Court finds identity of leaker not relevant to murder trial, overturns order to journalist to disclose source

Kimberly Chow | Reporter's Privilege | News | December 16, 2014

An Illinois appellate court has reversed a trial court’s order that a reporter reveal his confidential source, shooting down the judge's conclusion that finding the identity of a leaker of a police document in a murder case justified compelled disclosure.

The Reporters Committee, joined by 38 other media organizations, filed an amicus brief in the case, People of the State of Illinois v. Bethany McKee, in April 2014.

The Third District Appellate Court on Monday reversed the trial court judge, who had held Patch.com reporter Joseph Hosey in contempt for refusing to reveal the identity of his source in a story involving a double murder in northern Illinois. Hosey’s February 2013 articles for Joliet Patch contained details of the police investigation and stated that the Hosey had obtained police reports, which were confidential and had not been released to the public. In response, counsel for the defendant filed a motion to divest Hosey of his reporter’s privilege and compel him to reveal his source, arguing that the leak compromised McKee’s right to a fair trial.

The trial court agreed and granted the motion, stating that investigating the leak was critical to determining whether a violation of Illinois law with regard to the secrecy of court proceedings and criminal investigations had occurred. Hosey then appealed to the Third District.

The appellate court ruled this week that the information on the leaker did not meet the threshold requirement of relevancy under the Illinois reporter’s privilege law. The court pointed out that the ultimate question of the case was whether McKee was guilty of committing a double murder, and that the issue of whether Illinois laws governing the secrecy of grand jury and criminal proceedings had been broken was merely a collateral matter.

“Because the identity of Hosey’s source cannot be said to be relevant to a fact of consequence to the first degree murder allegations, we hold that the circuit court erred when it granted the motion for divestiture,” the court stated in the December 15 opinion.

The Illinois reporter’s privilege law provides a qualified privilege — courts may not compel journalists to reveal the source of their information unless certain criteria are met. One of the showings the requesting party must make is the relevancy of the information sought to the underlying case. The relevancy requirement is common in other states’ qualified privilege shield laws, as well as in the federal reporter’s privilege advocated by Justice Potter Stewart in his dissent in the 1969 Supreme Court case Branzburg v. Hayes. Justice Stewart would have courts weigh the First Amendment rights of reporters against the requesting party’s need for disclosure, looking at, among other considerations, whether the information is relevant and material to the party’s case.

The appellate court’s repudiation of the trial court’s order on relevancy grounds demonstrates a reluctance to violate journalists’ First Amendment rights when unveiling a leaker will make no actual difference in the case at hand. The court referred to language from the Illinois Supreme Court case People v. Pawlaczyk, which highlighted the reasons behind the state shield law.

“The purpose of the privilege is to assure reporters access to information, thereby encouraging a free press and a well-informed citizenry,” the opinion quotes.