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In re Verified Petition of Venezia

June 13, 2007

IN RE VERIFIED PETITION OF MICHAEL G. VENEZIA, APPELLANT.


On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The issue in this appeal is whether the newsperson's privilege shields information about a news reporter's article that the reporter disclosed earlier to the county prosecutor's office and a borough attorney.

In January 2004, the Borough of Leonia terminated Michael Venezia from his position as a probationary police officer. Venezia challenged his termination, and then reached a settlement with the Borough. On December 28, 2004, The Record published a news article disclosing that Venezia was fired because he had been convicted of an undisclosed crime. The article was written by Andrew Glazer and cited the Borough's Mayor Laurence Cherchi as the source of that information. Venezia then filed notice of tort claim for defamation against Cherchi and the Borough. In a follow-up article published by The Record, Cherchi claimed he was misquoted and that Venezia had not been convicted of anything. That article included a statement from The Record's managing editor that the newspaper stood by its original story.

Based in part on Glazer's article, Mayor Cherchi became a target of an investigation by the Bergen County prosecutor's office concerning whether he had unlawfully disclosed Venezia's confidential personnel file. When threatened with a subpoena, Glazer agreed to authenticate the information published in his December 28, 2004 article and submitted to an interview under oath. Glazer also spoke with the Borough's attorney about statements attributed to Cherchi in his article.

Venezia filed a petition to permit him to conduct a pre-litigation deposition of Glazer and for the production of Glazer's notes or recordings of his conversations with Cherchi. Glazer declined, invoking the newsperson's privilege. The Law Division found that Glazer waived the privilege, granted Venezia's petition and ordered Glazer to be deposed. The Appellate Division disagreed and reversed. This Court granted Venezia's petition for certification.

HELD: Once a news reporter speaks outside of the news gathering and reporting process about his conversations with his source, the reporter cannot seek refuge in the newsperson's privilege to deny disclosure of what he had already told others.

1. New Jersey's Shield Law, N.J.S.A. 2A:84A-21 to -21.8 and N.J.R.E. 508, also known as the newsperson's privilege, is one of the most expansive privileges in the country. It protects a reporter from disclosing any information, including confidential sources, gathered in the course of his professional activities, even if the information is disseminated as part of the newsgathering or new reporting process. Disclosure of information by a newsperson outside of the newsgathering and news reporting process constitutes a waiver of the privilege. For example, such waiver occurs when a newsperson communicates confidential information or sources to friends and neighbors outside the course of newsgathering activities. (pp. 14-20)

2. The Court reaffirms that a reporter who publishes an article in a periodical does not waive the newsperson's privilege. When Glazer's article was published detailing information obtained from Cherchi, the privilege was not waived and Glazer could not have been compelled to testify about his article. Likewise, The Record did not waive the privilege by affirming the accuracy of Glazer's article in its editorial comments. (pp. 20-23)

3. The doctrine of waiver is founded on the principle that once a privileged conversation or matter is voluntarily disclosed in a non-privileged setting, there is nothing left to protect. In other words, disclosure is an admission by the holder of the privilege that the confidential matter is no longer worthy of protection. (pp. 24-25)

4. The record in this case does not support Glazer's position that he cooperated with the authorities to discharge a civic or professional responsibility or to cultivate a relationship with an existing source. Glazer was subpoenaed to testify before the Bergen County Grand Jury. The Record released Glazer to authenticate the article after calculating that the potential expense of invoking the privilege was not worth the effort because there were no anonymous sources to be protected. The media defendants do not explain what fundamental value is served by allowing Glazer to provide information to county investigators and the borough attorney and not to a civil litigant. (pp. 25-27)

5. Glazer's assertion of the privilege deprives Venezia of the same information previously disclosed to the investigators and the borough attorney. That information -- confirming that Cherchi made the alleged defamatory remarks -- is the heart of Venezia's defamation case. Glazer did not speak with investigators to gather information from a source, but rather to provide assistance in a prosecution. (pp. 27-28)

