805 N.E.2d 559 | Ohio Ct. App. | 2004
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *309
{¶ 2} The following facts are pertinent to our consideration of this appeal. This matter arose out of a suit filed by Svoboda, a staff reporter for The Blade, who worked the University of Toledo beat, against Dennis Schaffer, Fred LeFebvre, appellant, and their employer, Clear Channel Broadcasting, Inc., and its parent company, Clear Channel Communications, Inc. In her amended complaint, Svoboda sued defendants on the bases of defamation, invasion of privacy, and intentional infliction of emotional distress.
{¶ 3} Svoboda's claims arise out of alleged statements that were made by Schaffer, LeFebvre and appellant, on the air in October 1999, during a radio segment called "The Breakfast Club." In general, it is alleged that the members of the Breakfast Club accused Svoboda of having a sexual/personal relationship with Block which caused her to negatively slant her articles regarding the University of Toledo in accordance with his views. The broadcasted program included, in part, remarks that Svoboda was Block's "toy," that Block was "putting it to her," and that Block would "leave the money on the dresser."
{¶ 4} During her September 7, 2000 deposition, which was taken before she was added as a defendant in this action, appellant testified that she received information that Svoboda and Block were "dating" from a confidential source. Appellant testified that she was told of this dating relationship during a brief phone conversation, which she either initiated or received, while at work. Appellant also testified that she knew her source and that her source had given her information about other topics previously. Relying on R.C.
{¶ 5} Appellant could not provide an approximate date or time frame as to when the call took place, and did not make any record of the conversation. Appellant further testified that her source did not have first-hand knowledge of the purported relationship; rather, the source had heard of the relationship from *310 some other, unknown person. Appellant never inquired of her source concerning the origin of this alleged fact, the identity of her source's source, how her source's source could have obtained knowledge of a dating relationship between Svoboda and Block, or whether her source's source may have had a motive or agenda that would be a reason to distort information about Block or Svoboda. Appellant testified that, at the time of the phone conversation, she did not consider using this as a news related item on the air; however, she testified that she later confirmed for and/or told Schaffer and LeFebvre that Svoboda and Block were dating.
{¶ 6} During discovery, Svoboda sought to compel the identity of appellant's alleged source. Although Svoboda's written motion to compel was never placed on the court's docket, appellant's response and Svoboda's reply were, and the matter came for hearing before the trial court on September 11, 2002. The trial court granted Svoboda's discovery request and ordered appellant to disclose the identity of the individual who informed her in a telephone call that he or she had heard that Block and Svoboda were dating. In response to the trial court's ruling, appellant raises the following sole assignment of error in this interlocutory appeal:
{¶ 7} "The trial court's discovery order compelling appellant, WVKS FM's news director, to disclose her confidential source of information that appellee was dating John Block violates the express wording of R.C. §
{¶ 8} Specifically, appellant argues that the wording of R.C.
{¶ 9} We initially note that a trial court enjoys considerable discretion in the regulation of discovery proceedings. Manofsky v. Goodyear Tire Rubber Co. (1990),
{¶ 10} In Branzburg v. Hayes (1972),
{¶ 11} Nevertheless, the Branzburg court recognized that federal and state legislatures have the "freedom to determine whether a statutory newsman's privilege is necessary and desirable and to fashion standards and rules as narrow or broad as deemed necessary to deal with the evil discerned and, equally important, to refashion those rules as experience from time to time may dictate." Id. at 706. The court further stated:
{¶ 12} "There is also merit in leaving state legislatures free, within First Amendment limits, to fashion their own standards in light of the conditions and problems * * * in their own areas. * * * [W]e are powerless to bar state courts from responding in their own way and construing their own constitutions so as to recognize a newsman's privilege, either qualified or absolute." Id.
{¶ 13} At the time of Branzburg, Ohio already had adopted such legislation in R.C.
{¶ 14} "No person engaged in the work of, or connected with, or employed by any * * * commercial radio broadcasting station * * * for the purpose of gathering, procuring, compiling, editing, disseminating, publishing, or broadcasting news shall be required to disclose the source of any information procured or obtained by such person in the course of his employment, in any legal proceeding, trial, or investigation before any court * * *.
{¶ 15} "Every * * * commercial radio broadcasting station * * * shall maintain for a period of six months from the date of its broadcast thereof, a record of those statements of information the source of which was procured or obtained by *312 persons employed by the station in gathering, procuring, compiling, editing, disseminating, publishing, or broadcasting news.
