Hawk Eye v. Jackson, 93-666

• Citation: 521 N.W.2d 750
• Decision Date: 21 September 1994
• Docket Number: No. 93-666,93-666
• Parties: 22 Media L. Rep. 2475 The HAWK EYE and William Mertens, Appellees, v. Patrick C. JACKSON, Appellant, Iowa Department of Public Safety, Intervenor-Appellant.
• Court: United States State Supreme Court of Iowa

Page 750

521 N.W.2d 750

22 Media L. Rep. 2475

The HAWK EYE and William Mertens, Appellees, v. Patrick C. JACKSON, Appellant Iowa Department of Public Safety, Intervenor-Appellant.

No. 93-666.

Supreme Court of Iowa.

Sept. 21, 1994.

Bonnie J. Campbell, Atty. Gen., and Jeffrey D. Farrell, Asst. Atty. Gen., for appellants.

Gene R. Krekel and H. Craig Miller of Hirsch, Adams, Krekel, Putnam & Cahill, Burlington, for appellees.

Susan M. Boe and Michael A. Giudicessi of Faegre & Benson, Des Moines, for amicus curiae Iowa Freedom of Information Council.

Considered by McGIVERIN, C.J., and HARRIS, LAVORATO, NEUMAN, and TERNUS, JJ.

NEUMAN, Justice.

This appeal concerns a county attorney's refusal to produce an Iowa Division of Criminal Investigation file for inspection by a newspaper. After weighing the interests of the public on the issue, the district court ordered the official to turn over the file. We affirm.

In the spring of 1991, Steve Sands, a reporter for the Burlington newspaper, The Hawk Eye, wrote a series of articles aimed at local reaction to the highly publicized beating of Rodney King by Los Angeles police officers. As a part of the series, Sands interviewed local law enforcement officials about whether allegations of excessive force had ever been lodged against a member of the Burlington police department. During one of these interviews, Sands learned of a possible civil suit against police officer Michael Swore. Sands approached police chief Wendell Patton for his comment regarding the suit. Patton, previously unaware of the allegations viewed the charges as serious and immediately requested an independent investigation by the Iowa Division of Criminal Investigation (DCI). Patton sought to determine whether Swore had engaged in criminal conduct or had violated departmental rules and regulations.

DCI special agent Wade Kisner took on the assignment. Because the allegations related to an incident that occurred nearly two years earlier, Kisner's report consisted entirely of notes taken in connection with witness interviews. It did not include his personal impressions or conclusions regarding whether any official action should be taken against Swore.

The report was forwarded to both Patton and county attorney Patrick Jackson. Based solely on the report, Patton concluded that Swore had breached no departmental rules or regulations. Jackson agreed and further determined that insufficient evidence existed to warrant prosecution for assault.

After these decisions were made, William Mertens, publisher of The Hawk Eye, requested a copy of the DCI report from Jackson. Jackson refused to produce it. The newspaper then sought a writ of mandamus compelling Jackson to make the report available. The Iowa Department of Public Safety intervened on Jackson's behalf.

Prior to hearing on the writ, the civil suit against Swore and the City of Burlington went to trial. Most of the witnesses at trial were the same persons interviewed by Kisner for the DCI report. Sands reported daily on the evidence and testimony presented. During the trial, a second allegation of brutality by Swore surfaced. The Hawk Eye investigated and reported on this allegation as well; a separate suit on the matter eventually settled without trial. As to the initial claim, the jury ultimately returned a verdict for damages against Swore and the city.

At the subsequent hearing on the writ of mandamus, the newspaper argued that public access to the DCI report was the only means of reconciling Patton and Jackson's decision not to discipline or prosecute Swore with the jury's arguably contrary findings against him. Without disclosure of the facts upon which the officials made their decision, the newspaper argued, the potential for a cover-up existed. Jackson resisted on the ground that neither this DCI report, nor any other, warranted release in the public interest. His argument rested on a number of DCI concerns: assuring informant confidentiality, encouraging future cooperation with the DCI, protecting persons from speculative or potentially libelous revelations, and preventing a landslide of disclosure requests by the media.

The district court found that the DCI report was protected by a qualified privilege. It concluded, however, that any harm to the public interest caused by the report's disclosure was substantially outweighed by the public interest in disclosure. Subject to the deletion of certain criminal history data, the court ordered Jackson to make the report available to the newspaper. This appeal followed.

I. Because mandamus is an equitable action, our review on appeal is de novo. Iowa Code § 661.3 (1993); Nowlin v. Scurr, 331 N.W.2d 394, 396 (Iowa 1983). We give weight to the district court's fact-findings but are not bound by them. Id.

II. Jackson and the Department of Public Safety rest their case for nondisclosure on Iowa Code sections 22.7 and 622.11. Section 22.7 states in pertinent part:

The following public records shall be kept confidential, unless otherwise ordered by a court, by the lawful custodian of the records, or by another person duly authorized to release such information:

....

5. Peace officers' investigative reports, except where disclosure is authorized elsewhere in this Code. However, the date, time, specific location, and immediate facts and circumstances surrounding a crime or incident shall not be kept confidential under this section, except in those unusual circumstances where disclosure would plainly and seriously jeopardize an investigation or pose a clear and present danger to the safety of an individual.

(Emphasis added.) Section 622.11 reads:

A public officer cannot be examined as to communications made to the public officer in official confidence, when the public interests would suffer by the disclosure.

In State ex rel. Shanahan v. Iowa District Court, 356 N.W.2d 523, 528 (Iowa 1984), we observed that these two statutory provisions express essentially the same legislative purpose with respect to DCI files: assurance to all persons upon whom law enforcement officials rely that "official confidentiality attends their conversations and may protect from public access the officers' reports of what they have said." Id. The privilege cloaking these communications, however, is qualified, not absolute. Id. at 527. An official claiming the privilege must satisfy a three-part test: (1) a public officer is being examined, (2) the communication was made in official confidence, and (3) the public interest would suffer by disclosure. Id. at 527; accord Shannon v. Hansen, 469 N.W.2d 412, 414 (Iowa 1991).

Only the third part of the test concerns us here. Determining where the line falls between public harm and public good requires weighing the relative merits...