6. A reporter waives the privilege if he makes disclosures outside of the news gathering or reporting process. The waiver of the privilege does not apply only to egregious and cavalier disclosures, such as gossiping with neighbors. The Shield Law does not grant reporters the power to selectively and arbitrarily invoke the news reporter privilege after making disclosures outside the newsgathering and news reporting process. As a result of this ruling, journalists may be forced to decide between cooperating with government and preserving this privilege. (pp. 28-30)

7. The precise scope of Glazer's waiver must be narrowly construed. Glazer cannot be compelled to answer questions or provide documents on matters not previously disclosed by him to the county investigators or the borough attorney. He must provide only that information that he actually imparted in his meetings with the investigators and the borough attorney. Glazer cannot withhold documents in his possession that bear on the truthfulness of his assertions and that are relevant to the matter in dispute. Because Glazer waived the privilege, his credibility is subject to the same tests applied to any other witness. Those parts of his notes that contain privileged non-disclosed information may be redacted. (pp. 30-37)

The judgment of the Appellate Division is REVERSED, and the matter is REMANDED.

JUSTICES LONG, LaVECCHIA, ZAZZALI, WALLACE and RIVERA-SOTO join in JUSTICE ALBIN's opinion.

The opinion of the court was delivered by: Justice Albin

Argued April 3, 2006

New Jersey's Shield Law, N.J.S.A. 2A:84A-21 to -21.8, also known as the newsperson's privilege, provides the news media far-reaching protections that are equaled by few states in the nation. Under our Shield Law, a news reporter generally can refuse to disclose in a legal inquiry any information concerning a published news article. Like all privileges, however, the Shield Law is not absolute and can be waived when a reporter knowingly discloses information in circumstances unrelated to the news reporting and gathering process.

This appeal comes before us as a result of plaintiff Michael Venezia's pursuit of a defamation action against Laurence Cherchi, the former mayor of the Borough of Leonia, based on remarks attributed to Cherchi in a news article in The Record. On the one hand, the author of that article, Andrew Glazer, has spoken to agents of the Bergen County Prosecutor's Office and the Leonia Borough attorney about Cherchi's comments in the article. On the other, he has invoked the Shield Law in refusing to answer deposition questions that Venezia's counsel intends to ask about Cherchi's alleged defamatory remarks that were published in The Record. Without Glazer's testimony, Venezia has no case against Cherchi. The Law Division found that Glazer waived the privilege and ordered him to submit to the deposition. The Appellate Division disagreed and reversed. We now hold that the privilege cannot be selectively invoked. Once Glazer stepped from behind the privilege and spoke outside of the news gathering and reporting process about his conversation with Cherchi, he could not seek the refuge of the privilege to deny Venezia's attorney what he already had told others. Therefore, Venezia's attorney may ask Glazer the same questions that Glazer was willing to answer when queried by the prosecutor's investigators and the borough attorney. In addition to responding to those questions, Glazer must produce any notes that will affirm or refute whether Cherchi made the statements attributed to him in the article.

I.

The relevant facts begin in January 2004, when the Borough of Leonia terminated Michael Venezia from his position as a probationary police officer. Venezia challenged his termination, and in February 2004, he and the Borough entered into a settlement agreement resolving the matter. On December 28, 2004, The Record, a newspaper owned by North Jersey Media Group (NJ Media Group), published a news article disclosing that Venezia had been fired as a probationary police officer because he "had been convicted of an undisclosed crime." The article, written by Andrew Glazer, cited Mayor Laurence Cherchi as the source of that information. In the article, Glazer reported Mayor Cherchi's account of Venezia's dismissal:

[Cherchi] and Councilman Arnold Trachtenberg, both Democrats who have bucked the county party boss, have been accused of accessing the sealed personnel files of probationary Police Officer Michael Venezia. In the file, they learned that Venezia had been convicted of an undisclosed crime, Cherchi said.

