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Trial court orders news outtakes disclosed to arson investigators

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  1. Protecting Sources and Materials

    NMU         OHIO         Confidentiality/Privilege         Jun 5, 2001    

Trial court orders news outtakes disclosed to arson investigators

  • The judge, however, required the government to overcome a qualified privilege in order to obtain non-confidential information.

A trial judge in Toledo, Ohio, ordered WTVG-TV to turn over news footage to fire investigators after the television station fought a grand jury subpoena.

On April 3, a WTVG-TV video crew was shooting footage at a local cemetery when they heard a commotion. Bystanders told the crew that an abandoned caretaker’s house was on fire and pointed to a group of children walking away from the blaze. The crew shot footage of them.

Fire investigators subpoenaed the entire videotape recorded at the April fire. The subpoena directed that the tape should include “events immediately preceding the fire that depicts the person or persons who may have been involved in setting the fire.”

The station contested the grand jury subpoena.

“We don’t give out raw video,” Janet Hundley, the news director, said. “We consider it like a reporter’s notebook, just part of the newsgathering process. When subpoenaed, we will give aired footage. Raw footage is considered, for lack of a better word, sacred.”

Judge Ruth Ann Franks of the Court of Common Pleas in Lucas County first ruled on May 10 that the material on the videotape was relevant and material to the arson investigation and that, based upon representations of local prosecutors, the state could not get the information from other sources. Franks then ordered the station to produce the footage for a review in the judge’s chambers. After watching the video, she ruled on May 14 that the state’s need for disclosure outweighed the media’s interest under the reporter’s privilege.

But some media attorneys said although the station lost the fight, the court’s ruling may contain a legal golden nugget for the news media.

Prior to this case, Ohio law has been unclear on whether a constitutional privilege applies to non-confidential information. By requiring the government to show they had a need for the material and had no other avenue to pursue the evidence, the court, in essence, adopted a qualified privilege standard in a criminal case for non-confidential information.

“On its terms the statutory shield law in Ohio provides absolute protection for confidential sources. It is silent on other issues of reporter’s privilege,” said Fritz Byers, counsel for WTVG-TV. “To the extent there is an argument for such a qualified privilege it has to rely on constitutional sources.”

Although the judge’s ruling will not be a binding precedent on other courts, it may serve as a persuasive authority, Byers said.

(In re Subpoena of Janet Hundley; Lucas Co. Court of Common Pleas, #MS01-1091) DB

© 2001 The Reporters Committee for Freedom of the Press

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