{¶ 16} "As used in this section:
{¶ 17} "(A) `Record' includes a tape, disc, script, or any other item or document that sets forth the content of the statements that are required by this section to be recorded. * * *"
{¶ 18} The purpose of R.C.
{¶ 19} Although the statute protects the identity of the source, "[t]he privilege claimed is that of the reporter, not the informant * * *." Branzburg,
{¶ 20} Appellant argues that the trial court was required to provide her the absolute protection afforded by R.C.
{¶ 21} Ohio courts have held that the protection afforded by R.C.
{¶ 22} Nevertheless, contrary to appellant's argument, in drafting R.C.
{¶ 23} Only after appellant has established the application of the statute to her and her contact, in this particular situation, does the privilege provided by R.C.
{¶ 24} Clearly, appellant established that she was employed as the station's news director, hired for the purpose of gathering, procuring, compiling, editing, disseminating, publishing, or broadcasting news. However, contrary to appellant's argument, this fact alone does not entitle appellant to the protection afforded R.C.
{¶ 25} The trial court found that appellant held many non-news related activities in relation to her employment and that she was not behaving in a news-related capacity at the time of the phone call with her alleged source. Specifically, *314 despite the fact that appellant's "source" did not have first-hand knowledge concerning the purported relationship between Svoboda and Block, the trial court noted that appellant nevertheless made no inquiry of her "source" regarding the identity of the person who provided him or her with the information; how the third party might know of such a relationship; or, whether, "in fact, [the third party] was the originator [of the information], or whether that third party had heard it from a `fourth party.'" The trial court further stated:
{¶ 26} "Indeed, at the time of her deposition, and presumably through the date of this writing, [appellant] has and had no idea of who the real source of the rumor was. She didn't ask: whether out of reckless disregard; incompetence; because she heard what she wanted to hear; or simply because she wasn't functioning as a news person at the time."
{¶ 27} Additionally, because appellant's alleged source admittedly did not have first-hand knowledge of any dating relationship between Svoboda and Block, the trial court found that appellant's alleged source was not, in fact, a "source of any information," but was merely a person "passing along something he or she had heard from a third party . . . and a third party about whom [appellant] knew nothing. It was idle gossip, at best and, of course, based upon all of the discovery filed to date in this case, it would appear to be inaccurate gossip."
{¶ 28} R.C.
{¶ 29} Appellant asserts that, based on the following facts, she established the applicability of R.C.
{¶ 30} Moreover, in light of all the evidence, we agree with the trial court that appellant failed to establish that she "procured or obtained" this particular information from her contact "in the course of [her] employment," i.e., while she *315 was "gathering, procuring, compiling, editing, disseminating, publishing, or broadcasting news." In particular, we find the following factors support a finding that appellant was not acting as "news director" at the time of the phone call: (1) appellant's behavior on the phone did not indicate that she was gathering, procuring or compiling news when she spoke with her contact because, at the very least, she asked no investigatory questions; (2) appellant made no record of the conversation with her contact; (3) appellant did not consider the information to be newsworthy at the time she obtained it; and (4) appellant did not even broadcast the information she obtained during a news segment of The Breakfast Club.
{¶ 31} If appellant were acting in the course of her employment, and was actually "gathering, procuring, compiling, editing, disseminating, publishing, or broadcasting news," then there would have been some indicia of this. We find, however, that there is simply no evidence in the record to suggest that appellant was acting in her capacity as news director when she heard about Svoboda and Block. In particular, we note appellant's entire lack of any investigation, or verification with her contact, regarding the reliability of this second-hand information. We find significant, as did the trial court, the fact that appellant made no inquiry of her contact regarding the identity of the person who provided the contact with the alleged information; whether the contact's source had personal knowledge of the alleged relationship; or even whether the contact's source was an individual in a position to have first-hand information regarding this alleged dating relationship.
{¶ 32} We also find that appellant's lack of record keeping, regarding her conversation with her contact, indicates that she was not acting within the course of her employment. If she had been behaving as a news director, then she would have made "* * * a record of those statements of information the source of which was procured or obtained by persons employed by the station in gathering, procuring, compiling, editing, disseminating, publishing, or broadcasting news," as required by R.C.
{¶ 33} Additionally, we find significant, as did the trial court, the fact that appellant did not consider the information to be newsworthy at the time of the phone call. This is not to say that, whenever a reporter does not immediately appreciate the significance or newsworthiness of what they have heard, they are precluded from enjoying the privilege provided by R.C.
