Knight-Ridder Broadcasting, Inc. v. Greenberg, KNIGHT-RIDDER

Decision Date07 July 1987
Docket NumberKNIGHT-RIDDER
Citation518 N.Y.S.2d 595,511 N.E.2d 1116,70 N.Y.2d 151
Parties, 511 N.E.2d 1116, 56 USLW 2048, 14 Media L. Rep. 1299 In the Matter ofBROADCASTING, INC., Appellant, v. Sol GREENBERG, as Albany County District Attorney, Respondent.
CourtNew York Court of Appeals Court of Appeals

Timothy B. Dyk, Murray A. Indick and Michael J. Hoblock, Jr., Washington, D.C., for appellant.

Sol Greenberg, Dist. Atty., pro se (George H. Barber and Michael J. Connolly, Albany, of counsel).

David A. Wait, Ballston Spa, Mark Dwyer and Sherrill R. Spatz, New York City, for the New York State Dist. Attys. Ass'n, amicus curiae.

OPINION OF THE COURT

ALEXANDER, Judge.

The issue presented for our review in this case is whether the Shield Law (Civil Rights Law § 79-h) extends its protection to nonconfidential sources or information obtained in the course of gathering or obtaining news for publication. We hold that it does not.

I

In February 1986, Knight-Ridder's television station in Albany--WTEN-TV--broadcast on its evening newscast portions of an interview with Donald Bent, whose wife had then been missing for several days. The interview had been conducted by a news team led by a reporter employed by the television station. Approximately one minute of the taped interview was broadcast; the remainder of the interview has never been made public. It is not clear at this stage of the litigation what, if any, portions of the interview were conducted under a promise of confidentiality.

After Mrs. Bent was found dead in the trunk of an automobile, the District Attorney began a Grand Jury investigation into the death and Donald Bent became a suspect. In furtherance of the investigation, a subpoena duces tecum was served on WTEN demanding "all video tapes regarding an interview" with Donald Bent. In response to the subpoena, WTEN produced the video tape of the newscast along with the written introduction to the broadcast that had been read from the studio and a list of the "supers" that had appeared during the broadcast. The station declined to produce the nonbroadcast portions of the interview gathered by the news team during the preparation of the report.

Knight-Ridder then moved to quash the subpoena duces tecum, arguing alternatively that New York's Shield Law (Civil Rights Law § 79-h) and the First Amendment to the United States Constitution provided a privilege as to the production of the requested material. Supreme Court, Albany County, granted the motion to quash, relying exclusively on the statutory ground. The Appellate Division reversed, holding that the Shield Law does not protect information not received in confidence, and accordingly remitted the matter to Supreme Court for an in camera inspection of the taped interview with Donald Bent to determine what portions, if any, of such interview were conducted confidentially (119 A.D.2d 68, 505 N.Y.S.2d 368). 1 Subsequently, after we dismissed an appeal taken as of right (68 N.Y.2d 997, 503 N.E.2d 125). the Appellate Division granted leave to appeal to this court on a certified question. 2

II

There can be no doubt that the Legislature in enacting and subsequently amending the Shield Law (Civil Rights Law § 79-h) has expressed a strong desire to safeguard the free channels of news communication (see, Matter of Beach v. Shanley, 62 N.Y.2d 241, 249-251, 476 N.Y.S.2d 765, 465 N.E.2d 304; Oak Beach Inn Corp. v. Babylon Beacon, 62 N.Y.2d 158, 476 N.Y.S.2d 269, 464 N.E.2d 967). In its deliberative process, the Legislature has presumably debated the efficacy of granting broad protection to the press, weighed competing policy considerations, and reached a formulation that in its view serves the best interest of the public. Whatever the view of this court may be as to the wisdom of the scope of the protection afforded by the statute, it may not substitute its view for that decided upon by the Legislature. Because the statute here, as enacted, interpreted and amended, clearly does not extend its protection to nonconfidential sources or information obtained in the course of gathering or obtaining news for publication, the Appellate Division correctly declined to quash the subpoena and the certified question must be answered in the negative.

