Hill his Miranda rights, and retained no notes or tapes from his interview. The state refused to agree to the stipulation because it failed to address the voluntariness of Hill's interview with the reporter.

The trial court then ordered both the state and Hill to submit interrogatories to Paul. The state submitted 58 interrogatories and Hill issued 35 seeking confidential sources and unpublished information. Paul objected to most of the interrogatories on the grounds that the information sought was privileged and protected from disclosure under the state shield law. The state argued that all its questions were relevant to determine whether the reporter was acting as a state agent and, therefore, whether the defendant's statement to the reporter was voluntary.

The trial court found that Hill's statements to Paul constituted a confession that was obtained after Hill had an attorney appointed to represent him. The court further found that the interrogatories were material to the issue of whether the statements could be used in the trial, the information could not be obtained by any other means, and the information was necessary to both parties to properly present their case. As a result, the trial court granted the state's motion to compel and ordered Paul to answer 26 of the state's interrogatories and 21 of the defendant's interrogatories.

Paul filed a direct appeal and an application for an interlocutory appeal in this Court and the Court of Appeals of Georgia. We transferred his application to the court of appeals, but granted the writ of certiorari from its denial of the application. We consolidated that case with the direct appeal already pending here to consider the issues of appellate jurisdiction and the state shield law.

DIRECT APPEAL OF DISCLOSURE ORDER

In 1990, the Georgia General Assembly enacted OCGA § 24-9-30 granting a qualified privilege against compelled disclosure of information to persons who gather and disseminate news.¹ The rationale for the privilege is that "compelling disclosure of unpublished material or confidential sources chills the free flow of information to the public."² News stories based on confidential sources and information enable citizens to make more informed decisions about the conduct of government and its respect for individual rights; at times the stories have aided the investigation and prosecution of organized crime and government corruption.³ Because of these important interests, a majority of states have adopted a statutory shield law, and another 18 states recognize a reporter's privilege based on constitutional or common law.⁴

Since Georgia's shield law was enacted, our state appellate courts have considered three times whether the qualified privilege in OCGA § 24-9-30 applies to information sought from a news reporter in a criminal case.⁵ In each case, the trial court refused to require the reporter's testimony, and the defendant raised the issue as part of his direct appeal of his conviction. Thus, we have never addressed the appropriate procedure for appealing an order compelling the reporter to disclose sources or information.

OCGA § 5-6-34 provides for a direct appeal of all final judgments "where the case is no longer pending in the court below." Besides final judgments, the statute provides for the direct appeal of judgments or orders that may have an irreparable effect on the rights of parties, such as rulings in contempt, injunction, and mandamus actions.⁶ In addition, this Court has held that parties may file a direct appeal of a "collateral order," despite the absence of a final judgment terminating the underlying action.⁷ A direct appeal is allowed in this limited situation because the issue is substantially separate from the basic issues presented in the complaint, an important right may be lost if review had to await final judgment, and nothing further in the underlying action can affect the issue on appeal.⁸

Because of the collateral nature of the reporter's privilege issue in most cases, we conclude that reporters who are not parties in the underlying action should not have to wait until the case is concluded before appealing an order that requires them to disclose information. The disclosure order typically is a final decision concerning the news reporter. In this case, for example, the order rejecting the privilege claim and compelling Paul to answer the interrogatories is a final order concerning him as a non-party, unlike the usual discovery order. Moreover, the issue of whether a reporter should be compelled to reveal information is separate from the principal issue in a criminal trial of whether the accused is guilty of the crime charged in the indictment. Furthermore, the public interest in a free press would be irreparably harmed if review of the order compelling disclosure had to await a jury verdict in the murder case. Either the reporter would have already revealed the information or been imprisoned for failing to obey the disclosure order. Therefore, we hold that non-parties engaged in news gathering may file a direct appeal of an order denying them the statutory reporter's privilege under the collateral order exception to the final judgment rule.⁹

Whether this Court or the court of appeals is the proper court to hear the direct appeal depends on the nature of the underlying action. Since this appeal arises from a collateral order in a murder case, this Court has jurisdiction to decide the issue.¹⁰

ANALYSIS OF HILL'S ADMISSION OF GUILT

Whether Hill's incriminating statements to Paul are admissible arose at the Jackson-Denno¹¹ hearing on the defendant's motion to suppress all statements made to law enforcement officers. The trial court found that Hill's statements to reporter Paul "constitute a confession of guilt to the crime of murder" and were obtained after Hill was appointed counsel. On appeal, we accept the trial court's factual findings that are undisputed, but independently apply the legal principles to the facts.

Under this standard of review, we conclude that Hill's incriminating statements during the interview with Paul were not a confession that required the trial court to decide whether it was voluntary under Jackson-Denno or made after the defendant was advised of his Miranda¹² rights. The undisputed evidence shows that Paul was acting solely in his capacity as a reporter for the Savannah Morning News when he interviewed Hill. The reporter did not become a state agent simply by questioning Hill in the jail¹³ nor did he obtain Hill's incriminating statements as part of a custodial interrogation.¹⁴ Despite this flaw in the trial court's analysis, however, we still must decide whether the state has shown that the reporter's privilege does not apply to the information it seeks.

GEORGIA'S SHIELD LAW

Prior to 1990, there was no qualified reporter's privilege in this state. In Vaughn v. State,¹⁵ we held that state constitutional right to a free press did not protect a reporter from disclosing the identity of a confidential source. In Howard v. Savannah College of Art and Design,¹⁶ we held that a reporter did not have a qualified privilege under state law to refuse to answer questions during a deposition in a civil case. In response, the Georgia General Assembly enacted OCGA § 24-9-30.¹⁷

The state shield law provides a qualified privilege for persons engaged in the gathering and dissemination of news. It protects against the "disclosure of any information, document, or item obtained or prepared in the gathering or dissemination of news." Thus, the statutory language does not distinguish between the source's identity and information received from that source or between non-confidential and confidential information.¹⁸ The privilege applies in both civil and criminal proceedings, but only where the journalist is not a party. To overcome the privilege, the party seeking the information must show that the privilege is either waived or that the information meets a...