State ex rel. Shanahan v. Iowa Dist. Court for Iowa County

• Decision Date: 17 October 1984
• Docket Number: No. 83-726,83-726
• Citation: 356 N.W.2d 523
• Parties: STATE of Iowa, ex rel. Gerald SHANAHAN, Director, and Lawrence Goepel, Special Agent, Iowa Department of Public Safety, Division of Criminal Investigation, Plaintiff, v. IOWA DISTRICT COURT FOR IOWA COUNTY, Defendant.
• Court: Iowa Supreme Court

Page 523

356 N.W.2d 523

STATE of Iowa, ex rel. Gerald SHANAHAN, Director, and Lawrence Goepel, Special Agent, Iowa Department of Public Safety, Division of Criminal Investigation, Plaintiff, v. IOWA DISTRICT COURT FOR IOWA COUNTY, Defendant.

No. 83-726.

Supreme Court of Iowa.

Oct. 17, 1984.

Thomas J. Miller, Atty. Gen., and Gary L. Hayward, Asst. Atty. Gen., for plaintiff.

James R. Snyder and Mark E. Liabo of Simmons, Perrine, Albright & Ellwood, Cedar Rapids, for defendant.

Considered by REYNOLDSON, C.J., and McCORMICK, McGIVERIN, CARTER and WOLLE, JJ.

WOLLE, Justice.

In this original certiorari proceeding, we must decide whether the district court erred in requiring the State to produce a criminal investigation file for inspection by certain civil litigants. The State contends its file is protected by a qualified governmental privilege. Balancing the State's interest in confidentiality against the private litigants' interest in exhaustive discovery, we conclude that the circumstances here weigh heavily in the State's favor. We therefore sustain the writ of certiorari, holding that the State need not disclose the contents of its file.

The question of access to government records which we here decide arises from a wrongful death action which followed in the aftermath of a double homicide in a motel room. On September 13, 1980, the bodies of Roger Atkison and Rose Burkert were found in a room at the Amana Holiday Inn, the apparent victims of a brutal murder. State criminal investigators have intensively searched for clues to the murder, but the ongoing investigation has not yet been completed and no charges have yet been filed. In August of 1982, the administrator of Atkison's estate filed a wrongful death action against Holiday Inns, Inc. and its motel operator Amana Nordstrom, Inc., contending that those defendants negligently failed to secure the motel room and thereby proximately caused Atkison's death.

The parties litigating the wrongful death action then sought discovery of the State's files concerning the ongoing homicide investigation. At the administrator's request, the district court initially issued a subpoena duces tecum to a division head at the Iowa Department of Public Safety, compelling production of the entire investigatory file. Following negotiation of a temporary accommodation, however, the State agreed to furnish to the civil litigants its officers' narratives regarding the crime scene, statements of medical examiners, the statement of a locksmith engaged by the State, and also lists of guests and employees who were staying at the motel on the night in question. The litigants reserved the right to seek further discovery, while the State reserved its right to claim privilege should other information be sought.

Thereafter, at the request of the defendants in the civil action, the court issued a second subpoena duces tecum to a special agent of the Iowa Department of Criminal Investigation (DCI) directing him to produce at a deposition all of the agency's file materials pertaining to the alleged murder. The State promptly filed a motion for a protective order which included a request that the court limit discovery to those materials already furnished by the State. The court, however, permitted considerably more discovery, requiring the State to produce for viewing by counsel summaries of each of the seven large volumes of file contents, the statements given to state agents by persons who had occupied nearby rooms, and information pertaining to the condition of the lock on the motel room door. The court also gave the litigants' attorneys permission to examine the contents of the entire file and designate those additional materials which they wished to submit to the court for in camera inspection and potential later production by the State.

The district court's order, which partially sustained and partially denied the State's motion for a protective order, referred only to the documents which had been subpoenaed and did not address the State's request that the special agent's deposition testimony be restricted. Consequently our focus in this certiorari action is on the documents in the DCI criminal investigation file. Despite the State's claim of privilege, the district court found the DCI file fully discoverable by the litigants in the civil action and their attorneys.

I. Scope of Review of Issues Decided.

Certiorari lies when the district court has exceeded its jurisdiction or has acted illegally. Iowa R.Civ.P. 306; State v. West, 320 N.W.2d 570, 573 (Iowa 1982); Hadjis v. Iowa District Court, 275 N.W.2d 763, 765 (Iowa 1979). Illegality exists when the findings on which the court has based its conclusions of law do not have substantial evidentiary support or 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); Hightower v. Peterson, 235 N.W.2d 313, 316-17 (Iowa 1975).

