You asked whether Connecticut law protects reporters from revealing confidential information to law enforcement agencies.

SUMMARY

Connecticut law does not provide reporters with a confidentiality privilege. But it does prohibit search warrants to search a place or seize anything in the possession, control, or custody of a journalist or news organization unless there is probable cause that (1) the person or organization committed or is committing the offense related to the property named in the warrant or (2) the property is contraband or an instrument of a crime. The law states that it does not limit the right to subpoena any evidence otherwise permitted by law (CGS § 54-33i and j).

The statute defines a “journalist” as someone engaged in the business of investigating, collecting, or writing news or supervising those activities, intending to publish or present the news. A “news organization” is

We did not find any Connecticut cases on a reporter’s privilege in criminal proceedings but there are a few cases on a reporter’s privilege in civil cases. None of these cases are at the Supreme or Appellate Court level. The leading reported case confers a limited privilege in that if the requested information is not crucial to the case or if it is potentially available elsewhere, the court will not require a reporter to divulge the sources of his information. It is unclear how the reasoning in these cases would apply to criminal proceeding. They also do not discuss any state constitutional protections that might apply.

CONNECTICUT CASES IN CIVIL PROCEEDINGS

We have only been able to identify one reported and four unreported cases in Connecticut that deal with the issue of reporter privilege and they do not involve criminal proceedings. In the leading case, Connecticut State Board of Labor Relations v. Fagin (33 Conn. Sup. 204 (1976)), the court recognized a limited constitutional privilege of a newsman to withhold confidential sources. The case involved an attempt by the labor relations board to force a newspaper reporter to answer certain questions at a hearing concerning the discharge of a police officer who was president of the police union. The reporter had written a story stating that the board of police commissioners was expected to recommend the officer's dismissal, and the reporter was asked at the labor relations board hearing if the source of his information was the board of police commissioners. He refused to answer, and the labor relations board applied in Superior Court for an order directing him to respond.

The court stated that the question presented was whether a reporter can refuse to disclose information he received in confidence. The court discussed the U. S. Supreme Court’s ruling in Branzburg v. Hayes (408 U. S. 665 (1972)) and two federal Second Circuit Court of Appeals cases interpreting the federal constitution (Baker v. F & F Investment, 470 F. 2d 778 (1972) and Garland v. Torre, 259 F. 2d 545 (1958)) to support the notion that a limited privilege exists. The court found two conditions necessary to require disclosure of confidential sources: (1) a reasonable effort must first be made by the inquirer to obtain the information in some other manner, and (2) the information sought must be highly relevant to the proceeding. Because no attempt had been made to obtain the information by any other means, such as by asking members of the police commission, the court denied the labor relations board's petition.

In three cases, the court ordered the media to comply with the subpoena and supply the requested information. In Goldfeld v. Post Publishing (4 Med. L. Rptr. 1167 (1978)), a libel action brought by a businessman over a newspaper article based on "informed sources," the court applied the two part test and found that the information was only reasonably available from the newspaper and that it was central to the plaintiff proving his case. The court directed the defendant to answer three specific questions concerning who the informed source was and exactly what he said.

In Rubera v. Post-Newsweek Stations (8 Med. L. Rptr. 2293 (1982)), a libel case concerning a deputy sheriff who asserted that he was injured by a television broadcast linking him to illegal gambling, the court stated that the First Amendment does not provide a privilege to refuse to reveal information the witness deems confidential. The issue was the plaintiff deputy sheriff's attempt to force the television station to respond to some specific discovery interrogatories and to produce its notes, memoranda, and videotapes concerning the broadcast. The court concluded that the information sought was possessed by the defendant, was relevant to the inquiry, and was not available from anyone else. Because plaintiff's need for the information was great and more than sufficiently compelling, the court used its discretion to order the television station to respond.

In Addiss v. Feldberg (No. CV 93 070 44 26, 10 Conn. L. Rptr. No. 7233, October 14, 1993), the health services department sought to require a dentist to submit to an examination of his mental and emotional state and his ability to practice dentistry. A local television station, having heard the dentist was being investigated, began its own inquiry and had a reporter pose as a patient and videotape the dentist while he was treating her. When the defendant heard about the tape, he subpoenaed the television station, which refused to produce the tape. The court concluded that nothing about the tape was confidential and that its production would not inhibit future news-gathering activities. The reporter could have been compelled to testify about what she observed, but she had moved out of state and was no longer available. Defendant dentist Feldberg indicated that he only wanted the videotape for preliminary discovery purposes, and Maloney ordered the station to produce it.

In a fourth case, Harp v. King (unpublished, No. 392107, March 15, 2000), the court found that a journalist had not waived his privilege not to reveal the identity of a confidential source as recognized in the Fagin case.

Application to Criminal Proceedings

It is unclear how the reasoning in these cases would apply to criminal proceedings. In Branzburg v. Hayes, the U. S. Supreme Court ruled that there is no First Amendment testimonial privilege to refuse to answer relevant and material questions about confidential information in a grand jury’s good faith investigation (408 U. S. 665 (1972), Am Jur 2d Witnesses § 528). The federal circuits have disagreed on the extent and effect of the Branzburg ruling (Am Jur 2d Witnesses § 525).

The federal Second Circuit Court of Appeals, whose jurisdiction includes Connecticut, applied its test for a reporter’s qualified privilege in civil cases to criminal cases in 1983 in U. S. v. Burke (700 F. 2d 70 (2^nd Cir. 1983), finding “no legally-principled reason for drawing a distinction between civil and criminal cases. ” But the court later limited Burke to its facts in light of U. S. Supreme Court authority (United States v. Cutler (6 F. 3d 67 (2^nd Cir. 1993)). The test used in Burke, which still appears valid in the Second Circuit for civil cases, permits a court to order disclosure of a journalist’s sources on a clear and specific showing that the information is highly material and relevant, necessary or critical to the claim, and not obtainable from other available sources (SEC v. Seahawk Deep Ocean Technology, 166 F. R. D. 268 (2^nd Cir. 1996)).

The Connecticut cases also do not discuss whether any state constitutional protections might provide reporters with a confidentiality privilege.

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