Reporter's conversations ruled private

Judge says Shaw protected from deposition

by Richard Nangle
TELEGRAM & GAZETTE STAFF
October 3, 2003

WORCESTER- A local reporter will not have to testify about private conversations she had with a Shrewsbury man about his sexual abuse lawsuit against Auxiliary Bishop George E. Rueger, according to a ruling by Superior Court Judge C. Brian McDonald.

Telegram & Gazette reporter Kathleen A. Shaw had been subpoenaed by the Worcester Catholic Diocese to bring with her to a deposition "any and all correspondence, notes, memoranda, photographs, charts, drawings and any and all materials" in her possession regarding plaintiff Sime J. Braio, Bishop Rueger, lawyer Daniel J. Shea of Houston, and the allegations made against the auxiliary bishop by Mr. Braio.

In an eight-page ruling, Judge McDonald noted that while there are no laws or court precedents protecting Massachusetts news reporters, under common law principles, "courts afford journalists a measure of protection from discovery initiatives in order not to undermine their ability to gather and disseminate information. Journalists are the personification of a free press, and to withhold such protection would invite a chilling effect on speech ... and thus destabilize the First Amendment.

"As demonstrated by Shaw's affidavit, the effect of even threatened disclosure has already chilled Shaw's relationship with her sources, who are understandably less confident that Shaw will be able to honor her pledges of confidentiality," Judge McDonald said. "Compelled disclosure would undeniably compromise not only Shaw's, but other reporters' ability to gather and disseminate information about religious matters in and around Worcester."

The Worcester diocese contended Massachusetts law did not protect Ms. Shaw from having to testify and turn over her notes.

The Telegram & Gazette argued Massachusetts courts have ruled reporters are not required to testify unless the value of their testimony "outweighs the inevitable interference with the functioning of the free press."

The newspaper maintained the Massachusetts Constitution and common law protects reporters from having to reveal the contents of their confidential conversations with sources. It also questioned whether the information the diocese sought from Ms. Shaw was available through another source.

The newspaper said Ms. Shaw's published reports on the Braio case were gleaned from the lawsuit itself and not from any confidential conversations with Mr. Braio.

Diocesan lawyer James G. Reardon said he needed to know details about conversations Ms. Shaw was having with Mr. Braio as far back as February 2002. The diocese alleges Mr. Braio threatened to go public with his charge against Bishop Rueger unless the diocese paid him a sum of money.

The newspaper claimed that requiring Ms. Shaw's testimony would impede her ability to protect confidential, unpublished information and would intrude upon the editorial process.

The diocese countered Massachusetts does not have a press shield law and the state Supreme Judicial Court is on record as refusing to create one.

Judge McDonald said the newspaper had an obligation to show that disclosure of Ms. Shaw's conversations with Mr. Braio would be damaging.

"Shaw's affidavits demonstrate that her conversations with Braio were premised upon her promise not to disclose the substance of the conversations. Absent any evidence that Shaw has published the substance of those conversations, I conclude that they are confidential," he said.

"Moreover, Shaw's affidavits support her claim that disclosure of her confidential communications with Braio would impair her ability to investigate and report on religious issues in the Worcester area," he said. "With this showing, T&G and Shaw have satisfied the threshold test."

Judge McDonald said the diocese can seek testimony from numerous other sources and that, "compelled testimony by Shaw would amount to no more than needless disclosure of confidential relationships."

The diocese has deposed James J. Gribouski, a Worcester lawyer who once represented Mr. Braio but who declined to file suit against Bishop Rueger on Mr. Braio's behalf. Mr. Gribouski made that decision after receiving a letter from a psychiatrist who evaluated Mr. Braio and concluded his symptoms could not be related to sexual abuse.

Ms. Shaw has interviewed Mr. Braio and written several news accounts of the lawsuit.

Mr. Braio's lawsuit alleges Bishop Rueger, then a parish priest, began sexually molesting him in the early 1960s when he was 13. The suit alleges that the abuse resulted in behavior that landed Mr. Braio, now 53, in the former Lyman School for Boys in Westboro.

The diocese says its own investigation cleared Bishop Rueger of any wrongdoing. Worcester District Attorney John J. Conte has said his office and state police investigators could not substantiate the charges.

The diocese says, on at least three occasions, Mr. Braio attempted to extort up to $10,000 from church officials in exchange for his silence on the matter. Mr. Conte's office is investigating the diocese's accusations of extortion attempts.

On Sept. 10, Judge Leila Kern dismissed all of Mr. Braio's claims against the diocese.