{¶ 34} In this case, however, when coupled with the fact that appellant asked no follow-up questions and kept no record of the conversation, appellant's statement that she did not consider the information newsworthy is quite revealing regarding the issue of whether she was acting as "news director" when she heard that Svoboda and Block were dating. Appellant did not believe that what she was being told was news and, accordingly, took no action to gather, procure, or compile this "news" regarding Block and Svoboda.
{¶ 35} This case does not present a situation where a news reporter was "gathering, procuring [or] compiling * * * news," and heard something which she did not consider to be newsworthy, but later determined it was newsworthy. To the contrary, as a whole, the facts in this case indicate that appellant was not behaving as a news director during the phone conversation. Her statement that she did not believe the information was newsworthy is simply another factor which can be used to support such a finding.
{¶ 36} We further find the fact that the alleged information about Svoboda and Block was not broadcasted during any news segment of The Breakfast Club provides additional support for a determination that appellant was not acting in the course of her employment as news director during the phone conversation. Clearly, R.C.
{¶ 37} In light of the evidence to the contrary, as discussed above, we find that that the facts relied upon by appellant, e.g., that she was the news director, had the conversation on the phone while at work, and obtained the information from a source known to her from previous investigations, do not establish that appellant was acting in the course of her employment during this phone conversation, with her contact, on this particular occasion. Accordingly, we find that the trial court did not abuse its discretion in determining that appellant was not acting in the course of her employment, "whether out of reckless disregard; incompetence; *317 because she heard what she wanted to hear; or simply because she wasn't functioning as a news person at the time," when she obtained this alleged information about Svoboda and Block.
{¶ 38} We further find that appellant failed to establish that her contact was "a source of any information," as contemplated by the statute. The terms "source" and "information" are not defined in the statute. Accordingly, "source of any information" must be "read in context and construed according to the rules of grammar and common usage." R.C.
{¶ 39} In determining whether appellant's contact was actually a "source," as used in the context of the statute, we look to the common usage of the word "source." "Source" is defined as "1 * * * b (1): a point of origin or procurement: BEGINNING (2): one that initiates: AUTHOR; * * * (3): one that supplies information * * *." Merriam-Webster's Collegiate Dictionary (1996), 1123. Thus, a "source" is "a point of origin" or one who initiates or supplies "information."
{¶ 40} "Information" is defined as "1: the communication or reception of knowledge or intelligence 2a (1): knowledge obtained from investigation, study, or instruction * * *." Id. at 599. Thus, "information" is the communication or reception of "knowledge," obtained from investigation or study.
{¶ 41} "Knowledge" is defined as "1 obs: COGNIZANCE 2a (1): the fact or condition of knowing something with familiarity gained through experience or association * * * b (1): the fact or condition of being aware of something * * *." Id. at 647. The verb "to know" is defined as "1a (1): to perceive directly: have direct cognition of * * * (2): to be acquainted or familiar with (3): to have experience of 2a: to be aware of the truth or factuality of: be convinced or certain of * * *." Id. at 646-647. Thus, in order to have "knowledge" of a fact or to know the truth or factuality of something, one must have had some experience, perception, acquaintance, association or familiarity with the subject-matter.
{¶ 42} In the case, the subject-matter at issue is the existence of a dating relationship between Svoboda and Block. Appellant's contact did not have first-hand knowledge of such a relationship, and only had heard of the alleged relationship from an unknown third-party. As such, we find that appellant's contact had no "knowledge" of a dating relationship, insofar as that person did not "know" of any dating relationship through "familiarity gained through experience or association," with either Svoboda or Block, and did not "perceive" or "experience" any dating relationship. In fact, appellant's contact could not even have been "aware" of any dating relationship because "awareness" is defined as *318 "having * * * realization, perception, or knowledge," id. at 81; none of which appellant's contact possessed.
{¶ 43} At best, appellant's contact had "knowledge" of a rumor. A rumor, however, is not "information" because the person perpetuating the rumor lacks any "knowledge" regarding the bases for the rumor. A person passing on a rumor, obtained from another, has not gained any "knowledge" of a fact or condition through experience or association and is not aware of the truth or factuality of the rumor, through realization or perception. At times a rumor may be factual; however, it is the lack of "knowledge," on behalf of the person perpetuating the rumor, which prevents a rumor from being considered "information." Accordingly, we find that a rumor is not "information." To find otherwise would be a perversion of the word "information," and would be contrary to its common usage.
