Hawaii lawmakers set to resume deliberations on state shield law

Hawaii lawmakers are expected to meet again this week to work on reconciling competing versions of a bill to make the state’s reporter shield law permanent.

H.B. 622 was originally drafted to remove the law's June 30 expiration date. But lawmakers in both the state House and Senate passed amended versions of the bill limiting who can take advantage of the privilege.

Both versions of the bill limit the circumstances in which reporters can take advantage of the privilege that would keep them from being forced to reveal their confidential sources or reveal their notes.

The Senate version of the reporter shield bill, in particular, removes any such protections from bloggers, requires authors to work for traditional media outlets such as newspapers, magazines and wire services, and eliminates any privilege protections for unpublished material.

Last week, Rep. Karl Rhoads, the lead House negotiator on the bill, announced a new draft that would keep protections for digital media and free publications but retain several of the Senate amendments such as the exclusion of unpublished notes from the law.

“We feel it guts protections for unpublished information while keeping key features of the senate amendments which we oppose,” said Gerald Kato, a journalism professor at the University of Hawaii at Manoa.

Members of a nine-member committee of state House and Senate leaders are expected to meet again Monday to continue working through a compromise of the various drafts of the proposed reporter shield law.

Hawaii’s current shield law offers an absolute privilege protecting both the identity of sources and the content of newsgathering materials in most situations.

In felony prosecutions and civil defamation actions, though, the expiring law offers only a qualified privilege for journalists.

In those circumstances the privilege does not apply if the information is otherwise unavailable, "noncumulative" — i.e., not merely repetitive — and necessary to the charge, claim or defense asserted.

As for who is covered, the current law applies automatically to any individual who is currently or has previously been employed by a newspaper, magazine, or radio or television station.

Non-traditional journalists, such as bloggers, may also fall within the bounds of the shield’s protections if they regularly report information of public interest and maintain similar interests as professional journalists in protecting their sources and newsgathering materials.

Since its first enactment in 2008, the shield law’s protections were exercised just once in 2009 when Kauai Circuit Court Judge Kathleen Watanabe granted a documentary filmmaker’s request to keep his unpublished footage and sources confidential.

The Reporters Committee for Freedom of the Press sent a letter last week to lawmakers urging the state legislature to pass the original version of the bill which simply removes the sunset provision from the current state shield law.