(concurring) — Chief Judge Andersen has written an exhaustive and highly persuasive opinion based upon public policy and historical grounds. His conclusion that the newspaper should be afforded an absolute privilege against disclosure, however, need not be reached in order to dispose of the case before us. I would hold instead that, because Rinaldo failed to meet the threshold requirements to compel an in camera review, let alone disclosure, the trial court abused its discretion and must be reversed.
In both Senear v. Daily Journal-American, 97 Wn.2d *103148, 641 P.2d 1180 (1982) and Clampitt v. Thurston Cy., 98 Wn.2d 638, 658 P.2d 641 (1983), the Supreme Court reserved the question of the scope of the constitutional privilege under article 1, section 5, because the journalists were entitled to relief on narrower common law grounds.19 In these cases, the court established criteria for determining if discovery should be allowed. In Clampitt, the court stated:
The party seeking discovery may defeat the privilege by showing that (1) his or her claim is meritorious; (2) the information sought is critical to that claim; and (3) he or she has made a reasonable effort to obtain the information by other means. Senear, at 155.
Clampitt, at 642. It also noted that the Senear standards should be applied more stringently where, as here, the newspaper is not a party. These standards are consistent with those recently imposed in other jurisdictions. See State v. Siel, 122 N.H. 254, 444 A.2d 499, 503 (1982); State ex rel. Green Bay Newspaper Co. v. Circuit Court, Branch 1, Brown Cy., 113 Wis. 2d 411, 335 N.W.2d 367 (1983). These cases not only adopt similar procedures for disclosure, but express the need to limit disclosure to situations in which virtually no other relief can be substituted. The indisputable value of maintaining reporter/informant confidentiality has already been discussed at length in the majority opinion.
Applying Senear/Clampitt criteria to this case, it is clear that disclosure was improvidently granted.20 First, there was insufficient showing that the material sought was criti*104cal or necessary to Rinaldo's claim. The affidavit in support of the motion to disclose was worded in the broadest possibilities. There was no showing of likelihood that The Herald files contained exculpatory material, or that they would be valuable for purposes of impeachment. Indeed, the impeachment value of the claimed material appears to be tenuous, at best, with respect to resolution of Rinaldo's guilt or innocence. The speculative nature of Rinaldo's request for disclosure was insufficient to overcome even a qualified privilege and amounts to nothing more than a fishing expedition.
Second, the substantial requirement that reasonable alternative sources be exhausted was neither met nor adequately explored. Rinaldo's counsel had not even interviewed the prosecution's witnesses to determine if they would deny prior statements, make such statements available, or even be allowed to testify. There was, simply, no showing that the newspaper had unique access to the questioned material.
Under these circumstances, and noting the admonition that "the magnitude of the interests involved requires close appellate supervision of [a trial court's] discretion", Clampitt, at 644,1 conclude that the showing offered by Rinaldo in support of disclosure was wholly inadequate, that the order for an in camera review should be reversed, and the subpoena quashed.
Senear v. Daily Journal-American, 97 Wn.2d 148, 641 P.2d 1180 (1982) and Clampitt v. Thurston Cy., 98 Wn.2d 638, 658 P.2d 641 (1983) are, of course, civil cases and, as such, not direct precedent. However, I can see no reason why those cases should not apply here. It might be suggested that, in balancing a common law right against the constitutional right of a fair trial, the Senear/Clampitt criteria should be weakened in favor of the criminal defendant. I am unaware of authority for such an argument and choose not to create any.
In fairness, it must be added that neither Senear nor Clampitt were available to the trial court, having been decided recently during the appeal process.