a. How exhaustive must search be?

The shield law only requires that a “reasonable effort” be made. There is no statutory or case law specifically addressing this issue, nor is it clear that state law requires a party issuing a subpoena to undertake a search. There have been unpublished decisions rendered by United States Magistrates in Kansas holding that a litigant has demonstrated unavailability, but these have not discussed where the bar will be set in terms of how far the litigant must go in seeking other means of access to the information. See, e.g., United States v. Foote, 2002 U.S. Dist. LEXIS 14818, 30 Med. L. Rep. 2469 (D. Kan. 2002).

A. Burden, standard of proof

Under the shield law, the party seeking to compel disclosure must establish by a preponderance of the evidence that disclosure: “(1) is material and relevant to the proceeding for which the disclosure is sought; (2) could not, after a showing of reasonable effort, be obtained by readily available alternative means; and (3) is of a compelling interest.” Kan. Stat. Ann. § 60-481 (2017).

In state court cases, there is no statutory or case law specifically addressing this issue, although, as noted earlier, there are two decision in non-journalist cases that suggest a party seeking "confidential" information must demonstrate that it is unavailable from other sources. In federal cases, the burden is on the litigant seeking to overcome the privilege claim to demonstrate that the information in issue is crucial to his or her case and that it is unavailable from other sources.

IV. Who is covered

The definition of journalism in the shield statute includes a “publisher, editor, reporter or other person employed by a newspaper, magazine, news wire service, television station or radio station who gathers, receives or processes information for communication to the public” or “online journal[s] in the regular business of newsgathering and disseminating news or information to the public.”

H. Media as a party

The shield statute does not address whether different privilege rules apply in cases in which a journalist and his or her employer are defendants in a defamation, privacy or other tort case. There is case law suggesting the rules do change, and that journalists may pay a price for claiming the privilege, at least in defamation cases in which proof of actual malice is an essential element. See, e.g., Gleichenhaus v. Carlyle, 226 Kan. 167, 170, 597 P.2d. 611 (1979), and Herbert v. Lando, 441 U.S. 153 (1979). In Grandbouche v. Clancy, 825 F.2d 1463 (10th Cir. 1987), however, a somewhat unusual non-media First Amendment privilege case, the Tenth Circuit "refuse(d) to adopt a per se rule that a plaintiff waives his First Amendment privileges simply by bringing suit." 825 F.2d at 1467.

E. Confidential and/or non-confidential information

Kansas’s shield statute does not address this issue, and there is no statutory or case law specifically addressing this issue. As noted above, the Kansas Supreme Court has suggested in two cases not involving journalists that a litigant seeking confidential information will be required to demonstrate that he or she has exhausted alternative sources of the information in issue. Berst v. Chipman, 232 Kan. 180, 189, 653 P.2d 107 (1982); Adams v. St. Francis Regional Medical Center, 264 Kan. 144, 160, 955 P.2d 1169 (1998).

D. Information and/or identity of source

The shield statute extends “any information or the source of any such information procured while acting as a journalist.” If the qualified privilege applies, it protects the identity of a confidential source, as well as information implicitly identifying the source, under both state and federal case law.

1. Civil

The shield law does not distinguish between type of case. The pre-sheild law qualified privilege is said to be stronger in a civil case than in a criminal case: In Pennington, for example, the court noted that:

"While courts recognize that a news reporter's privilege is more tenuous in a criminal proceeding than in a civil case, that fact in and of itself does not automatically require disclosure in a criminal case. If that were true, no privilege would exist for a news reporter summoned in a criminal case."

224 Kan. at 576.

In Silkwood, the court noted without amplification that the "type of controversy" is a factor to consider in determining whether the qualified privilege is available in a particular case. 563 F.2d at 438.

A. Generally

Statute: The shield statute provides a qualified privilege to journalists for sources contacted and information obtained during activities that are part of their “gathering, receiving or processing information for communication to the public.” Journalists may not be compelled to disclose their source or information from said source unless the party seeking to compel disclosure establishes that the disclosure is “material and relevant” to the controversy, could not be obtained by “readily available alternative means” after exercising due diligence, and is of a “compelling interest.” By compelling interest, the party must prove that the disclosure “has probative value that is likely to outweigh any harm done to the free dissemination of information to the public through the activities of journalists.”

A. Shield law statute

Note: Kansas’s shield law is codified at K.S.A. §§ 60-480 – 60-485. The most relevant provisions read: 

60-481. Journalist privilege. Except as provided in K.S.A. 2014 Supp. 60-482, and amendments thereto, a journalist cannot be adjudged in contempt by a judicial, legislative, administrative body or any other body having the power to issue subpoenas, for refusing to disclose, in any state or local proceeding, any information or the source of any such information procured while acting as a journalist.

60-482. Same; compelled disclosure. (a) A journalist may not be compelled to disclose any previously undisclosed information or the source of any such information procured while acting as a journalist until the party seeking to compel the disclosure establishes by a preponderance of the evidence in district court that the disclosure sought:

I. Introduction: History & Background

Kansas adopted a shield law in April 2010. See Kan. Stat. Ann. § 60-480 - 60-485 (2017). The case law governing actions in the state courts is poorly developed. In the federal courts, the decisions of the United States Court of Appeals for the Tenth Circuit control. These decisions recognize and apply a relatively strong qualified privilege.