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

• Decision Date: 31 July 1986
• Docket Number: KNIGHT-RIDDER
• Citation: 119 A.D.2d 68,505 N.Y.S.2d 368
• Parties: , 13 Media L. Rep. 1140 In the Matter ofBROADCASTING, INC., Respondent, v. Sol GREENBERG, as Albany County District Attorney, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 368

505 N.Y.S.2d 368

119 A.D.2d 68, 13 Media L. Rep. 1140

In the Matter of KNIGHT-RIDDER BROADCASTING, INC., Respondent, v. Sol GREENBERG, as Albany County District Attorney, Appellant.

Supreme Court, Appellate Division,

Third Department.

July 31, 1986.

Sol Greenberg, Dist. Atty. (George H. Barber, of counsel), Albany, appellant in person.

Zubres, D'Agostino & Hoblock (Michael J. Hoblock, Jr., of counsel), Albany and Wilmer, Cutler & Pickering (Timothy B. Dyk and Murray A. Indick, of counsel), Washington, D.C., for respondent.

Howard F. Jaeckel and John W. Zucker, New York City, and others, for CBS, Inc. and others, amici curiae.

Before MAIN, J.P., and WEISS, MIKOLL, YESAWICH and LEVINE, JJ.

MAIN, Justice Presiding.

APPEAL from an order of the Supreme Court (LAWRENCE E. KAHN, J.), entered March 31, 1986 in Albany County, which granted petitioner's motion pursuant to CPLR 2304 to quash a subpoena duces tecum.

In February 1986, a news reporter employed by petitioner's Albany television station, WTEN-TV, conducted a taped interview of Donald Bent, whose wife had then been missing for several days. While there were no preconditions to the interview, it is alleged that a portion thereof was conducted under a promise of confidentiality. Approximately one minute of such taped interview was later broadcast on the station's newscast. The remainder of the interview has never been broadcast.

After Joan Bent, Donald Bent's wife, was found dead in the trunk of an automobile, Mr. Bent became a suspect in the ensuing homicide investigation. On March 6, 1986, WTEN was served with a subpoena duces tecum which demanded the production to an Albany County Grand Jury of "all video tapes regarding" the station's interview of Mr. Bent. WTEN complied with the subpoena only insofar as it delivered that portion of the taped interview which had actually been broadcast, along with the written introduction to the broadcast that had been read from WTEN's studio and a list of the "supers" that had appeared during the news story's broadcast. The station refused to produce the portions of the taped interview that had not been broadcast and the reporter's notes. Asserti that this material was protected from disclosure by New York's Shield Law (Civil Rights Law § 79-h) and the U.S. Constitution, 1st Amendment, petitioner moved to quash the subpoena. Agreeing that the Shield Law protected such material, Supreme Court granted the motion to quash, whereupon respondent took this appeal.

We initially address respondent's threshold argument that, pursuant to the Shield Law, contempt proceedings must actually be initiated before a newscaster can invoke the protection afforded by that statute. The Court of Appeals, in Matter of Beach v. Shanley, 62 N.Y.2d 241, 476 N.Y.S.2d 765, 465 N.E.2d 304, rejected this very argument (id., at 247-249, 476 N.Y.S.2d 765, 465 N.E.2d 304) and, upon that authority, we summarily reject the argument in the instant case.

We turn, then, to the central issue before us, which may be framed as follows: Does the Shield Law protect from disclosure only that news material which has been imparted to a newscaster under a cloak of confidentiality or, rather, all news material, whether confidential or not? We begin our analysis of this issue with an examination of the history of the Shield Law. Enacted into law by the Legislature in 1970 (L.1970, ch. 615), the Shield Law was judicially interpreted as guarding from disclosure only that news material which was received under a cloak of confidentiality (see, e.g., People v. Le Grand, 67 A.D.2d 446, 451-452, 415 N.Y.S.2d 252; Matter of WBAI-FM v. Proskin, 42 A.D.2d 5, 6-7, 344 N.Y.S.2d 393). Where the information had not been received in confidence, however, no privilege attached.

The Shield Law was amended in 1981 (L.1981, ch. 468). One purpose of the amendment was to fill "gaps and loopholes not perceived and not intended in the original legislation " (emphasis in original) which had "allowed the courts to pierce the Shield Law time after time, leaving it in a state of legal impotency" (Memorandum of Assemblyman Steven Sanders, 1981 N.Y.Legis.Ann., at 257). An initial version of the bill amending the Shield Law explicitly eliminated the confidentiality requirement, but that provision was deleted from the version that was ultimately passed by the Legislature.

Following the effective date of the 1981 amendment, divergent views were expressed on the question of whether the confidentiality requirement had indeed been eliminated by virtue of the amendment. Some courts have opined that the confidentiality requirement still exists, unaffected by the 1981 changes to the Shield Law, and have applied such requirement (see, e.g., Matter of Pennzoil Co., 108 A.D.2d 666, 485 N.Y.S.2d 533; People v. Korkala, 99 A.D.2d 161, 472 N.Y.S.2d 310; Hennigan v. Buffalo Courier Express Co., 85 A.D.2d 924, 446 N.Y.S.2d 767), ¹ while others expressed the view that the amendment abolished the confidentiality requirement and created an absolute privilege for journalists (see, e.g., Wilkins v. Kalla, 118 Misc.2d 34, 36-37, 459 N.Y.S.2d 985).

We, for basically the same reasons as those expressed by the First Department in People v. Korkala (supra ), now take the position that the 1981 amendment to the Shield Law did not eliminate the requirement of confidentiality, as respondent argues. There is absolutely no language in the 1981 amendment that persuades us otherwise, and it is, to our minds, significant that the very language which would have unquestionably abolished such requirement was deleted from the proposed legislation before it was passed and signed...