SECTION 1. The legislature finds that Act 210, Session Laws of Hawaii 2008, temporarily established a limited news media privilege against the compelled disclosure of sources and unpublished information to a legislative, executive, or judicial officer or body, or to any other person who may compel testimony. Subsequently, Act 113, Session Laws of Hawaii 2011, extended the repeal date of Act 210, Session Laws of Hawaii 2008, from June 30, 2011, to June 30, 2013, and required the judiciary, through its standing committee on the rules of evidence, to report to the legislature and recommend whether to:

(1) Codify Act 210, Session Laws of Hawaii 2008, under chapter 621, Hawaii Revised Statutes, relating to evidence and witnesses, generally;

(2) Codify Act 210, Session Laws of Hawaii 2008, under chapter 626, Hawaii Revised Statutes, the Hawaii rules of evidence; or

(3) Allow Act 210, Session Laws of Hawaii 2008, to be repealed.

In December 2011, the supreme court standing committee on the rules of evidence submitted a report to the legislature recommending that the sunset provision under Act 210, Session Laws of Hawaii 2008, be repealed and the news media privilege be codified under chapter 621, Hawaii Revised Statutes, with suggestions for amendments.

Act 210, Session Laws of Hawaii 2008, expired on June 30, 2013, pursuant to the extended sunset date included in Act 113, Session Laws of Hawaii 2011. There is currently no operative news media privilege in Hawaii state law. The purpose of this Act is to enact the recommendation made by the supreme court standing committee on the rules of evidence by permanently codifying the news media privilege originally enacted through Act 210, Session Laws of Hawaii 2008, as amended by Act 113, Session Laws of Hawaii 2011, and incorporating some of the suggestions made by the standing committee.

SECTION 2. Chapter 621, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§621- Limitation on compellable testimony from journalists and newscasters; exceptions. (a) A journalist or newscaster presently or previously employed by or otherwise professionally associated with any newspaper or magazine or any digital version thereof operated by the same organization, news agency, press association, wire service, or radio or television transmission station or network, shall not be required by a legislative, executive, or judicial officer or body, or any other authority having the power to compel testimony or the production of evidence, to disclose, by subpoena or otherwise:

(1) The source, or information that could reasonably be expected to lead to the discovery of the identity of the source, of any published or unpublished information obtained by the person while so employed or professionally associated in the course of gathering, receiving, or processing information for communication to the public; or

(2) Any unpublished information obtained or prepared by the person while so employed or professionally associated in the course of gathering, receiving, or processing information for communication to the public.

(b) The limitation on compellable testimony established by this section may also be claimed by and afforded to any individual who can demonstrate by clear and convincing evidence that:

(1) The individual has regularly and materially participated in the reporting or publishing of news or information of substantial public interest for the purpose of dissemination to the general public by means of tangible or electronic media;

(2) The position of the individual is materially similar or identical to that of a journalist or newscaster, taking into account the method of dissemination;

(3) The interest of the individual in protecting the sources and unpublished information under subsection (a) is materially similar to the interest of the individuals referenced under subsection (a); and

(4) The public interest is served by affording the protections of this section in a specific circumstance under consideration.

(1) Probable cause exists to believe that the person claiming the privilege has committed, is committing, or is about to commit a crime;

(2) The person claiming the privilege has observed the alleged commission of a crime, but if:

(A) The interest in maintaining the privilege granted by this section outweighs the public interest in disclosure; and

(B) The commission of the crime is the act of communicating or providing the information or documents at issue,

then the privilege granted by this section may be asserted;

(3) There is substantial evidence that the source or information sought to be disclosed is material to the investigation, prosecution, or defense of a felony, potential felony, or serious crime involving unlawful injury to persons or animals, or to a civil action, and the source or information sought is:

(A) Unavailable, despite exhaustion of reasonable alternative sources;

(B) Noncumulative; and

(4) The information sought to be disclosed is critical to prevent serious harm to life or public safety; or

(5) The source consents to the disclosure of unpublished documents or other tangible materials provided by the source.

(d) No fine or imprisonment shall be imposed against a person validly claiming a privilege pursuant to this section."

SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 4. New statutory material is underscored.

SECTION 5. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	17
TWENTY-EIGHTH LEGISLATURE, 2015
STATE OF HAWAII