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Court compels reporter's eyewitness testimony of meeting

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  1. Protecting Sources and Materials
Sep. 12, 2007  ·   The Vermont Supreme Court ordered a reporter to provide eyewitness testimony of a town board…

Sep. 12, 2007  ·   The Vermont Supreme Court ordered a reporter to provide eyewitness testimony of a town board meeting, refusing to recognize a qualified reporter’s privilege for non-confidential observations of public events.

The Sept. 7 ruling stems from a subpoena in an age discrimination lawsuit filed by James Spooner, a candidate for the town’s road foreman position, against the town of Topsham. The town argues it bypassed Spooner for the position solely because he is related to a number of local officials, including a member of the board.

In an article for the Journal (Vt.) Opinion, reporter Hank Buermeyer quoted statements made during the meeting of two board members explaining the decision to hire one of Spooner’s competitors because he was younger and so gave the town the opportunity to “get a lot more service.”

By requiring the testimony, the high court unanimously reversed the decision of trial court judge Mary M. Teachout, who quashed the subpoena, holding that Buermeyer should be protected by a qualified reporter’s privilege. Teachout explained that she was particularly worried that compelling testimony would exert a “chilling” effect on the willingness of journalists to attend public meetings, a concern that could easily be sidestepped by calling any other meeting attendee to offer the same testimony.

The high court, however, rejected any claim of privilege, concluding that a reporter’s First Amendment interests in avoiding a subpoena are at their lowest when called to testify regarding non-confidential observations of events open to the public, and might not exist at all in such circumstances.

“No confidential sources or materials are at risk,” Chief Justice Paul L. Reiber wrote for the five-member panel. “No unpublished information, notes, or other resource materials that might infringe on the newspaper’s editorial autonomy are sought by the plaintiff.”

The court was also skeptical of a possible chilling effect on the media without any tangible proof indicating such a consequence. Ultimately, the court concluded that the “risk of the occasional subpoena for a reporter’s testimony about events witnessed or statements heard at a public meeting” would not be “an unreasonable burden for the press to bear” and would not deter the press from “covering otherwise newsworthy public events.”

Megan J. Shafritz, who represented Buermeyer on the appeal, said she worries that the burdens on a reporter to testify in these situations might become severe, pointing out that the town indicated it would subpoena all documents and notes generated in connection with the article as well as all information relating to any meetings between the reporter and plaintiff or other potential witnesses, records indicating any “bias” by the reporter or the newspaper, the reporter’s “file,” any evidence of “prior inaccurate stories” and all records relating to the “editorial policy” of the Journal Opinion.

“These are things that usually can be used to rebut a witness and producing them becomes a bigger burden on the reporter,” Shafritz said. “Reporters might well think twice about whether these types of events are important enough to cover.”

In its holding, the court also explained an important limitation on the applicability of the state’s qualified reporter’s privilege. Under the standard the state enunciated in the 1974 case, State v. St. Peter, to overcome the privilege, a party must ordinarily show that a reporter’s testimony must be relevant and material and that there was no other adequately available source of the information.

The court now clarified that even though other witnesses may observe the same event, they cannot serve as a separate source of information as to what transpired. Instead, the “vagaries of perception and memory” render the reporter and an alternative witness not sources of the same information, but rather sources of different information.

(Spooner v. Town of Topsham, Robert B. Hemley and Megan J. Shafritz, Gravel and Shea, Burlington, Vt.)MP

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