The State here challenges the district court's application of the law to essentially undisputed facts. The issue of law concerns the permissible scope of discovery in a civil action in the face of a claim of privilege. Ordinarily, the district court has wide discretion in ruling upon the discoverable nature of requested information and will not be reversed in the absence of an abuse of discretion. Farnum v. G.D. Searle & Co., 339 N.W.2d 384, 389 (Iowa 1983); Pollock v. Deere and Co., 282 N.W.2d 735, 738 (Iowa 1979). Consequently, here we must determine whether the trial court abused its discretion and thereby acted illegally within the meaning of rule 306 in permitting the civil litigants access to privileged materials and permitting their attorneys to inspect the entire DCI file.

Both here and before the district court the State has asserted a two-level governmental privilege. It first contends that it need not disclose DCI file materials by reason of an executive privilege, derived from the doctrine of separation of powers in both our State and federal constitutions. See Iowa Const. Art. III, § 1; U.S. Const. Art. I, § 1; Art. II, § 1; Art. III, § 1; United States v. Nixon, 418 U.S. 683, 706, 94 S.Ct. 3090, 3106, 41 L.Ed.2d 1039, 1062 (1974) ("[T]he privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties."). See generally C. McCormick, Law of Evidence §§ 143-50 (1954 ed.); 8 J. Wigmore, Evidence §§ 2367-79 (McNaughton rev. ed. 1961); Annot., 10 A.L.R. 4th 355 (1981) (discussion of state law of executive privilege).

At a second level, the State contends that the confidential and privileged status of the DCI file is grounded on specific Iowa statutes. We first address and decide the second of these alternative theories of governmental privilege, because we prefer to address constitutional issues only when other grounds are not dispositive. George H. Wentz, Inc. v. Sabasta, 337 N.W.2d 495, 498 (Iowa 1983); Hines v. Illinois Central Gulf Railroad, 330 N.W.2d 284, 286 (Iowa 1983); see United States v. Reynolds, 345 U.S. 1, 6, 73 S.Ct. 528, 531, 97 L.Ed.2d 727, 732 (1952) (executive privilege, a broad proposition with constitutional overtones, need not be addressed when case can be decided on narrower ground).

Because the State's statutory claim of privilege is dispositive of this appeal, we need not reach the constitutional issue of executive privilege. Consequently our review by certiorari is at law, not the de novo review which an issue of constitutional magnitude would require. See Hightower v. Peterson, 235 N.W.2d at 316-17.

II. Qualified Privilege Under Iowa Code Section 622.11.

The State asserts that Iowa Code section 622.11 (1983) protects its criminal investigation files from disclosure to private litigants. That statute provides:

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

Section 622.11 is identical in wording to statutes of several other states, but neither our court nor appellate courts in those states have decided the question of statutory interpretation and application which is here presented. See 8 J. Wigmore, supra, § 2378, at n. 9 (listing illustrative statutes). In general the statute is designed to protect "matters affecting the affairs of the state, as state secrets, and communications by informers." Thaden v. Bagan, 139 Minn. 46, 51, 165 N.W. 864, 865-66 (1917) (dictum). The interest of the public--public safety--is at stake, not the interest of the officer or the person communicating in confidence. State v. Hoben, 36 Utah 186, 198, 102 P. 1000, 1004-05 (1909); accord Agnew v. Agnew, 52 S.D. 472, 480-81, 218 N.W. 633, 636-37 (1928).

Even though our court has not previously interpreted this statutory privilege, the wording of the statute is sufficiently clear to enable us to describe its reach in this case. First, the cloak of protection extends only to a public officer being "examined" and prohibits "disclosure" of the protected information. Second, the protection is limited to "communications" made to the officer "in official confidence." Finally, this is not an absolute but rather is a qualified privilege, applying only "when the public interests would suffer by the disclosure." We must separately determine whether the State has shown that the circumstances of this case satisfy each of these three tests.

A. When May the Governmental Privilege Be Invoked? The first question presented by the wording of section 622.11 is whether it may be invoked by the State at any stage of a proceeding or only to prevent disclosure of privileged information during trial. The physician-patient privilege, for example, protects only against the disclosure of confidential communications when the physician is "giving testimony." Iowa Code § 622.10 (1983); see Chidester v. Needles, 353 N.W.2d 849, 851 (Iowa 1984); State v. Munro, 295 N.W.2d 437, 443 (Iowa ...