Petition — Brown v. Johnston

Vm &U UYU

NO.

Office - Supreme Court, U.S.

FILED

MAY 9 1983

IN THE SUPREME COURT OF THE UNI

OCTOBER TERM, 1982

STEVEN BROWN, and

BOARD OF TRUSTEES OF THE PUBLIC

LIBRARY OF DES MOINES, IOWA,

"ACEXANDOCH L. STEVAS,

ole felt K

Petitioner,

Ve

DAN L. JOHNSTON, Polk County Attorney,

and GERALD SHANAHAN, Chief, Division of

Criminal Investigation of the Iowa

Department of Public Safety, State of

Iowa,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF IOWA

PHILIP T. RILEY

Corporation Counsel

East lst & Locust

Des Moines, IA

(515) 283-4130

50307

Counsel for Petitioner

Of Counsel:

LOUISE M. JACOBS

Assistant City Attorney

East lst & Locust

Des Moines, IA 50307

ae

QUESTIONS PRESENTED

Whether patrons of a public library

are afforded constitutional protec-

tion from disclosure of their iden-

tities, as borrowers of any of 106

books, to the State pursuant to a

preliminary investigation of cattle

mutilations?

What kind of showing must the State

make in order to compel disclosure

of the identities of all library

Patrons who, while exercising their

First Amendment rights as incorpo-

rated by the Fourteenth Amendment,

had ever borrowed any of 106 differ-

ent books from the public library?

Whether the ex parte procedure under

Rule 5(6) of the Iowa Rules of Crim-

inal Procedure as interpreted by the

Supreme Court of Iowa is unconstitu-

ind

tional because it sweeps too broadly

in its impact on First Amendment

rights as incorporated by the Four-

teenth Amendment when the State, pur-

suant to a preliminary investigation

of cattle mutilations, may under

Rule 5(6) without any showing at all,

compel disclosure of all library

patrons who have at any time bor-

rowed any of 106 different library

books?

-lii-

TABLE OF CONTENTS

Page

Wabhie OF AGEHOTTEISGBscccccecsccece ERI

Opinion TO. cc abedecececeseesn 2

PERT OO TON. gc ccahetsececceeces 2

Constitutional and Statutory

Provisions Involved.......... 3

Statement GE te COBB ccccccsceces 5

Reasons for Granting the Writ.... 10

ee i ieaheeseenseee 18

APPENdLX.cccccccccccccccccccccces Al

TABLE OF AUTHORITIES

Cases

Page

Gibson v. Florida Legislative

Investigation Committee,

372 U.S. 539 CEOs) seseeceee< L3,15

Griswold v. Connecticut,

Bee OL. OFe CARs) oscccevvese 16,11,

. 12,46

Lamont v. Postmaster General,

SGt U.8. SOL CE9SS) ceccccecee 16,41

Page

Martin v. Struthers,

319 0.8. 141 CEES) bbe cunceede 10

NAACP v. Alabama,

Bat @ we BES CLOSE) cnccccscee kdolkie

15,16

Shelton v. Tucker,

wee Gomes Ste CISGG) co cscccecs 16

Sweezy v. State of New

Hampshire,

Bee Oeme BOO (1957) cccncacces 326)3,

15

Talley v. California,

Bee Gee Oe LISCO) ccccwccccee 12,17

Thomas v. Collins,

San Gems SEO CLSES) ccccccccce 18

U.S. v. Rumeley,

mee Gem Oe CESSES) cc céenceese J

NO.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

STEVEN BROWN, and

BOARD OF TRUSTEES OF THE PUBLIC

LIBRARY OF DES MOINES, IOWA,

Petitioner,

¥.

