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2A:84A-21a. Definitions
Unless a different meaning clearly appears from the context of this act, as used in this act:
a. ~News media~ means newspapers, magazines, press associations, news agencies, wire services, radio, television or other similar printed, photographic, mechanical or electronic means of disseminating news to the general public.
b. ~News~ means 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.
c. ~Newspaper~ means a paper that is printed and distributed ordinarily not less frequently than once a week and that contains news, articles of opinion, editorials, features, advertising, or other matter regarded as of current interest, has a paid circulation and has been entered at a United States post office as second class matter.
d. ~Magazine~ means a publication containing news which is published and distributed periodically, has a paid circulation and has been entered at a United States post office as second class matter.
e. ~News agency~ means a commercial organization that collects and supplies news to subscribing newspapers, magazines, periodicals and news broadcasters.
f. ~Press association~ means an association of newspapers or magazines formed to gather and distribute news to its members.
g. ~Wire service~ means a news agency that sends out syndicated news copy by wire to subscribing newspapers, magazines, periodicals or news broadcasters.
h. ~In 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 intentionally conceals from the source the fact that he is a reporter, and does not include any situation in which a reporter is an eyewitness to, or participant in, any act involving physical violence or property damage.
Added by L.1977, c. 253, s. 2, eff. Oct. 5, 1977.
2A:84A-21.1. Criminal proceeding; Subpena; disclosure of information; application of act
Where a newsperson is required to disclose information pursuant to a subpena issued by or on behalf of a defendant in a criminal proceeding, not including proceedings before administrative or investigative bodies, grand juries, or legislative committees or commissions, the provisions and procedures in this act are applicable to the claim and exercise of the newsperson@s privilege under Rule 27 (C. 2A:84A-21).
L.1979, c. 479, s. 1, eff. Feb. 27, 1980.
2A:84A-21.2. Time of proceedings
Proceedings pursuant to this act shall take place before the trial, except that the court may allow a motion to institute proceedings pursuant to this act to be made during trial if the court determines that the evidence sought is newly discovered and could not have been discovered earlier through the exercise of due diligence.
L.1979, c. 479, s. 2, eff. Feb. 27, 1980.
2A:84A-21.3. Prima facie showing subpenaed materials obtained during professional activities; waiver of privilege or other grounds for disclosure; hearing
a. To sustain a claim of the newsperson@s privilege under Rule 27 the claimant shall make a prima facie showing that he is engaged in, connected with, or employed by a 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, and that the subpenaed materials were obtained in the course of pursuing his professional activities.
b. To overcome a finding by the court that the claimant has made a prima facie showing under a. above, the party seeking enforcement of the subpena shall show by clear and convincing evidence that the privilege has been waived under Rule 37 (C. 2A:84A-29) or by a preponderance of the evidence that there is a reasonable probability that the subpenaed materials are relevant, material and necessary to the defense, that they could not be secured from any less intrusive source, that the value of the material sought as it bears upon the issue of guilt or innocence outweighs the privilege against disclosure, and that the request is not overbroad, oppressive, or unreasonably burdensome which may be overcome by evidence that all or part of the information sought is irrelevant, immaterial, unnecessary to the defense, or that it can be secured from another source. Publication shall constitute a waiver only as to the specific materials published.
c. The determinations to be made by the court pursuant to this section shall be made only after a hearing in which the party claiming the privilege and the party seeking enforcement of the subpena shall have a full opportunity to present evidence and argument with respect to each of the materials or items sought to be subpenaed.
L.1979, c. 479, s. 3, eff. Feb. 27, 1980.
2A:84A-21.4. In camera inspection; hearing; determination of admissibility; order for production
Upon a finding by the court that there has been a waiver as to any of the materials sought or that any of the materials sought meet the criteria set forth in subsection 3.b., the court shall order the production of such materials, and such materials only, for in camera inspection and determination as to its probable admissibility in the trial. The party claiming the privilege and the party seeking enforcement of the subpena shall be entitled to a hearing in connection with the in camera inspection of such materials by the court, during which hearing each party shall have a full opportunity to be heard. If the court, after its in camera review of the materials, determines that such materials are admissible according to the standards set forth in subsection 3.b., the court shall direct production of such materials, and such materials only.
