Nor have we found a New York case affording precedent from which we can determine whether the statute draws a distinction based on the context in which the privilege is asserted. But see People v. Wolf, 329 N.Y.S.2d 291 (Sup.Ct. New York County 1972), and In Re WBAI-FM, 326 N.Y.S.2d 434 (Albany County Ct. 1971).
New York's Shield Law was enacted in 1970 in response, in part, to attempts by the Federal Government to compel the disclosure of confidential information and sought to protect newspersons from contempt charges for failing to disclose such information or its sources that were obtained during the news gathering process (Governor's Mem, 1970 N.Y. Legis Ann, at 508). In the years that followed, the appellate courts in every judicial department of this State were unanimous in ruling that the statute did not protect nonconfidential information (see, People v Le Grand, 67 A.D.2d 446 [2d Dept]; Matter of WBAI-FM v Proskin, 42 A.D.2d 5 [3d Dept], affg 68 Misc.2d 355; People [Fischer] v Dan, 41 A.D.2d 687 [4th Dept], appeal dismissed 32 N.Y.2d 764, lv denied 32 N.Y.2d 613; Matter of Wolf v People, 39 A.D.2d 864 [1st Dept], affg 69 Misc.2d 256). In reaching this conclusion, courts noted that the privilege must be strictly construed as it provides an exception to the fundamental duty of all citizens to disclose information to an authorized governmental body (Matter of WBAI-FM v Proskin, supra, at 7).
Over the next few years, a number of courts held that the statute afforded less than an absolute shield (see, e.g., People [ Fischer] v Dan, 41 A.D.2d 687, app dsmd 32 N.Y.2d 764; Matter of Wolf v People, 69 Misc.2d 256, affd 39 A.D.2d 864; Matter of WBAI-FM, 68 Misc.2d 355, affd sub nom. Matter of WBAI-FM v Proskin, 42 A.D.2d 5). In 1975, the Legislature reacted by adding a provision prohibiting grand juries from pursuing contempt proceedings against reporters (see L 1975, ch 316).
The cases uniformly held that in order for a communication or its source to be shielded from disclosure it must be shown that the information was imparted to the newsman under a cloak of confidentiality upon an understanding, either express or implied, that either the information or its sources, or both, would not be revealed. ( Matter of WBAI-FM, 68 Misc.2d 355, aff'd. sub nom. Matter of WBAI-FM v Proskin, 42 A.D.2d 5; Matter of Wolf v People, 69 Misc.2d 256, aff'd. 39 A.D.2d 864; Matter of Andrews v Andreoli, 92 Misc.2d 410.) Where the information had not been received under a recognizable cloak of confidentiality however, no privilege against disclosure of either the material or the source attached.
For the next few years, courts interpreted the statute as providing only a qualified privilege and found an implicit requirement of confidentiality of sources and materials. (See,Matter of WBAI-FM, 68 Misc.2d 355, affd sub nom. Matter of WBAI-FM v Proskin, 42 A.D.2d 5; Matter of People v Wolf, 69 Misc.2d 256, affd 39 A.D.2d 864.) Even though the statute was amended in both 1975 and 1981 to further protect journalists from requests for information or disclosure of sources, some lower courts still upheld the confidentiality requirement.
However, the Shield Law prior to its amendment in 1981 had that very language and the courts have consistently interpreted it to refer to confidential information. ( Matter of WBAI-FM, 68 Misc.2d 355, affd sub nom. Matter of WBAI-FM v Proskin, 42 A.D.2d 5 [in the dissent by COOKE, J. (now Chief Judge), he stated (p 9): "The entire thrust of section 79-h is aimed at encouraging a free press by shielding those communications given to the news media in confidence.