DAN L. JOHNSTON, Polk County Attorney,

and GERALD SHANAHAN, Chief, Division of

Criminal Investigation of the Iowa

Department of Public Safety, State of

Iowa,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF IOWA

The petitioner Board of Trustees of

the Public Library of Des Moines, Iowa

respectfully prays that a writ of cer-

tiorari issue to review the judgment and

opinion of the Supreme Court of Iowa

entered in this proceeding on January

tes

19, 1983 and the order of the Supreme

Court of Iowa denying a rehearing which

was entered on February 10, 1983,

OPINIONS BELOW

The trial court entered a written

unpublished judgment. The opinion of

the Supreme Court of Iowa was reported

at 328 N.W.2d 50. (Al-Al5). The denial

of rehearing, unpublished, was by order

of Supreme Court of Iowa en banc. (Al6-

Al7).

JURISDICTION

The judgment of the Supreme Court of

Iowa was entered January 19, 1983. A

timely application for rehearing was

filed on February 2, 1983 and was denied

on February 10, 1983. By the denial of

the petitioner's application for rehear-

ing, the opinion and judgment of the

on Fons

Supreme Court on January 19, 1983 became

the final judgment of the highest court

of the State of Iowa.

This petition for certiorari is

timely filed within 90 days of the

aforesaid denial of rehearing. This

Court's jurisdicticn is invoked under 28

U.S.C. §1257(3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Constitution of the United States:

Fourteenth Amendment.

Section 1. .. . nor shall any

state deprive any person of

life, iliberty, or property,

without due process of law; ...

First Amendment.

Congress shall make no law re-

specting an establishment of

religion, or prohibiting the

free exercise thereof; or a-

bridging the freedom of speech,

or the press; ...

Statutes:

Rule 5(6) of Iowa Rules of Criminal

Procedure.

Investigation by prosecuting

attorney. The clerk of the dis-

trict court, on written appli-

cation of the prosecuting attor~

ney and the approval of the

court, shall issue _ subpoenas

including subpoenas duces tecum

for such witnesses as the pros-

ecuting attorney may require in

investigating an offense, and

in such subpoenas shall direct

the appearance of said wit-

nesses before the prosecuting

attorney at a specified time

and place. Such application

and judicial order of approval

shall be maintained by the

clerk in a confidential file

until a charge is filed, in

which event disclosure shall be

made, unless the court in an in

camera hearing orders that it

be kept confidential. The

prosecuting attorney shall have

the authority to administer

oaths to said witnesses and

shall have the services of the

clerk of the grand jury in

those counties in which such

clerk is regularly employed.

The rights and responsibilities

of such witnesses and any pen-

alties for violations thereof

shall otherwise be the same as

a witness subpoenaed to the

grand jury.

= Sen

STATEMENT OF THE CASE

On November 27, 1979, a county at-

torney's subpoena duces tecum, under

Rule 5(6) of the Iowa Rules of Criminal

Procedure, was directed to the custodian

of records of the Des Moines Public Li-

brary. The subpoena was not restricted

to time nor did it define with particu-

larity any records or individuals; it

directed the custodian of records to

appear before the District Court with

all records of persons who had checked

out any books represented by fifteen

different call numbers and one fictional

book. The library had one hundred six

different volumes represented by the

call numbers.

The Des Moines Public Library does

not compile information pertaining to

who may have used a particular book.

Records of transactions are kept only to

a

determine whether borrowed materials are

timely returned. The library would have

to review one million, one _ hundred

thirty-nine thousand, one hundred forty-

one (1,139,141) transactions if the sub-

poena had been restricted only to the

business year 1978-1979.

The application for the county at-

torney's subpoena duces tecum stated the

purpose of the requested for information

is "[t]hat the State of Iowa is current-

ly investigating numerous mutilations of

domestic animals" and that "to complete

said investigation" the Department of

Criminal Investigation and Polk County

Attorney's Office need the library

records requested.

On November 29, 1979, library patron

Steven Brown filed a petition in the

District Court for Polk County request-

= Fu

ing declaratory and injunctive relief

naming the Public Library of Des Moines

Board of Trustees (hereinafter library

board) and Gerald Shanahan as Director

of the Division of Criminal Investiga-

tion of the State of Iowa as defendants.

Subsequently, the library board = on

November 30, 1979 then filed a petition

against Dan L. Johnston, Polk County

Attorney, State of JIowa, and Gerald

Shanahan. On January 22, 1980, the two

actions were consolidated, recasting the

library board as a plaintiff.

