Shannon by Shannon v. Hansen, 90-615

• Decision Date: 17 April 1991
• Docket Number: No. 90-615,90-615
• Citation: 469 N.W.2d 412
• Parties: Jason SHANNON, Minor, by Ann K. SHANNON, His Parent, Guardian and Next of Friend, Appellee, v. Allan E. HANSEN and Joan C. Hansen d/b/a Second Chance Lounge and Gary Hellesheim and Judy Hellesheim d/b/a Gary's Place, Defendants, and State of Iowa ex rel. Col. Blaine Goff, Chief of the Iowa Department of Public Safety, Iowa State Patrol Division, Appellant. STATE of Iowa ex rel. Col. Blaine GOFF, Chief of the Iowa Department of Public Safety, Iowa State Patrol Division, Plaintiff, v. IOWA DISTRICT COURT, Defendant.
• Court: Iowa Supreme Court

Page 412

469 N.W.2d 412

Jason SHANNON, Minor, by Ann K. SHANNON, His Parent, Guardian and Next of Friend, Appellee, v. Allan E. HANSEN and Joan C. Hansen d/b/a Second Chance Lounge and Gary Hellesheim and Judy Hellesheim d/b/a Gary's Place, Defendants and State of Iowa ex rel. Col. Blaine Goff, Chief of the Iowa Department of Public Safety, Iowa State Patrol Division, Appellant STATE of Iowa ex rel. Col. Blaine GOFF, Chief of the Iowa Department of Public Safety, Iowa State Patrol Division, Plaintiff, v. IOWA DISTRICT COURT, Defendant.

No. 90-615.

Supreme Court of Iowa.

April 17, 1991.

As Corrected April 23, 1991.

Thomas J. Miller, Atty. Gen., Chris O'Dell and Gary L. Hayward, Asst. Attys. Gen., for appellant.

Donald L. Hagemann and Lucy J. Gamon of Hagemann, Goeke & Egli, Waverly, for appellee.

Considered by HARRIS, P.J., and LARSON, SCHULTZ, SNELL, and ANDREASEN, JJ.

ANDREASEN, Justice.

In a civil dramshop action, the plaintiff made application for release of confidential information and also served the chief of the Iowa Department of Public Safety, Iowa State Patrol Division, a subpoena duces tecum for production of written statements of witnesses taken in the course of an accident investigation. The State of Iowa filed a motion for a protective order. It claimed the statements were protected from disclosure. The application and motion were submitted to the district court. The State appeals from the court's failure to grant its motion. While the appeal was pending, the civil action was settled.

I. Background.

Charles Shannon died on June 22, 1988, as a result of injuries he received when the pickup he was driving overturned. A civil dramshop action was brought by his minor child, Jason Shannon. During the course of discovery, Shannon requested the state highway patrol furnish a copy of its investigative file. Members of the patrol had conducted an extensive investigation of the accident, including interviews with witnesses as to the decedent's activities at Gary's Place, the last tavern he visited that night, as well as persons who reside along the five-mile route between the tavern and the place of the accident. The patrol provided copies of the investigative officer's report, including drawings and photographs, but refused to provide copies of written statements taken by the officers in the course of the investigation.

Shannon then made application for an order requiring release of confidential information and served a subpoena duces tecum for the production of the witnesses' statements. The State filed a motion for protective order. It urged the statements were confidential and also subject to a qualified testimonial privilege. The court granted the State's motion regarding Shannon's request for the entire accident investigation file but denied the State's motion to protect production of the written witness statements taken in the course of the accident investigation. The State appealed from this part of the court's ruling.

II. Mootness.

Because the civil suit was settled, the plaintiff no longer seeks production of the witness statements. The issues raised in this appeal are academic. Generally, we do not consider an action if it is moot. Even so, we may decide to hear the case on grounds of public policy. Factors considered in making this determination include: (1) the public or private nature of the question, (2) the desirability of authoritative adjudication for the future guidance of public officials, and (3) the likelihood of future recurrence. First Nat'l Bank v. Heimke, 407 N.W.2d 344, 346 (Iowa 1987); Department of Gen. Servs. v. R.M. Boggs Co., 336 N.W.2d 408, 410 (Iowa 1983).

Having considered these factors, we conclude the issue should be addressed. Peace officers are frequently involved in the investigation of motor vehicle accidents. They often interview persons who are involved in the accident or who have knowledge of the facts and circumstances relating to the accident. Both civil and criminal suits may follow. Additional guidance should be provided to avoid the cost and delay of extended court proceedings. It is likely the issues raised in this appeal will be raised in the future.

III. Scope of Review.

Because the Iowa State Patrol is not a party to the underlying action, the proper form of review is by certiorari. Iowa R.App.P. 303, 304. Certiorari lies when the district court has acted illegally. Iowa R.Civ.P. 306. Illegality exists when the court has not applied the proper rule of law. Iowa Freedom of Information Council v. Wifvat, 328 N.W.2d 920, 922 (Iowa 1983) (citing Hightower v. Peterson, 235 N.W.2d 313, 317 (Iowa 1975)). Although the case is brought to us on appeal, we proceed as though a petition for a writ of certiorari were filed. Iowa R.App.P. 304; Hearity v. Iowa Dist. Court, 440 N.W.2d 860, 862 (Iowa 1989).

IV. Confidentiality of Witness Statements.

The State urges witness statements are protected from disclosure to private litigants because of Iowa Code sections 22.7 and 622.11 (1989). These statutory provisions were thoroughly reviewed in State ex rel. Shanahan v. Iowa District Court, 356 N.W.2d 523 (Iowa 1984). In Shanahan, we concluded subsection 68A.7(5), now subsection 22.7(5), providing for confidentiality of peace officers' reports, and section 622.11, creating a public officer privilege for communications, are two expressions of essentially the same legislative purpose with regard to DCI files. Id. at 528. In Shanahan we identified three tests which the State must satisfy to establish the privilege. They require that (1) a public officer is being examined, (2) the communications made to the officer were in official confidence, and (3) the public interests would suffer by disclosure. Id. at 527. There is no quarrel that the first test was met. The trial court found the State had not met its burden as to the second and third tests.

The key requirement of the second test is that the communication is made to the officer in "official confidence." Under Iowa Code section 22.7, certain public records are kept confidential. The statutory word "records" include records, documents, tapes, or other information. Iowa Code § 22.1. Included in the list of public records that shall be kept confidential are peace officers' investigative reports, except where disclosure is authorized elsewhere in the Code. Iowa Code § 22.7(5).

Both the driver of a vehicle involved in an accident resulting in injury or death of any person and a law officer who, in the regular course of duty, investigates a motor vehicle accident have a duty to file an accident report with the Iowa Department of Transportation (DOT). Iowa Code § 321.266. The report filed by the driver is confidential while the report filed by a law enforcement officer is available to any party to the accident and to certain others. Iowa Code § 321.271. Copies of the accident reports filed as required by section 321.266 which are retained by the patrol division of the Iowa Department of Public Safety are also available. 661 Iowa Admin.Code § 1.4(5). Under this regulation and Iowa Administrative Code subsection 1.4(6), Shannon was furnished a copy of the DOT report and the patrol officer's report regarding observations, measurements, and examinations of physical evidence including photographs.

Relying upon section 321.271 as amended in 1967 and our opinion...