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Judge upholds reporter's right in first test of Kansas shield

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  1. Protecting Sources and Materials
In a victory for the state’s five-month-old shield law, a Kansas trial court ruled Tuesday that a reporter for The…

In a victory for the state’s five-month-old shield law, a Kansas trial court ruled Tuesday that a reporter for The Wichita Eagle does not have to provide the names of confidential sources in a lawsuit involving the accidental death of a child last March, the Eagle reported.

In ruling from the bench, Sedgwick County District Judge William Woolley said that parties to a lawsuit seeking confidential information from a reporter must exhaust all other methods of obtaining it before they can subpoena the information, according to Lyndon Vix, attorney for the Eagle.

“The judge read the statute to require that the efforts [to obtain confidential information] be made before you can come to the media and [request it]. His ruling was based on the fact that the plaintiff hadn’t done anything other than subpoena the newspaper,” Vix said.

The plaintiff in the suit is the mother of a five-year-old boy who fell to his death from an inflatable ride at an indoor playground last March. The boy’s mother subpoenaed Eagle reporter Suzanne Perez Tobias after an article Tobias published in May anonymously quoted two former employees of the playground who said they were taught to launch kids from the ride, the action that caused the boy’s death, Vix said.

Vix said the plaintiff could easily discover the employees’ names through other means than a reporter subpoena, including common discovery techniques like interrogatories and depositions. He also said the government could subpoena Tobias again if it is unable to determine the employees’ names from other sources. In that case, Vix said the court would need to closely scrutinize the prosecution’s methods during discovery before ruling on whether Tobias should be forced to testify.

If prosecutors are “not able to [discover the names], I’d like to take a look at what efforts they made and possibly argue to the judge that they still haven’t done what you would expect a reasonable litigant to do in order to determine this information,” Vix said.

While upholding the condition of the shield law that requires a reasonable effort to discover confidential information, the judge did not rule on whether the law’s other conditions had been met. Kansas' shield law requires parties requesting confidential information from a reporter to also demonstrate that the information is relevant to the case and that a “compelling interest” exists in providing it.

Vix said the employees' names do meet the relevance test in this case; but in the event that the prosecution re-issues the subpoena, Vix said he would argue that the identities of the two employees do not meet the test of compelling interest.

“So we do still have arguments to make, even if they come back [to court],” he said. “Compelling interest is a higher standard than [relevance].”

Vix said Woolley’s decision is an important step for trial courts considering the shield law, which was passed last April, nearly a decade after local press groups began the push for its creation.

“It’s significant in that the judge analyzed the shield law . . . and made clear that [reasonable] efforts have to be made before you can even get over the first hurdle in asking the media for confidential material,” he said. “I think it’s a common sense interpretation that likely other judges are going to follow as they interpret the shield law.”