Steven Brown and the library board

argued to the trial court for the follow-

ing matters: 1) that constitutionally

protected rights were violated by the

subpoena procedure; 2) that disclosure

of the information sought was an unwar-

ranted invasion of the patrons' right to

af

privacy; 3) that substantial loss of

freedom of expression and pursuit of

constitutionally protected First Amend-

ment activity would result by the en-

forcement of the subpoena; 4) there

would be a chilling effect upon the ex-

ercise of First and Fourteenth Amendment

rights.

A hearing was held by the trial

court on June 12, 1981. At the hearing,

evidence was introduced by the plain-

tiffs, but the defendants declined to

offer any evidence. The trial court

filed a final judgment on September 17,

1981, denying the relief sought. An

appeal was taken from the Iowa District

Court for Polk County to the Supreme

Court of Iowa.

Steven Brown and the library boaré

asserted in their appeal to the Supreme

nas

Court of Iowa that federal constitution-

al rights afforded library patrons pro-

tection from disclosure of the informa-

tion sought. The Iowa Supreme Court ad-

dressed the federal constitutional issue

and held that a constitutional protected

right of privacy in library’ records does

not exist. "The State's interest in

well-founded criminal charges and fair

administration of criminal justice must

be held to override the claim of privi-

lege here." (A114).

The library board, in it's petition

for rehearing, asserted that the State

had failed to meet the showing necessary

under principles of law established by

this Court; that the Iowa Supreme

Court's interpretation of Rule 5(b) of

the Iowa Rules of Criminal Procedure

sweeps too broadly in its impact on con-

at G~u

stitutionally protected rights. The

petition was summarily denied. (Al16-Al7).

REASONS FOR GRANTING THE WRIT

1. The Iowa Supreme Court's inter-

pretation of Rule 5(6) of the

Iowa Rules of Criminal Procedure

allowing the compelled disclo-

sure of the identities of li-

brary patrons will have a chill-

ing effect on the exercise of

First Amendment rights of li-

brary patrons.

This Court has long recognized that

the First Amendment encompasses more

than free expression. Not only does it

protect the right to disseminate infor-

mation but also the individual's right

to receive information. Martin v.

Struthers, 319 U.S. 141 (1943); Thomas

v. Collins, 323 U.S. 516 (1945): Lamont

v. Postmaster General, 381 U.S. 301

(1965); Griswold v. Connecticut, 381 U.

S. 479 (1965). To hold otherwise would

atts

mean that rights explicitly granted in

the Constitution would have no effect.

Lamont v. Postmaster General, supra, at

308, (Brennan, J., concurring).

Protection of the right to receive

information is essential to having an

informed citizenry in the exercise of

their First Amendment rights. "The

right of freedom of speech and press

includes not oniy the right to utter or

to print, but the right to distribute,

the right to receive, the right to read

[cite omitted] and freedom of inquiry,

freedom of thought, and freedom to teach

[cites omitted]...." Griswold v. Con-

necticut, supra, at 482. The Des Moines

Public Library provides its patrons the

opportunity to exercise their rights to

read, to inquire, and to educate them-

selves. "Teachers and students must

ad a

always remain free to inquire, to study

and to evaluate, to gain new maturity

and understanding...." Sweezy v. State

Of New Hampshire, 354 U.S. 234 (1957).

The exercise of these freedoms, which

are essential for all, must be afforded

a measure of privacy. In recognition of

this, the Board of Trustees of the

Public Library, pursuant to a longstand-

ing policy, prohibits the release of

information regarding a patron's reading

choices.

This Court has recognized a right to

anonymity in the exercise of First Amend-

ment rights. NAACP v. Alabama, 357 U.S.

449 (1958); Talley v. California, 362 U.

S. 60 (1960). "In other words, the

First Amendment has a penumbra where

privacy is protected from governmental

intrusion." Griswold _v. Connecticut,

nd Bue

supra, at 483. If the protection of pri-

vacy is not afforded, many persons are

likely to be inhibited from exercising

fully their First Amendment rights.

