HOUSE OF REPRESENTATIVES 622TWENTY-SEVENTH LEGISLATURE, 2013STATE OF HAWAII H.B. NO H.D. 1 S.D. 1 A BILL FOR AN ACTRELATING TO EVIDENCE.BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII: SECTION 1. The legislature finds that the United StatesSupreme Court held in Branzburg v. Hayes, 408 U.S. 665 (1972),that the First Amendment to the United States Constitution doesnot relieve a newspaper reporter of the obligation that allcitizens have to respond to a grand jury subpoena and answerquestions relevant to a criminal investigation of a crime or toconceal the criminal conduct of his source or evidence thereof.The legislature notes that while the federal circuit courts of ^appeal have found a qualified privilege for journalists to applyin some cases as a matter of common law, Congress has never seenfit to create a statutory shield law that would supersedeBranzburg. Furthermore, -IrFj-the legislature finds that Act 210,Session Laws of Hawaii 2008, temporarily established a limitednews media privilege against the compelled disclosure of sourcesand unpublished information to a legislative, executive, orjudicial officer or body, or to any other person who may compeltestimony. Subsequently, Act 113, Session Laws of Hawaii 2011,extended the repeal date of Act 210, Session Laws of Hawaii2008, from June 30, 2011, to June 30, 2013, and required the
judiciary, through its standing committee on the rules ofevidence, to report to the legislature and recommend whether to: (1) Codify Act 210, Session Laws of Hawaii 2008, under chapter 621, Hawaii Revised Statutes, relating to evidence and witnesses, generally; (2) Codify Act 210, Session Laws of Hawaii 2008, under chapter 626, Hawaii Revised Statutes, the Hawaii rules of evidence; or (3) Allow Act 210, Session Laws of Hawaii 2008, to be repealed. In December 2011, the supreme court standing committee onthe rules of evidence submitted a report to the legislaturerecommending that the sunset provision under Act 210, SessionLaws of Hawaii 2008, be repealed and the news media privilege becodified under chapter 621, Hawaii Revised Statutes, withsuggestions for amendments. The purpose of this Act is to enact the recommendation madeby the supreme court standing committee on the rules of evidenceby repealing the sunset date of Act 210, Session Laws of Hawaii2008, as amended by Act 113, Session Laws of Hawaii 2011, whichmakes permanent the news media privilege, and making additionalamendments offered by the Judiciary, through its standingcommittee on the rules of evidence, as well as the AttorneyGeneral, and the American Civil Liberties Union, in an effort to
define limits on the applicability of the privilege.incorporating aomc of tho auggcationa made by the standingcommittee. SECTION 2. Act 210, Session Laws of Hawaii 2008, as amendedby Act 113, Session Laws of Hawaii 2011, is amended as follows: 1. By amending section 1 to read: "SECTION 1. Chapter 621, Hawaii Revised Statutes, isamended by adding a new section to be appropriately designatedand to read as follows:"§621- Limitation on compellable testimony from journalists andnewscasters; exceptions, (a) Definitions. For purposes of thissection, (1) "Journalist or Newscaster" shall mean one who, for gain or livelihood, is engaged in gathering, preparing, collecting, writing, editing, filming, taping, or photographing of news intended for a newspaper, magazine, news agency, press association, wire service, or radio or television station or network. (2) "Magazine" shall mean a publication containing news which is published and distributed ordinarily not less frequently than four times a year, either through print or digital means, and has done so for at least one year with a paid circulation.
(3) "News agency" shall mean a commercial organization that collects and supplies news to subscribing newspapers, magazines, or radio and television broadcasters. (4) "Newspaper" shall mean a paper with a paid circulation that is printed and distributed ordinarily not less frequently than once a week and has done so for at least one year, and that contains news, articles of opinion (as editorials), features, advertising, or other matter regarded as of current interest. (5) "Press association" shall mean an association of newspapers or magazines formed to gather and distribute news to its members. (6) "Wire service" shall mean a news agency that sends out syndicated news copy by wire to subscribing newspapers, magazines, or radio or television broadcasters. [ 4 ) ] (b) A journalist or newscaster presently or previously -*-employed by or otherwise professionally associated with anynewspaper, magazine, or any digital version thereof operated bythe same organization, or any news agency, press association,wire service, or radio or television transmission station ornetwork, shall not be required by a legislative, executive, orjudicial officer or body, or any other authority having thepower to compel testimony or the production of evidence, todisclose, by subpoena or otherwise, | >
(1) ]_ [¥] the source, or information that could reasonably beexpected to lead to the discovery of the identity of the source,of any published or unpublished information obtained by theperson while so employed or professionally associated in thecourse of gathering, receiving, or processing information forcommunication to the public; es?provided however that the assertion of the privilege based onprevious employment as a journalist or newscaster shall extendonly to information obtained during the previous period ofemployment.[-(-S-)—Any unpubliahcd information obtained or prepared by theperson while so employed or professionally aaaociatcd in thecouroo of gathering,—receiving,—or procoaaing information forcommunication to the public.][ k — h limitation on compollablc testimony ootabliahcd by this 4}Tesection may aloo be claimed by and afforded to any individualwho can dcmonatrato by clear and convincing evidence that;43r)—The individual haa regularly and materially participated in the reporting or publishing of news or information of substantial public interest for the purpose of dissemination to the general public by moano of tangible or olcctronic media;
42-)—The position of the individual ia materially oimilar or identical to that of a journaliot or ncwacaator, taking into account tho method of diaaomination;43-)—The intcrcat of the individual in protecting the oourcca and unpubliahcd information under oubocction—fa-)—is- materially oimilar to the intcrcat of the individualo referenced under subsection—(a) ;—and-44-)—The public interest is ocrvcd by affording the protcctiona of thia acction in a specific circumatancc under conaidcration.] (c) This section shall not apply if:(1) Probable cause exists to believe that the person claiming the privilege has committed, is committing, or is about to commit a crime;(2) The person claiming the privilege has observed the alleged commission of a crime, but if: (A) The interest in maintaining the privilege granted by this section outweighs the public interest in disclosure; and (B) The commission of the crime is the act of communicating or providing the information or documents at issue, then the privilege granted by this section may be asserted;
(3) There is substantial evidence that the source or information sought to be disclosed is material to the investigation, prosecution, or defense of a felony, potential felony, or serious crime involving unlawful injury to persons or animals, or to a civil action [for defamation], and the source or information sought is: (A) Unavailable, despite exhaustion of reasonable alternative sources; (B) Noncumulative,- and (C) Necessary and relevant to the charge, claim, or defense asserted;(4) The information sought to be disclosed is critical to prevent serious harm to life or public safety;—ea?(5) The source consents to the disclosure of unpublished documents or other tangible materials provided by the source; or(6) The information is sought by a defendant in a criminal case who has a constitutional right to the information sought. (d) No fine or imprisonment shall be imposed against aperson validly claiming [the] a privilege pursuant to thissection [for rcfuaal to disclose informationprivileged pursuantto thio section] .-"-"-
2. By amending section 3 to read: "SECTION 3. This Act shall take effect upon its approval[and shall be repealed on June 30,—2013] ." SECTION 3. This Act does not affect rights and duties thatmatured, penalties that were incurred, and proceedings that werebegun before its effective date. SECTION 4. Statutory material to be repealed is bracketedand stricken. New statutory material is underscored. SECTION 5. This Act shall take effect on June 29, 2013.