Freedom of Information 2013

Hawaii Shield Law

Senate Judiciary Committee guts Shield Law bill

Hawaii's law giving journalists protection against identifying confidential news sources will probably limp into conference committee.

The Senate committee stripped House 622, HD 1, eliminating most of those protections. Sens. Sam Slom and Les Ihara tried to return the bill to the current law and make it permanent, but Sen. Clayton Hee moved a bill eliminating protections for nontraditional journalists (for which Hawaii’s law has been applauded), unpublished notes and outtakes (which more than 70 percent  of the 40 jurisdictions with a shield law protects),  adding serous crimes, civil lawsuits and criminal defendants’ cases to the list of items that can be subpoenaed (making Hawaii 39th out of the 40 jurisdictions in terms of items without absolute privilege) and reducing the number of journalists who could assert the privilege.

Here are Clayton Hee’s comments on his version of the bill that include information on the 1948 Chicago Tribune article about Dewey defeating Truman showing how the media make errors.

Hawaii Shield Law Coalition attorney Jeff Portnoy said Hee's use of such information had nothing to do with the media Shield Law.

He called the bill a travesty and said he would recommend that the bill die if allowed to emerge from conference committee as the Senate version.

The Senate version is based heavily on objections to the law by the Attorney General’s Office, which acknowledges that their comments are not based on facts.

The House version increased the number of items that can be subpoenaed (ranking Hawaii 39th out of 40 jurisdiction in terms of such application). 

 Why Hawaii needs to keep its Shield Law

Keoni Alvarez is a good example of why we need a Shield Law. He is also a reason to be thankful this time of year around Freedom of Information Day.

The Big Island documentary filmmaker without a media company behind him stood up to a developer's demands for his outtakes and backup materials in 2009.

With the help of the ACLU, he won, and his film soon will tell us about Native Hawaiian burial practices.

It was a film that Alvarez at one time thought of scrapping.

Joseph Brescia was building a house on Kauai near a Hawaiian cemetery. When construction started, Hawaiian burials were found on the property, and protests ensued. Alvarez was there to capture it for his film.

Little did he know he would be caught up in the middle of a lawsuit, to which he wasn't party.

Alvarez told a coalition of journalism organizations March 11 that he was ready to end the project rather than give up raw footage. That footage doesn’t give the whole picture of what people had to say, he said. It can take several takes to get what the people want to say correctly.

"I feared their using things against people in the wrong way," he said.

"They should be prepared for it ... and not use other people's footage."

Alvarez is a perfect example of the important parts of Hawaii's Shield Law, says University of Hawaii journalism professor Gerald Kato. Alvarez is a  nontraditional journalist and he was protecting unpublished information.

House strips down Shield Law

On Jan. 29, the House Judiciary Committee voted to gut the law that allows journalists to protect the identity of their confidential news sources.

The committee voted tp pass House Bil 622, drafted by Rep. Gregg Takayama.

The bill would have made the Shield Law permanent by removing the June 30 sunset provision in the law.

Judiciary Chairman Karl Rhoads acted to remove the sunset provision but shrunk the confidential source protection coverage.

It expands the exceptions to absolute privilege:

-- From felony cases to potential felony and serious crime involving unlawful injury to humans or to animals.

-- From defamation cases to civil lawsuits.

It would mean that a huge number of instances would not be covered by the absolute source protection compared to the present law.

These changes were sought by the Attorney General's Office, which cited potential problems with constitutional rights in criminal cases to disclosure.