Conflicts between investigatory

needs and First Amendment rights with

the concomitant anonymity concerns have

already been before the Court. E.ge,

NAACP v. Alabama, supra; Gibson v.

Florida Legislative Investigation Commit-

tee, 372 U.S. 539 (1963); Sweezy v. New

Hampshire, 354 U.S. 234 (1957). Moreover

the Court recognized without deciding

that serious First Amendment concerns

were raised when a committee of Congress

sought to compel the disclosure of the

names of those who had made bulk pur-

chases of books.

The decision below allows the State

-14-

to unreasonably interfere with the li-

brary patron's constitutionally protect-

ed right to read and study the books and

periodicals of his or her own choosing.

Moreover, the decision subjects the pa-

tron's reading interests to scrutiny by

the State. The threat of becoming a

suspect in an investigation merely be-

cause of one's reading choices will

chill the exercise of First and Four-

teenth Amendment rights.

2. The Iowa Supreme Court's inter-

pretation of the ex parte proce-

dure under Rule 5(6) of the Iowa

Rules of Criminal Procedure

allowing the compelled disclo-

sure of the identities of li-

brary patrons without requiring

any showing on the part of the

state is in conflict with prin-

ciples of law established by

this Court.

When the state interferes with the

exercise of First Amendment rights, it

3 5

must first be shown that a compelling

state interest exists to justify the

interference. NAACP v. Alabama, supra,

at 463, citing Sweezy v. New Hampshire,

354 U.S. 234, 265 (1957) (concurring

opinion). Additionally, this Court has

held that when a legislative investiga-

tion intrudes upon First and Fourteenth

Amendment rights, the State must "“"con-

vincingly show a substantial relation

between the information sought and a

subject of overriding and compelling

state interest." Gibson v. Florida

Legislative Committee, 372 U.S. 539, 545

(1963). The state must make this same

showing in order to compel the disclo-

sure of the identities of the library

patrons who have shown a reading in-

terest in particular books.

It is questionable whether the state

could show any relationship between cat-

ae

tle mutilations and Religion in the Age

of Aquarius, one of the books represent-

ed by the call numbers listed in the sub-

poena. In fact, the state made absolute-

ly no showing at all. The state wholly

ignored the principles of law establish-

ed by this Court.

3. The Iowa Supreme Court's inter-

pretation of Rule 5(6) of the

Iowa Rules of Criminal Procedure

allowing, pursuant to a prelimi-

nary investigation of cattle

mutilations, the compelled dis-

closure of the identities of all

persons who have at any time

borrowed any of 106 different

library books sweeps too broadly

in its impact on constitutional-

ly protected rights.

The principle that state action

which affects constitutional rights must

not sweep too broadly is firmly estab-

lished. Griswold v. Connecticut, supra;

NAACP v. Alabama, supra; Shelton v.

Tucker, 364 U.S. 479 (19606); Talley v.

ye

California, supra.

The only purpose served by the sub-

poena request is the generation of a

suspect list comprised of persons who

have borrowed books from the public li-

brary. The legitimacy of such a purpose

is constitutionally suspect. Even when

a governmental purpose is "legitimate

and substantial, that purpose cannot be

pursued by means that broadly stifle

fundamental personal liberties when the

end can be more narrowly achieved."

Shelton, Supra, at p. 488,

The decision of the court below

allows the state under Rule 5(6) of the

Iowa Rules of Criminal Procedure to com-

pel public libraries to disclose the

reading interests of its Patrons by the

mere assertion that the information is

necessary in its investigation of a

ite

crime. This is in direct conflict with

the decisions of this Court.

CONCLUSION

For these reasons, a writ of certio-

rari should issue to review the judgment

and opinion of the Supreme Court of Iowa

and the order of that court denying fur-

ther review.