L.1979, c. 479, s. 4, eff. Feb. 27, 1980.
2A:84A-21.5. Hearings; findings of fact and conclusions of law
After any hearing conducted by the court pursuant to section 3 or 4 hereof, the court shall make specific findings of fact and conclusions of law with respect to its rulings, which findings shall be in writing or set forth on the record.
L.1979, c. 479, s. 5, eff. Feb. 27, 1980.
2A:84A-21.6. Appeals; stay of penalty; sealing of record; return of privileged material
An interlocutory appeal taken from a decision to uphold or quash a subpena shall act as a stay of all penalties which may have been imposed for failure to comply with the court@s order. The record on appeal shall be kept under seal until such time as appeals are exhausted. In the event that all material or any part thereof is found to be privileged, the record as to that privileged material shall remain permanently sealed. Any subpenaed materials which shall, upon exhaustion and determination of such appeals, be found to be privileged, shall be returned to the party claiming the privilege.
L.1979, c. 479, s. 6, eff. Feb. 27, 1980.
2A:84A-21.7. Co-defendants; notice of proceedings; right to intervene
Where proceedings are instituted hereunder by one of several co-defendants in a criminal trial, notice shall be provided to all of the co-defendants. Any co-defendant shall have the right to intervene if the co-defendant can demonstrate, pursuant to section 3, that the materials sought by the issuance of the subpena bear upon his guilt or innocence. Where such intervention is sought by a co-defendant, that co-defendant shall be required, prior to being permitted to participate in any in camera proceeding, to make that showing required of a defendant in section 3.
L.1979, c. 479, s. 7, eff. Feb. 27, 1980.
2A:84A-21.8. Assessment of costs or counsel fee
If the court finds no reasonable basis for requesting the information has been shown, costs, including counsel fee, may be assessed against the party seeking enforcement of the subpena. Where an application for costs or counsel fee is made, the judge shall set forth his reasons for awarding or denying same.
L.1979, c. 479, s. 8, eff. Feb. 27, 1980.
2A:84A-21.9. News media person or entity; freedom from searches and seizures of documentary materials; exceptions
Any person, corporation, partnership, proprietorship or other entity engaged on, engaged in, connected with, or otherwise employed in gathering, procuring, transmitting, compiling, editing, publishing, or disseminating news for the public, or on whose behalf news is so gathered, procured, transmitted, compiled, edited, published or disseminated shall be free from searches and seizures, by State, county and local law enforcement officers with respect to any documentary materials obtained in the course of pursuing the aforesaid activities whether or not such material has been or will be disseminated or published.
This section shall not restrict or impair the ability of any law enforcement officer, pursuant to otherwise applicable law, to search for or seize such materials, if there is probable cause to believe that:
a. The person, corporation, partnership, proprietorship or other entity possessing the materials has committed or is committing the criminal offense for which the materials are sought; or
b. The immediate seizure of the materials is necessary to prevent the death of or serious bodily injury to a human being; or
c. The giving of notice pursuant to a subpena duces tecum would result in the destruction, alteration or deliberate concealment of the documentary materials other than work product; or
d. The documentary materials, other than work product, have not been produced in response to a court order directing compliance with a subpena duces tecum, and
(1) All appellate remedies have been exhausted by the party seeking to quash the subpena duces tecum; or
(2) There is a probability that the delay in an investigation or trial occasioned by further proceedings relating to the subpena would threaten the interests of justice. In the event a search warrant is sought pursuant to this subparagraph, the person, corporation, partnership, proprietorship or other entity possessing the materials shall be afforded adequate opportunity to submit an affidavit to the court setting forth the basis for any contention that the materials sought are not subject to seizure.