So on Cherchi's first day in office almost a year ago, his new administration sent the young cop walking. Cherchi said the trouble that followed was tied to the fact that Venezia is the son of state Superior Court Judge Donald R. Venezia, who presides in Hackensack.

Cherchi refused to say what he learned from Venezia's personnel file. Public records do not reveal that Venezia had been convicted of a crime. But Cherchi said that his administration found the crime serious enough to take Venezia off the police force. He said the prior administration had tried to cover up the officer's record so he could slip into the job.

And Cherchi said he had consulted with the borough attorney before taking action. A memo written by the attorney . . . last month advised Cherchi and the council that they were permitted to seek information about an employee's expunged criminal record.

"We saw that it was our job to have the best people on the police force that we could," Cherchi said. "Once I satisfied myself that these things were true, we decided to take action so we could."

[Andrew Glazer, Leonia Mayor Says Fax Backs His Case Against Rivals, The Record (Hackensack, N.J.), Dec. 28, 2004, at L-1.]

In response to that article, on January 5, 2005, Venezia served a notice of tort claim pursuant to N.J.S.A. 59:8-4 on Cherchi and the Borough, alleging that Venezia's reputation had been damaged by the defamatory statements made by Cherchi. The tort claim asserted that Cherchi uttered those statements knowing they were false or with reckless disregard for the truth. In a follow-up article published on January 12, The Record reported that Cherchi claimed that not only was he misquoted in the earlier article, but it was his understanding that "Venezia wasn't convicted of anything." Scott Fallon, Exprobationary officer says he'll sue Leonia and its mayor, The Record (Hackensack, N.J.), Jan. 12, 2005, at L-3. The article included a statement from The Record's managing editor that "the newspaper [stood] by the original story." Ibid.

Two days later, The Record published the following letter from Cherchi in which he denied that he made any statement to Glazer about Venezia's criminal history:

[Your December 28 article] attributes to me the statement that the policeman of the borough of Leonia terminated earlier this year has been convicted of a crime. I did not make that statement, and as far as I know that policeman has not been convicted of a crime.

I would appreciate that you publish a correction. [Laurence P. Cherchi, Editorial, Leonia mayor and borough cop, The Record (Hackensack, N.J.), Jan. 14, 2005.]

Beneath Cherchi's letter appeared the following: "Editor's note: The Record stands by its Dec. 28 story." Ibid.

Based in part on the Glazer article, Mayor Cherchi became the target of a criminal investigation conducted by the Bergen County Prosecutor's Office, which sought to determine whether Cherchi unlawfully disclosed Venezia's confidential personnel file. Pursuant to that investigation, the prosecutor's office advised Jennifer Borg, counsel for NJ Media Group, that it intended to subpoena Glazer to testify before a grand jury about the contents of his December 28 article. As a result of a "verbal agreement" between Borg and an assistant Bergen County prosecutor, The Record allowed Glazer to authenticate "the information published in the December 28, 2004 article" provided that the prosecutor's office refrained from enforcing the subpoena or "asking questions [of Glazer] which went beyond authentication." In a certification, Borg explained that "[b]ecause the information contained in the December 28 article had already been published and the source of the information was clearly identified in the article, The Record determined that authentication was a viable option in this instance to avoid a potentially costly legal battle with the prosecutor's office."

On January 18, 2005, accompanied by Borg, Glazer appeared in the Bergen County Prosecutor's office, where he submitted to an interview under oath conducted by two county detectives. Borg, however, was not present during the interview itself. In a ten-page statement to the detectives, Glazer detailed his telephone conversation with Mayor Cherchi that led to the December 28 article and provided some general background about his news reporting responsibilities. The questioning covered in depth the genesis of the December 28 article:

Q: Let me show you a copy of an article which was printed in The Bergen Record on December 28, 2004. Do you recognize that article?

A: Yes.

Q: How do you recognize that article?

A: I'm the author of it.

Q: The information that you wrote in that article, where did you ...


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