Respectfully submitted,

ig ly

PHILIP T. RILEY

Corporation Counsel

East lst and Locust

Des Moines, Iowa 50307

(515) 283-4130

Attorney for Petitioner

Of Counsel:

oe Sg es s20Al> 5

LOUISE M. JACOBS

Assistant City Attorney

East lst & Locust

Des Moines, IA 50307

(515) 283-4130

ee

IN THE SUPREME COURT OF IOWA

STEVEN BROWN, On Behalf )

of Himself and All

Others Similarly )

Situated,

4 -UaALOU

) Filed

and January 19,

) 1983

BOARD OF TRUSTEES OF

THE PUBLIC LIBRARY )

OF DES MOINES, IOWA,

Appellants,

)

vs. 451

) 67495

DAN L. JOHNSTON,

Polk County Attorney, )

and )

GERALD SHANAHAN, Chief, )

Division of Criminal

Investigation of the )

Iowa Department of

Public Safety, )

State of Iowa,

Appellees.

Appeal from Iowa District Court for

Polk County, Louis A. Lavorato, Judge.

Plaintiffs' appeal from district

court denial of requests for an injunc-

tion and declaratory relief against en-

=,

forcement of a subpoena duces’ tecum

AFFIRMED.

Thomas J. McSweeney and Louise M,

Jacobs, Assistant Des Moines City Attor-

neys, for appellant Library Board, and

Gorden E. Allen, Des Moines, for appel-

lant Steven Brown.

Thomas J. Miller, Attorney General,

Gary L. Hayward, Assistant Attorney Gen-

eral, for appellee Gerald Shanahan, and

James Smith, Assistant Polk County Attor-

ney, for appellee Dan L. Johnston.

Considered by Harris, P.J., and

McGiverin, Larson, Schultz, and Carter,

JeJ.

LARSON, J.

This case involves a confrontation

between the investigative power of law

enforcement authorities and the confi-

dentiality provisions of Iowa Code chap-

ter 68A. At issue is whether a county

=

attorney subpoena duces tecum for cer-

tain library circulation records is

limited or restricted by section 68A.7

(13); and if not, whether there exists a

constitutionally protected right of pri-

vacy in liorary records, which, when

weighed against the public interest in

effective criminal investigations bal-

ances in favor of the individual library

patrons. We answer both questions in

the negative and affirm.

This matter began when an agent of

the Iowa Division of Criminal Investiga-

tion (DCI), who was investigating cattle

mutilations in Polk and other counties,

visited the Des Moines Public Library in

November, 1979. He asked whether cer-

tain circulation records were available

for inspection. The agent was told that

as a matter of library policy, such

records were confidential. At the re-

-A4-

quest of the DCI, the Polk County Attor-

ney, Dan L. Johnston, then applied ...

and was granted, pursuant to lows Rule

OF Criminal Procedure 5(6 } ’ a subpoena

duces tecum, requiring the custodian of

library records to appear and present

"all records of persons who have checked

out the books described in State's ap-

plication." The State's application re-

quested a long list of titles dealing

mainly with witchcraft and_ related

topics.

Shortly after the subpoena was

served on the library, Steven Brown, a

library card holder, filed a petition

for declaratory and injunctive relief

alleging the right to an_ injunction

under Iowa Code section 68A.8 (1979).

Brown's petition named as defendants the

library board and the DCI chief. The

suit sought to enjoin the examination

-A5-=-

and copying of the library circulation

records "absent a showing of compelling

State interest" and requested a declara-

tion that disclosure of such records was

unconstitutional. The library board

then filed its own petition requesting

the court to enjoin enforcement of the

subpoena and named as defendants the DCI

chief and the Polk County Attorney. The

two actions were later consolidated, and

the library board was recast as a plain-

citt.

Upon hearing, the district court

entered a decree denying the declaratory

and injunctive relief requested and

ruled there was an adequate remedy at

law: the library board of trustees

could assert any defenses it had in a

later proceeding to enforce the subpoena.

