I. Introduction: History & Background

In Illinois, reporters have a statutory qualified privilege protecting their sources, whether confidential or nonconfidential, from compelled disclosure. The Illinois Reporter's Privilege Statute, 735 ILCS 5/8-901 to 8-909, (the "Statute") provides that a court cannot order disclosure of the source of any information obtained by a reporter, except upon finding that "all other available sources of information have been exhausted" and either that "disclosure of the information sought is essential to the protection of the public interest involved" or in libel or slander cases, that the plaintiff's need for disclosure "outweighs the public interest in protecting the confidentiality of sources of information used by a reporter."

The statute is designed to preserve the autonomy of the press by allowing reporters to assure their sources of confidentiality, permitting the public to receive complete, unfettered information. In re Arya, 266 Ill. App. 3d 848, 852, 589 N.E.2d 832, 834 (1992). The Act incorporates the free press guarantees of the First Amendment and Art. I, § 4, of the Illinois Constitution (1970), and confers a presumptive privilege on the newsgathering functions of reporters and the media. "The reporter's privilege has evolved from a common law recognition that the compelled disclosure of a reporter's sources could compromise the news media's first amendment right to freely gather and disseminate information." In re Special Grand Jury Investigation of Alleged Violation of Juvenile Court Act, 104 Ill. 2d 419, 428–29, 472 N.E.2d 450, 454 (1984). "[T]his Act reflects 'a paramount public interest in maintenance of a vigorous, aggressive and independent press capable of participating in robust, unfettered debate over controversial matters, an interest which has always been a principal concern of the First Amendment.'" People ex rel. Scott v. Silverstein, 89 Ill. App. 3d 1039, 1043, 412 N.E.2d 692, 694-95 (1980), rev'd on other grounds, 87 Ill. 2d 167 (1981).

The Illinois Supreme Court and other Illinois courts have consistently upheld the principles behind the Statute. See, e.g., In Re Special Grand Jury Investigation, 104 Ill. 2d 419, 472 N.E.2d 450 (1984) (reversing circuit court's order divesting reporter of privilege because the grand jury had not exhausted all other available sources of information); Illinois v. Fort, 15 Media L. Rep. 2251 (Ill. Cir. Ct. 1988) (quashing subpoena where criminal defendant could not show that documents were essential for a fair trial and that he had exhausted all other available sources); Cukier v. American Medical Ass'n, 259 Ill. App. 3d 159, 630 N.E.2d 1198 (1994)(refusing divestiture of privilege because the public has an interest in protecting confidentiality of sources, and because plaintiff failed to allege lack of other available sources); U.S. v. Lopez, 14 Media L. Rep. 2204 (N.D. Ill. 1987) (quashing criminal defendant's subpoena for outtakes because of defendant's failure to demonstrate outtakes contained information unavailable from other sources); Neal v. City of Harvey, 173 F.R.D. 231, 233, 25 Media L. Rep. 2403 (N.D. Ill. 1997) (quashing subpoena because qualified privilege protects reporter subpoenaed to testify about information available from other witnesses); People v. Slover, 323 Ill. App. 3d 620, 753 N.E.2d 554 (2001) (reversing jail conviction for reporter for refusing to produce unpublished crime scene photographs sought by a criminal defendant and applying the statutory reporter's privilege); Dunn v. Hunt, 31 Media L. Rep. 2245 (Ill. Cir. Ct., 2003) (civil plaintiff "has not met his burden to overcome the privilege and compel disclosure of the non-broadcast news materials"). But see People v. Pawlaczyk, 189 Ill. 2d 177, 724 N.E.2d 901 (2000) (upholding the principles behind the Statute with some favorable language for the media, but ultimately allowing disclosure and ordering the media to identify their sources to a grand jury on the grounds that disclosure was "essential to the public interest involved").