L.1979, c. 488, s. 1, eff. Feb. 28, 1980.
2A:84A-21.10. Applications for search warrant; approval
In the event a search warrant is sought pursuant to Section 1 of this act, all applications to the court for such warrants shall be approved in advance of their submission by the Attorney General or the prosecutor of the county in which execution of the warrant will take place.
L.1979, c. 488, s. 2, eff. Feb. 28, 1980.
2A:84A-21.11. Civil cause of action for damages due to violations
a. A person, corporation, partnership, proprietorship or other entity aggrieved by a search for or seizure of materials in violation of this act shall have a civil cause of action for damages for such search or seizure:
(1) Against the State of New Jersey, or against any other governmental unit, all of which shall be liable for violations of this act by their officers, employees or agents while acting within the scope or under color of their office, employment or agency.
(2) Against an officer, employee or agent of the State of New Jersey or any other governmental unit who has violated this act while acting other than within the scope or under color of his office, employment or agency. It shall be a complete defense to a civil action brought under this paragraph that the officer, employee or agent had a reasonable good faith belief in the lawfulness of his conduct unless his error is due to an ignorance of an official statement of the law.
b. The State of New Jersey or any other governmental unit, liable for violations of this act under paragraph 3 a. (1), may not assert as a defense to a claim arising under this act the immunity of the officer, employee or agent whose violation is complained of or his reasonable good faith belief in the lawfulness of his conduct, except that such a defense may be asserted if the violation complained of is that of a judge.
c. The remedy provided by paragraph 3 a. (1) against the State of New Jersey or any other governmental unit is exclusive of any other civil action or proceeding for conduct constituting a violation of this act, against the officer, employee or agent whose violation gave rise to the claim, or against the estate of such officer, employee or agent.
d. A person, corporation, partnership, proprietorship or other entity having a cause of action under this section shall be entitled to recover actual damages but not less than liquidated damages of $1,000.00, such punitive damages as may be warranted, and such reasonable attorney@s fee and other litigation costs reasonably incurred as the court, in its discretion, may award; provided, however, that the State of New Jersey or any other governmental unit shall not be liable for interest prior to judgment.
e. The Attorney General is authorized to settle a claim for damages brought against the State of New Jersey under this section and shall promulgate regulations to provide for the commencement of an administrative inquiry following a determination of a violation of this act by an officer, employee or agent of the State of New Jersey or any other governmental unit and for the imposition of administrative sanctions against such officer, employee or agent if warranted.
f. A county prosecutor may settle a claim for damages brought against the county of his jurisdiction or any other governmental unit under this section.
L.1979, c. 488, s. 3, eff. Feb. 28, 1980.
2A:84A-21.12. Definitions
As used in this act: a. ~Documentary materials~ means materials upon which information is recorded and includes, but is not limited to, written or printed materials, photographs, tapes, videotapes, negatives, films, outtakes and interview files.
b. ~Work product~ means any documentary materials created by or for a person in connection with his plans, or the plans of the person creating such materials, to gather, file procure, transmit, compile, edit, publish or disseminate news for the public, except such work product as constitutes contraband, or the fruits, instrumentalities or evidence of a crime.
c. ~Any other governmental unit~ includes any branch, subdivision or agency of the government of the State or any locality within it.
d. ~Attorney General~ means the Attorney General of the State of New Jersey, or his designee.
e. ~County prosecutor~ means the duly appointed prosecutor of a county, or his designee.
L.1979, c. 488, s. 4, eff. Feb. 28, 1980.
2A:84A-21.13. Inapplicability of act to rights of department of corrections
Nothing contained in this act shall be construed to limit the right of the Department of Corrections to search the offices of inmate newspapers or the public information offices of any inmate organization located within a correctional facility.
L.1979, c. 488, s. 5, eff. Feb. 28, 1980.
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