WBAI-FM v. Proskin

Appellate Division of the Supreme Court of New York

WBAI-FM v. Proskin

42 A.D.2d 5, 344 N.Y.S.2d 393, 1973 N.Y. App. Div. LEXIS 4222

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 7, 1973

StatusPublished

Cited by18 cases

This text of 42 A.D.2d 5 (WBAI-FM v. Proskin) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

WBAI-FM v. Proskin, 42 A.D.2d 5, 344 N.Y.S.2d 393, 1973 N.Y. App. Div. LEXIS 4222 (N.Y. Ct. App. 1973).

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Opinions

Per Curiam.

This is an appeal from an order of the County Court of Albany County, entered December 10, 1971, which denied appellant’s motion to quash a subpoena duces tecum.

On September 17, 1971 appellant, a radio station located in New York City, received an anonymous telephone call. The caller stated that a letter, advising of an imminent bomb threat, had been placed in a nearby phone booth. An employee of the station, a newscaster, proceeded to the designated spot and found the letter which stated that the “ Weather Underground ” was about to bomb the offices of the Commissioner of Correctional Services in the Twin Towers Office Building in Albany. The police were notified, the letter was read over the air, and its contents later released to all interested news agencies. A bomb did explode as threatened, resulting in extensive property damage.

On October 11, 1971 appellant was served with a subpoena dimes tecum which requested the production of the letter. Appellant, pursuant to CPLft 2304, instituted this proceeding to quash the subpoena claiming that it was privileged under the provisions of section 79-h of the Civil Rights Law. The issue is whether the letter in question is a privileged news source within the meaning of subdivision (b) of section 79-h of the Civil Rights Law.

We agree with that portion of the County Court’s decision which held that the letter was outside the scope of the privilege since it was not a confidential communication. We find no merit in appellant’s contention that, since section 79-h does not explicitly state that the privilege applies only to confidential communications, no requirement of confidentiality exists. When section 79-h was signed into law by Governor Rockefeller, he cited the “ real and imminent threat ” of requiring “ the disclosure of information obtained by reporters in confidence (N. Y. Legis. Annual, 1970, p. 508.) Furthermore, the statute [7]*7has been interpreted to afford the privilege only where the information was received under a cloak of confidentiality. (See Matter of Wolf, 39 A D 2d 864.)

Historically, each of the several privileges recognized by our statutes rests upon a confidential relationship. We recognize that these privileges are exceptions to the general rule which requires disclosure to an authorized governmental body and must therefore be strictly construed. Confidentiality is here lacking. The author of the letter took pains to conceal his identity by signing the letter “ Weather. Underground ”, and to insure that appellant would obtain the letter without learning its author’s identity. Clearly, he was not willing to rely upon appellant to shield his identity from the authorities. He refused to establish a confidential relationship with appellant but preferred to talk with anyone who answered the phone.

Moreover, since the letter was left in a public telephone booth where it might have been found by anyone and turned over to the police, it is clear that the author could not have been relying upon appellant to withhold the letter itself.

Finally, appellant urges that the District Attorney has not demonstrated a need for the subpoena, wherefore it should be quashed. We disagree. The letter is sought as an aid to investigation of a serious crime, which is a sufficient basis for requiring it to be turned over to the authorities where not barred by statutory privilege.

The order should be affirmed, with costs.

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Per Curiam.

This is an appeal from an order of the County Court of Albany County, entered December 10, 1971, which denied appellant’s motion to quash a subpoena duces tecum.

On September 17, 1971 appellant, a radio station located in New York City, received an anonymous telephone call. The caller stated that a letter, advising of an imminent bomb threat, had been placed in a nearby phone booth. An employee of the station, a newscaster, proceeded to the designated spot and found the letter which stated that the “ Weather Underground ” was about to bomb the offices of the Commissioner of Correctional Services in the Twin Towers Office Building in Albany. The police were notified, the letter was read over the air, and its contents later released to all interested news agencies. A bomb did explode as threatened, resulting in extensive property damage.

On October 11, 1971 appellant was served with a subpoena dimes tecum which requested the production of the letter. Appellant, pursuant to CPLft 2304, instituted this proceeding to quash the subpoena claiming that it was privileged under the provisions of section 79-h of the Civil Rights Law. The issue is whether the letter in question is a privileged news source within the meaning of subdivision (b) of section 79-h of the Civil Rights Law.

We agree with that portion of the County Court’s decision which held that the letter was outside the scope of the privilege since it was not a confidential communication. We find no merit in appellant’s contention that, since section 79-h does not explicitly state that the privilege applies only to confidential communications, no requirement of confidentiality exists. When section 79-h was signed into law by Governor Rockefeller, he cited the “ real and imminent threat ” of requiring “ the disclosure of information obtained by reporters in confidence (N. Y. Legis. Annual, 1970, p. 508.) Furthermore, the statute [7]*7has been interpreted to afford the privilege only where the information was received under a cloak of confidentiality. (See Matter of Wolf, 39 A D 2d 864.)

Historically, each of the several privileges recognized by our statutes rests upon a confidential relationship. We recognize that these privileges are exceptions to the general rule which requires disclosure to an authorized governmental body and must therefore be strictly construed. Confidentiality is here lacking. The author of the letter took pains to conceal his identity by signing the letter “ Weather. Underground ”, and to insure that appellant would obtain the letter without learning its author’s identity. Clearly, he was not willing to rely upon appellant to shield his identity from the authorities. He refused to establish a confidential relationship with appellant but preferred to talk with anyone who answered the phone.

Moreover, since the letter was left in a public telephone booth where it might have been found by anyone and turned over to the police, it is clear that the author could not have been relying upon appellant to withhold the letter itself.

Finally, appellant urges that the District Attorney has not demonstrated a need for the subpoena, wherefore it should be quashed. We disagree. The letter is sought as an aid to investigation of a serious crime, which is a sufficient basis for requiring it to be turned over to the authorities where not barred by statutory privilege.

The order should be affirmed, with costs.

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42 A.D.2d 5, 344 N.Y.S.2d 393, 1973 N.Y. App. Div. LEXIS 4222, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wbai-fm-v-proskin-nyappdiv-1973.

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