CHAPTER 163

FORMERLY

HOUSE BILL NO. 324

AN ACT TO AMEND CHAPTER 43, PART III, TITLE 10 OF THE DELAWARE CODE RELATING TO COURTS AND JUDICIAL PROCEDURE, AND PROVIDING FOR A UNIFORM REPORTERS' PRIVILEGE ACT.

Be it enacted by the General Assembly of the State of Delaware:

Section 1. Amend Chapter 43, Part III, Title 10 of the Delaware Code, by designating the present sections of said Chapter as Subchapter 1, and adding thereto a new subchapter, which shall read as follows:

SUBCHAPTER II. UNIFORM REPORTERS' PRIVILEGE

§ 4320. Definitions

As used in this Act:

(1) "Adjudicative proceeding" means any judicial or quasi-judicial proceeding in which the rights of parties are determined but does not include any proceeding of a grand jury.

(2) "Information" means any oral, written or pictorial material and includes, but is not limited to, documents, electronic impulses, expressions of opinion, films, photographs, sound records, and statistical data.

(3) "Reporter" means any journalist, scholar, educator, polemicist, or other individual who either:

(a) at the time he obtained the information that is sought was earning his principal livelihood by, or in each of the preceding three weeks or four of the preceding eight weeks had spent at least twenty hours engaged in the practice of, obtaining or preparing information for dissemination with the aid of facilities for the mass reproduction of words, sounds, or images in a form available to the general public; or

(b) obtained the information that is sought while serving in the capacity of an agent, assistant, employee, or supervisor of an individual who qualifies as a reporter under subparagraph (a)

(4) "Person" means individual, corporation, business trust, estate, trust, partnership or association, governmental body, or any other legal entity.

(5) "Source" means a person from whom a reporter obtained information by means of written or spoken communication or the transfer of physical objects, but does not include a person from whom a reporter obtained information by means of personal observation unaccompanied by any other form of communication and does not include a person from whom another person who is not a reporter obtained information, even if the information was ultimately obtained by a reporter.

(6) "Testify" means give testimony, provide tangible evidence, submit to a deposition, or answer interrogatories.

(7) "Within the scope of his professional activities" means any situation, including a social gathering, in which the reporter obtains information for the purpose of disseminating it to the public, but does not include any situation in which the reporter intentionally conceals from the source the fact, that he is a reporter and does not include any situation in which the reporter is an eyewitness to or participant in an act involving physical violence or property damage.

§ 4321. Privilege in non-adjudicative proceedings

A reporter is privileged in a non-adjudicative proceeding to decline to testify concerning either the source or content of information that he obtained within the scope of his professional activities.

§ 4322. Privilege in adjudicative proceedings

A reporter is privileged in an adjudicative proceeding to decline to testify concerning the source or content of information that he obtained within the scope of his professional activities if he states under oath that the disclosure of the information would violate an express or implied understanding with the source under which the information was originally obtained or would substantially hinder the reporter in the maintenance or existing source relationships or the development of new source relationships.

§ 4323. Exceptions to the privilege in adjudicative proceedings

(a) Unless the disclosure of the content of the information would substantially increase the likelihood that the source of the information will be discovered, the privilege provided by §4322 shall not prevent a reporter from being required in an adjudicative proceeding to testify concerning the content, but not the source, of information that he obtained within the scope of his professional activities if the judge determines that the public interest in having the reporter's testimony outweighs the public interest in keeping the information confidential. In making this determination, the judge shall take into account the importance of the issue on which the information is relevant, the efforts that have been made by the subpoenaing party to acquire evidence on the issue from alternative sources, the sufficiency of the evidence available from alternative sources, the circumstances under which the reporter obtained the information, and the likely effect that disclosure of the information will have on the future flow of information to the public.

(b) The privilege provided by §4322 shall not prevent a reporter from being required in an adjudicative proceeding to testify concerning either the source or the content of information that he obtained within the scope of his professional activities if the party seeking to have the reporter testify proves by a preponderance of the evidence that the sworn statement submitted by the reporter as required by §4322 is untruthful.

§ 4324. Determination of privilege claim

A person who invokes the privilege provided by this Act may not be required to testify in any proceeding except by court order. If a person invokes the privilege in any proceeding other than a court proceeding, the body or party seeking to have the person testify may apply to the Superior Court for an order requiring the claimant of the privilege to testify. If the court determines that the claimant does not qualify for the privilege under the provisions of this Act, it shall order him to testify.

§ 4325. Waiver

If a reporter waives the privilege provided by this Act with respect to certain facts, he may be cross-examined on the testimony or other evidence he gives concerning those facts but not on other facts with respect to which he claims the privilege. A reporter does not waive or forfeit the privilege by disclosing all or any part of the information protected by the privilege to any other person.

§ 4326. Short title

This Act may be cited as the "Uniform Reporters' Privilege Act".

Section 2. If any provision of this Act or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or application, and for this purpose the provisions of this Act are severable.

Approved July 9, 1973.