I. Applicability of Chapter 68A.

Iowa Code section 68A.7 lists the

-A6=

public records which are to be consider-

ed confidential and the requirements for

their release:

The following public records

shall be kept confidential, un-

less otherwise ordered by a

court, by the lawful custodian

of the records, or by another

person duly authorized to re-

lease information:

13. The records of a library

which, by themselves or when

examined with other’ records,

would reveal the identity of

the library patron checking out

Or requesting an item from the

library.

This court has previously confronted

questions of applicability of chapter

68A. In Iowa Civil Rights Comm. v. City

of Des Moines, 313 N.W.2d 491, 494 (Iowa

1980), we were asked to decide whether

1 Library records were added to sec-

tion 68A.7 by amendment after these ac-

tions were filed but before the hearing

on them in district court. it is not

contended, however, that the amendment

is inapplicable on retroactivity grounds.

-A7-

section 68A.7 was applicable to admini-

strative subpoenas. In that case, the

City of Des Moines had resisted a sub-

poena duces tecum from the Iowa Civil

Rights Commission, arguing the records

sought were exempt from examination

under confidentiality provisions of sec-

tion 68A.7(11). We disagreed, holding

that the exemptions of section 68A.7

were “applicable only within the frame-

work of ‘every citizen's general right

to examine public records under chapter

68A.'" Id. at 495. We likened the com-

missioner's authority to conduct inves-

tigations to that of a grand jury, id.

at 495, stating that: to hold otherwise

"would contravene the public interest in

redressing civil rights violations and

frustrate the Commissioner's statutory

investigative powers." Id. at 495.

We believe the present case dictates

-~A8-

a similar holding. The county attor-

ney's investigative authority is compa-

rable to and in some instances in lieu

of the grand jury. See Iowa Const.

amend. [9] (third amendment of 1884);

Iowa R. Crim. P. 5(6) (providing county

attorney with subpoena power in investi-

gating crime). As such, the county at-

torney's investigative power must be

broad to adequately discharge his public

responsibility. See United States v.

Calandra, 414 U.S. 338, 343-44, 94 S.Ct.

613, 618, 38 L.Ed.2d 561, 569 (1974);

Branzburg v. Hayes, 408 U.S. 665, 701-02

92 S.Ct. 2646, 2666, 33 L.Ed.2d 626, 651

(1972). To hold otherwise would limit

the investigative power of the county

attorney, while at the same time allow-

ing administrative agencies to access

the same records.

There is an additional basis upon

-A9-

which a county attorney's subpoena duces

tecum will override a claim of confiden-

tiality: the confidentiality statute is

inapplicable by its terms if the records

are "ordered by a court." Iowa Code §

68A.7. Rule of criminal procedure 5(6)

provides that such an order is a prere-

quisite for the issuance of the county

attorney's subpoena, although it is

actually issued by the clerk:

The clerk of the district

court, on written application

of the prosecuting attorney and

the approval of the court,

shall issue subpoenas including

subpoenas duces tecum for such

witnesses as the prosecuting

attorney may require in inves-

tigating an offense.... Such

application and order of ap-

proval shall be maintained by

the clerk in a_ confidential

eae

(Emphasis added). While it is not clear

in this case whether the application was

"approved" by the court, the library

personnel do not dispute the county at-

~Al0-

torney's claim that the subpoena was ob-

tained in the manner provided by crimi-

nal rule 5({G).

Accordingly, we hold that section

68A.7(13) does not prevent execution of

a county attorney's subpoena duces tecum.

II. Constitutional Challenge,

Brown and the library board also

Claimed constitutional protection of

their rcight of privacy, based primarily

on the first and fourteenth amendments

to the United States Constitution, see

N.A.A.C.P. Ve Alabama, 357 0.8. 449,460-

Sis 78 S.Ct. 2163, 1370, 2 &.28. 24 1488,

1498-99 (1958), as well as the fourth

and ninth amendments, see State v. Pil-

cher, 242 N.W.2d 348, 356-57 (Iowa 1976).

The effect of forced disclosure of li-

brary records would to be chill citizens'

reading of unpopular or controversial

books because others might learn of it,

-All-

according to them, any such _ inquiry

would invade their fourth amendment zone

of privacy.