{¶ 44} We therefore find that without actual "knowledge" of a dating relationship, appellant's contact was incapable of supplying "information" to appellant, because the contact had no "information" about a dating relationship to supply. Since a "source" is someone who supplies "information," appellant's contact was not a "source" in this instance.
{¶ 45} Regardless of how reliable a person's information has been in the past, if he or she lacks personal knowledge regarding the subject-matter at issue, by definition, that person is not a "source," and the rumor perpetuated by that person is not "information." Conversely, if the person had first-hand knowledge concerning the truth or factuality of the contents of his or her statement, gained through experience, perception or association, then there would be no rumor and that person would be a "source" of "information."
{¶ 46} Pursuant to the clear language in the statute, which states that the privilege only applies to "the source of any information," we find that the legislature clearly did not intend to extend the privilege provided by R.C.
{¶ 47} Based on the foregoing, we find that the trial court did not abuse its discretion in determining that appellant failed to establish her burden regarding the applicability of R.C.
{¶ 48} Moreover, we find that the legislative purpose of R.C.
{¶ 49} Accordingly, appellant's sole assignment of error is found not well-taken. We therefore affirm the discovery order entered by the Lucas County Court of Common Pleas on September 27, 2002. Costs of this appeal are to be paid by appellant.
Judgment affirmed.
Pietrykowski, J., concurs.
Judith Ann Lanzinger, J., dissents.
Dissenting Opinion
{¶ 50} I respectfully dissent. As I conclude that R.C.
{¶ 51} First, with respect to our standard of review, even though a trial court has broad discretion in regulating discovery, the interpretation and application of a statute is reviewed under a de novo standard. Akron v. Frazier (2001),
{¶ 52} By its terms, R.C.
{¶ 53} The majority has grafted on several factors to be considered to determine whether someone has established the status of being "in the course of employment:" i.e., "behaving in a news-related capacity;" working on a story at the time information is received; asking "investigatory questions" when first obtaining information; verifying the reliability of second-hand information; making a record of the conversation;1 and considering the communication to be immediately newsworthy.
{¶ 54} With respect to whether she was in the course of her employment, Tischler testified during her deposition that she spoke with her source on the telephone while she was at work.2 Tischler acknowledged that she did not attempt to discover the identity of her source's source and that she did not make any independent efforts to investigate the information after the phone call. However, she testified that her information was confirmed by LeFebvre who told her that he also had a source who informed him that Svoboda and Block were dating. Tischler also admitted that, at the time she spoke with her source regarding Svoboda and Block, she was not thinking about using the information for the show and had never discussed with Schaffer or LeFebvre the idea of discussing it on the show.3 Ultimately, it was Schaffer who initiated the discussion on the air, so that fact that she did not broadcast the information during a news segment is irrelevant to whether Tischler was in the course of her employment at the time she obtained the information. *321
{¶ 55} While broadening the meaning of "in the course of employment," the majority simultaneously narrows the meaning of the term "any information." R.C.
{¶ 56} "Dictionary definitions are not statutes which determine as a matter of law what meanings words must have. Rather, dictionaries record common usage. In statutory interpretation, dictionaries are appropriately referred to to determine what the legislature probably meant. But the touchstone of statutory interpretation is the legislature's purpose, not any supposed `plain meaning' of the words it used." [Citation omitted.] Dayton v. Schenck (1980)
{¶ 57} The legislative intent behind R.C.
{¶ 58} "News" is an all encompassing category these days. As one court has noted: "[W]e live in a society in which people are bombarded with all types of information, from publications which actually do report current events to those esoteric publications which describe the mating rights of penguins in the Antarctic at springtime. And it is the recognition that this society demands the open and full flow of information and ideas whatever they may be and from wherever they may come." In re Petition of Burnett
(1993),
{¶ 59} It seems that neither the trial court nor the majority wish to "reward" Tischler with a privilege protecting the identity of the person with whom she spoke. We are, however, not ruling on the merits of this case. Certainly, members of the media may not circulate knowing or reckless falsehoods damaging *322
to private reputation without subjecting themselves to liability for damages, including punitive damages, or even criminal prosecution. Branzburg v. Hayes (1972),
{¶ 60} This is a dangerous narrowing of the statutory privilege provided to a broadcaster. The Ohio legislature has recognized the import of gathering information by the broadcast media and specifically permits a broadcaster to protect the source of information. Because R.C.
