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Matter of Woodhaven Lumber and Mill Work

Decided: April 23, 1991.

IN THE MATTER OF WOODHAVEN LUMBER AND MILL WORK. STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
ASBURY PARK PRESS, DEFENDANT-RESPONDENT



On appeal from the Superior Court, Appellate Division.

For affirmance -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- none. The opinion of the Court was delivered by Garibaldi, J.

Garibaldi

This interlocutory appeal involves an interpretation of the eyewitness exception to New Jersey's Press Shield Law, N.J.S.A. 2A:84A-21; Evidence Rule 27 ("Shield Law"). Under the part of the Shield Law known as the eyewitness exception, a news-medium employee who "in the course of pursuing his professional activities" is an eyewitness to "any act involving physical violence or property damage," N.J.S.A. 2A:84A-21a(h); Evid.R. 27, may not use the newsperson's privilege to avoid disclosing that information. Specifically, the Court must decide whether three news photographers who photographed a burning fire were "eyewitnesses" to an "act involving property damage" and therefore not protected by the Shield Law.

I

On September 11, 1989, a fire broke out at the Woodhaven Lumber Works in Bricktown, New Jersey. Three photographers from defendant, Asbury Park Press ("Press"), were dispatched to the scene of a fire. The following day, the Press published articles accompanied by aerial photographs of the fire that the photographers had taken from a helicopter. The State alleges that a Press representative had agreed to its request for the published photographs but had stated that a subpoena

would be necessary for the unpublished photographs. The prosecutor's office served a subpoena duces tecum on the Press on September 15, 1989, directing the Press to appear before the Ocean County Grand Jury and produce "any and all photographs and negatives taken by Asbury Park Press personell [sic] or representatives."

The Press moved to quash the subpoena ten days later based on the Shield Law privilege. Each of the three photographers at the fire submitted an affidavit asserting that he was "one of the Press photographers sent to the scene of the fire" and that all photographs were taken "in the course of pursuing [his] professional activities." Each raised the Shield Law privilege as the basis "to refuse to disclose the photographs, negatives, and any other information gathered in connection with this story."

The State, however, claims that the Shield Law does not apply because the photographers were "eyewitnesses" to "an act involving property damage." In response to the trial court's request for supporting material, the prosecutor's office provided an affidavit from Sgt. Larry Wilson, the commander of the office's Arson Response Unit. In his affidavit, Sgt. Wilson explained that "there is a good likelihood that the photos and negatives in the possession of the Asbury Park Press will be helpful to our investigation," and that they will "reveal highly relevant information about the fire."

He stated that the State's photographs of the fire are imperfect for several reasons, including "poor height perspective, smoke distortion problems and time factors." Sgt. Wilson also asserted that the photographs published in the Press indicated good height perspective and no severe distortion from smoke and flame. He stated that because fire reconstruction by experts depends on the quality and perspective of photographs used, the Press' aerial views would enable the State to achieve a much better fire reconstruction than it could with any other photographs available to it or known to exist.

The trial court granted the Press' motion and entered an order quashing the subpoena. The court found that the definition of "act" in the eyewitness exception includes the doing of a thing or deed and does not include all the resulting consequences. In the instant case, the act subject to the Shield Law exception would be the act of starting the fire. The trial court reasoned that because the photographers had arrived on the scene after the fire was already burning, they did not witness an "act involving . . . property damage" and could successfully assert their Shield Law privilege.

The Appellate Division, in a brief per curiam opinion, affirmed the trial court's decision substantially for the reasons stated therein. The court agreed with the trial court's distinction "between the act of setting the fire, which would be covered by the exception, and its aftermath, the fire in progress, which would not be the subject of the exception."

We granted the State's motion for leave to appeal. 122 N.J. 345, 585 A.2d 358 (1990).

II

The so-called "eyewitness exception" appears in the definition section of the Shield Law, also entitled the Newsperson's Privilege. The general rule, in pertinent part, provides as follows:

Subject to Rule 37, a person engaged on, engaged in, connected with, or employed by news media for the purpose of gathering, procuring, transmitting, compiling, editing, or disseminating news for the general public or on whose behalf news is so gathered, procured, transmitted, compiled, edited or disseminated has a privilege to refuse to disclose, in any legal or quasi-legal proceeding or before any investigative body, including, but not limited to, any court, grand jury, petit jury, administrative agency, the Legislature or legislative committee, or elsewhere:

a. The source, author, means, agency or person from or through whom any information was procured, obtained, supplied, furnished, gathered, transmitted, compiled, edited, disseminated, or delivered; and

b. Any news or information obtained in the course of pursuing his professional activities whether or not it is disseminated. [ N.J.S.A. 2A:84A-21(a), (b); Evid.R. 27(a), (b).]

"News" as defined in the statute includes "any written, oral or pictorial information gathered, procured, transmitted, compiled, edited or disseminated by, or on behalf of any person engaged in, engaged on, connected with or employed by a news media and so procured or obtained while such required relationship is in effect." N.J.S.A. 2A:84A-21a(b) (emphasis added); Evid.R. 27 (emphasis added).

The eyewitness exception appears in definitional subsection "h," which specifies that

"[i]n the course of pursuing his professional activities" means "any situation, including a social gathering, in which a reporter obtains information for the purpose of disseminating it to the public, but . . . does not include any situation in which a reporter is an eyewitness to, or participant in, any act involving physical violence or property damage.' N.J.S.A. 2A:84A-21a(h) (emphasis added); Evid.R. 27 (emphasis added).

That the three Press photographers are employed by the news media and that the photographs were taken by them in the course of their professional activities is uncontested. The conflict, therefore, centers on whether those three photographers, in taking the photographs, were eyewitnesses to "any act involving physical violence or property damage."

III

Although this Court has previously addressed and sanctioned several of the press privileges set forth in the Shield Law, we have not directly considered the eyewitness exception. In interpreting that exception we rely on well-established principles of statutory construction. We consider, in turn, the plain meaning of the statutory language, the statutory scheme, and the general public policies underlying the Shield Law as reflected in statutory amendments and judicial decisions.

Standard principles of statutory interpretation direct us initially to examine the language of the statute. As we commented in our most recent decision addressing the Shield Law, In re Schuman, 114 N.J. 14, 552 A.2d 602 (1989), "it is ...


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