Constitutional privileges against

forced disclosure have been recognized

in analogous circumstances. The Supreme

Court recognized a qualified reporter's

privilege based upon the first amendment

in Branzbura, 408 U.S. at 680, 92 S.Ct.

at 2656, 33 L.Ed.2d at 639; and the pre-

sident's executive privilege was recog-

nized in United States v. Nixon, 418 U.

S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039

(1974). Similarly, this court acknow-

ledged a first-amendment privilege

against forced disclosure in Lamberto v.

Brown, 326 N.W.2d 305 (Iowa 1982) and in

Winegard v. Oxberger, 258 N. W. 2d 47

(Iowa 1977).

These privileges, however, are not

absolute; each claim of privilege must

-Al2-

be weighed against a societal need for

the information and the availability of

it from other sources. Even if we as-

sume, aS Brown and the library board

urge, that a library patron's privilege

exists, based upon the patron's right of

privacy, it is only a qualified privi-

lege. We must weigh the effect of

forced disclosure of these’ records

against the societal need for the infor-

mation.

Branzburg and Nixon are closely anal-

ogous. They, like the present case, in-

volved claims of privilege in connection

with criminal investigations. Branzburg

held that a first-amendment privilege

Claimed by a reporter must be subordi-

nated to the interest of society in well-

founded grand jury indictments. Branz-

burg, 408 U.S. at 685, 92 S.Ct. at 2658,

33 L.Ed.2d at 642. In Nixon, the Supreme

-Al13-

Court refused to apply the executive

privilege claimed by the president in

response to the government's request for

information in a criminal investigation,

because of the court's concern for the

fair administration of criminal justice.

Nixon, 418 U.S. at 711, 94 S.Ct. at 3109,

41 L.Ed.2d at 1066. See also Re Farber,

78 MB. J... 259, 273, 394 A. 26 330, 337,

cert. denied, 439 U.S. 997, 99 S.Ct. 598,

58 L.Ed.2d 670 (1978) (refused to apply

first-amendment privilege in criminal

investigation).

We believe the rationale of these

cases controls here. It is true the

State's investigation was only prelimi-

nary; and as Brown and the library board

argue, no suspects were identified nor

was the search for information limited

to any named library patrons. This does

not diminish the need for the informa-

~A14-

tion, however, as we assume the whole

purpose in examining the record was to

gain enough information so that the in-

vestigation could be narrowed.

The State's interest in well-founded

criminal charges and the fair admini-

stration of criminal justice must be

held to override the claim of privilege

here. Brown and the library board have

cited no cases to us which have reached

a contrary conclusion under’ similar

facts, and we have found none.

III. Oppressiveness of the Demand.

Because disclosure cf this informa-

tion is not barred by our confidential

records act, for the reasons discussed

in division I, the library's argument

that the request is so overbroad and

burdensome that it entitles it to in-

junctive relief under section 68A.8 is

inapposite. We do not, however, fore-

-A15-

close the possibility of obtaining some

form of protective order in the future

if the demand is in fact unduly burden-

some. The record at this point is not

sufficient for the court to make that

determination.

AFFIRMED.

-Al6-

IN THE SUPREME COURT OF IOWA

STEVEN BROWN, On Behalf )

of Himself and All

Others Similarly )

Situated,

)

and No. 67495

)

BOARD OF TRUSTEES OF

THE PUBLIC LIBRARY )

OF DES MOINES, IOWA,

Appellants,

vs. ORDER

DAN L. JOHNSTON,

Polk County Attorney, )

and )

GERALD SHANAHAN, Chief, )

Division of Criminal

Investigation of the )

Iowa Department of

Public Safety, )

State of Iowa,

Appellees.

After consideration by the court en

banc, appellant Board of Trustees of the

Public Library's petition for rehearing

in the above-captioned case is hereby

overruled and denied.

-Al7-

Done this 10th day of February, 1983.

THE SUPREME COURT OF IOWA

By

W. W. Reynoldson, Chief Justice

(THIS PAGE [NTENTIONALLY LEFT BLANB)