New York's Shield Law was enacted in 1970 in response, in part, to attempts by the Federal Government to compel the disclosure of confidential information and sought to protect newspersons from contempt charges for failing to disclose such information or its sources that were obtained during the news gathering process (Governor's Mem, 1970 N.Y.Legis.Ann., at 508). In the years that followed, the appellate courts in every judicial department of this State were unanimous in ruling that the statute did not protect nonconfidential information (see, People v. Le Grand, 67 A.D.2d 446, 415 N.Y.S.2d 252 [2d Dept.]; Matter of WBAI-FM v. Proskin, 42 A.D.2d 5, 344 N.Y.S.2d 393 [3d Dept.], affg. 68 Misc.2d 355, 326 N.Y.S.2d 434; People [Fischer] v. Dan, 41 A.D.2d 687, 342 N.Y.S.2d 731 [4th Dept.], appeal dismissed 32 N.Y.2d 764, 344 N.Y.S.2d 955, 298 N.E.2d 118, lv. denied 32 N.Y.2d 613, 347 N.Y.S.2d 1025, 300 N.E.2d 745; People v. Wolf, 39 A.D.2d 864, 333 N.Y.S.2d 299 [1st Dept.], affg. 69 Misc.2d 256, 329 N.Y.S.2d 291). In reaching this conclusion, courts noted that the privilege must be strictly construed as it provides an exception to the fundamental duty of all citizens to disclose information to an authorized governmental body (Matter of WBAI-FM v. Proskin, supra, 42 A.D.2d at 7, 344 N.Y.S.2d 393). Specifically rejected was the contention that since the statute does not explicitly state that the privilege applies only to confidential communications, no requirement of confidentiality exists. Indeed, it was pointed out that in signing the law, Governor Rockefeller cited the " 'real and imminent threat' " of requiring " 'the disclosure of information obtain by reporters in confidence' " ( id., at 6, 344 N.Y.S.2d 393, quoting 1970 N.Y.Legis.Ann., at 508 [emphasis supplied] ). Further, it was recognized that the entire thrust of the Shield Law was aimed at encouraging a free press by shielding those communications given to the news media in confidence (id., at 9, 344 N.Y.S.2d 393 [Cooke, J., dissenting]; Matter of Wolf v. People, supra) and in this regard was similar to other privileges which are generally based on confidential relationships (Matter of WBAI-FM v. Proskin, supra, at 7, 344 N.Y.S.2d 393; Matter of Wolf v. People, supra; see also, Matter of Andrews v. Andreoli, 92 Misc.2d 410, 416-421, 400 N.Y.S.2d 442).

In 1981, the Legislature sought to amend the statute to strengthen its protection for newspersons. 3 Among the provisions proposed was that the protection afforded by the law should apply whether or not the information was imparted under a cloak of confidentiality. Other proposed amendments sought to broaden the definition of the terms "professional journalist" and "news", and sought to ensure that newspersons could not be held in contempt even if the material or the identity of the material's source was highly relevant to a particular governmental inquiry and the information was not solicited by the newsperson before its disclosure to him. Although these latter proposals were included in the legislation that was approved by the Legislature and signed by the Governor, of significance here is that the proposal seeking to eliminate the confidentiality requirement, among other proposals, was deleted from the version of the bill that was ultimately approved.

After the passage of the 1981 amendments, the question whether the statute's protection extended to nonconfidential information was again litigated and again, the unanimous appellate authority in this State concluded that the cloak of confidentiality requirement still obtained (see, People v. Korkala, 99 A.D.2d 161, 472 N.Y.S.2d 310 [1st Dept.]; Hennigan v. Buffalo Courier Express Co., 85 A.D.2d 924, 446 N.Y.S.2d 767 [4th Dept]; see also, Matter of Pennzoil Co., 108 A.D.2d 666, 446 N.Y.S.2d 767; People v. Troiano, 127 Misc.2d 738, 486 N.Y.S.2d 991; First United Fund v. American Banker, 127 Misc.2d 247, 485 N.Y.S.2d 489; People v. Bova, 118 Misc.2d 14, 460 N.Y.S.2d 230; contra, Wilkins v. Kalla, 118 Misc.2d 34, 459 N.Y.S.2d 985; People v. Iannaccone, 112 Misc.2d 1057, 447 N.Y.S.2d 996). In Korkala, the First Department noted that, in 1981 "the very provision contained in the initial version of the bill that would have eliminated the 'cloak of confidentiality' requirement for invoking the Shield Law was deleted from the version finally passed" and concluded that such development "persuasively suggests that the Legislature's intent * * * was not to create an 'absolute privilege' against disclosure" (99 A.D.2d 161, 165, 166, 472 N.Y.S.2d 310, supra ).

It is well settled that the legislative history of a particular enactment must be reviewed in light of the existing decisional law which the Legislature is presumed to be familiar with and to the extent it left it unchanged, that it accepted (Arbegast v. Board of Educ., 65 N.Y.2d 161, 169, 490 N.Y.S.2d 751, 480 N.E.2d 365; Hammelburger v. Foursome Inn Corp., 54 N.Y.2d 580, 588, 446 N.Y.S.2d 917, 431 N.E.2d 278; Engle v. Talarico, 33 N.Y.2d 237, 242, 351 N.Y.S.2d 677, 306 N.E.2d 796). Where the interpretation of a statute is well settled and accepted across the State, it is as much a part of the enactment as if incorporated into the language of the act itself (Pouch v. Prudential Ins. Co., 204 N.Y. 281, 287, 97 N.E. 731; see, McKinney's Cons.Laws of N.Y., Book 1, Statutes § 72). Consequently, any intention to change such a well-established rule must emanate from the Legislature and may not be imputed to the Legislature in the absence of a clear manifestation of such intent (Hammelburger v. Foursome Inn Corp., supra, 54 N.Y.2d at 592, 446 N.Y.S.2d 917, 431 N.E.2d 278, citing Matter of Delmar Box Co. [Aetna Ins. Co.], 309 N.Y. 60, 66, 127 N.E.2d 808)....

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