I. Introduction: History & Background

The District of Columbia has codified the journalist's privilege against disclosing sources, news, and information. The District of Columbia enacted the Free Flow of Information Act, D.C. Code § 16-4701-4704 in 1992 largely in response to the D.C. Court of Appeals's decision in Wheeler v. Goulart, 593 A.2d 173 (D.C. 1991), which upheld the lower court's order holding a Washington Post reporter in civil contempt for refusing to answer questions regarding sources. See generally Grunseth v. Marriott Corp., 868 F. Supp. 333, 336 (D.D.C. 1994).

The District's shield law provides an absolute privilege against the compelled testimony about sources, whether or not confidential. The District's shield law also provides a qualified privilege for unpublished news or information, including any notes, outtakes, photographs or photographic negatives, video or sound tapes, film, or other data, irrespective of its nature. The courts have applied the privilege broadly, concluding that it applies "to information gathered outside of the District, by non-resident journalists, or about events that occurred elsewhere." Prentice v. McPhilemy, 27 Med. L. Rptr. 2377, 2381 (D.C. Super. Ct. 1999) (holding that privilege could apply to documents and information collected by a non-resident journalist, in a foreign jurisdiction, that pertain to events that occurred outside the jurisdiction). The court also has held that that Act applies to documents created or sources found prior to the enactment of the Act. Id.

Additionally, a trial court in the District has held that a qualified First Amendment privilege protected a trade association from having to disclose the identity of a whistleblower who communicated anonymously over the internet. Solers v. Doe, 35 Med. L. Rptr. 1297 (D.C. Super. Ct. 2006).