
    In the Matter of Grand Jury Subpoenas for Locals 17, 135, 257 AND 608 OF THE UNITED BROTHERHOOD OF CARPENTERS and Joiners of America, AFL-CIO, Appellants. The People of the State of New York, Respondent.
    Argued May 24, 1988;
    decided July 6, 1988
    
      POINTS OF COUNSEL
    
      William J. Dealy for appellants.
    I. The subpoenas duces tecum violate the First Amendment rights of the carpenters locals. (Local 1814, Intl. Longshoremen’s Assn. v Waterfront Commn., 667 F2d 267; Communications Assn. v Douds, 339 US 382; N. A. A. C. P. v Alabama, 357 US 449; Pollard v Roberts, 283 F Supp 248, 393 US 14; Bursey v United States, 466 F2d 1059; Gooding v Wilson, 405 US 518; Doe v Martin, 404 F Supp 753; United States v Fisher, 455 F2d 1101; Durbin v United States, 221 F2d 520; Hoffman v United States, 341 US 479.) II. The District Attorney’s enforcement of these over-broad subpoenas violates the Fourth Amendment protection against unreasonable searches and seizures. (Boyd v United States, 116 US 616; Hale v Henkel, 201 US 43; Federal Trade Commn. v American Tobacco Co., 264 US 298; Oklahoma Press Publ. Co. v Walling, 327 US 186; United States v Gurule, 437 F2d 239; In re Grand Jury Subpoenas Duces Tecum, 203 F Supp 575; United States v Barr, 605 F Supp 114; Virag v Hynes, 54 NY2d 437; In re Grand Jury Proceedings, 579 F2d 836; In re Grand Jury Subpoena Duces Tecum, 391 F Supp 991.) III. Union membership lists are secret. (Wirtz v Local 191, Intl. Bhd. of Teamsters, 218 F Supp 885.)
    
      Robert M. Morgenthau, District Attorney (Robert A. Mass, Mary C. Farrington and Mark Dwyer of counsel), for respondent.
    The Grand Jury subpoenas do not infringe upon appellants’ constitutional rights or any privilege under the Federal labor laws, and their motion to quash, therefore, was properly denied. (Brown v Socialist Workers '74 Campaign Comm., 459 US 87; Buckley v Valeo, 424 US 1; Gibson v Florida Legislative Comm., 372 US 539; In re Grand Jury Proceedings, 776 F2d 1099; Branzburg v Hayes, 408 US 665; Local 1814, Intl. Longshoremen’s Assn. v Waterfront Commn., 667 F2d 267; In re Faltico, 561 F2d 109; N. A. A. C. P. v Alabama, 357 US 449; Doe v Martin, 404 F Supp 753.)
   OPINION OF THE COURT

Simons, J.

A New York County Grand Jury has issued subpoenas duces tecum for the membership lists of four Union Locals of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and they have moved to quash, claiming the subpoenas violated their First and Fourth Amendment rights under the United States Constitution. The courts below denied the motion, and petitioners’ subsequent motion for a stay, and they now have surrendered the lists to the District Attorney. We conclude that the District Attorney’s continued possession of the membership lists pending the completion of the Grand Jury’s investigation does not violate the constitutional rights of the Union Locals or their members and therefore affirm.

The proceeding arises out of an investigation into corruption in the carpentry and drywall industry. It focused primarily on high-ranking union officials but the prosecutor informed the court that he assumed that some rank and file members might also become targets. Pursuant to this investigation the New York County District Attorney’s office issued subpoenas duces tecum to Locals 17, 135, 257 and 608 of the Carpenters Union, requesting that each produce a list containing the names, addresses, home telephone numbers and Social Security numbers of their members. The Locals moved to quash the subpoenas, claiming violations of their First and Fourth Amendment rights. The District Attorney opposed the motion claiming that the First Amendment rights of petitioners’ members were not implicated but contending alternatively that even if membership in a union came within the associational rights addressed in the Federal cases, that the People had met the compelling State interest test and were entitled to the records. On the basis of these claims, the trial court conducted an in camera hearing during which it pressed the District Attorney on the need for the information, particularly the need for the Social Security numbers, and the possibility of limiting the number of names produced. After considering the District Attorney’s arguments, the court denied the motion, but limited the subpoena to the extent of requiring that the lists remain under the direction and control of the principal Assistant District Attorney assigned to the investigation, ordering him not to duplicate them and requiring that he return the lists to the Locals upon completion of the Grand Jury’s investigation.

The Appellate Division refused to stay Supreme Court’s order and petitioners surrendered the lists to the District Attorney. It subsequently affirmed Special Term’s order on the merits and petitioners appeal to this court on constitutional grounds.

I

Although neither petitioners nor respondent contends that the appeal is moot, mootness is a doctrine related to subject matter jurisdiction and thus must be considered by the court sua sponte (see, Matter of Hearst Corp. v Clyne, 50 NY2d 707, 713-714; People ex rel. Geer v Common Council, 82 NY 575, 576). Ordinarily, if a party has surrendered subpoenaed material, the legal injury has occurred and the courts cannot provide an effective remedy. That being so, the appellate court must dismiss the appeal unless it falls within the well-recognized exception where courts may exercise their extraordinary discretion to entertain the appeal notwithstanding mootness (Matter of Roadway Express v Commissioner of N. Y. State Dept. of Labor, 66 NY2d 742, 744). This case does not fall within the traditional exception (see, e.g., Matter of Knight-Ridder Broadcasting v Greenberg, 70 NY2d 151, 154, n 2; Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715, supra; Matter of Jones v Berman, 37 NY2d 42, 57). Although the First Amendment question posed is substantial, and novel in this court, it is not the type which will typically evade review because a stay can be obtained to preserve the issue for appellate review before the material is surrendered.

Nevertheless, an appeal is not rendered moot if there remain undetermined rights or interests which the respective parties are entitled to assert (Matter of District Attorney of Suffolk County, 58 NY2d 436, 443; Gilpin v Mutual Life Ins. Co., 299 NY 253, 261-262; see, Cohen and Karger, Powers of the New York Court of Appeals § 98, at 417 [rev ed]). In this case, the rights of the parties remain undetermined because the membership lists which, pursuant to Supreme Court’s order, cannot be copied, remain under the control of the Assistant District Attorney and continue to be used by him in the investigation (cf., Matter of Roadway Express v Commissioner of N. Y. State Dept. of Labor, 66 NY2d 742, supra [no argument that continued possession of the subpoenaed material constituted a continuing injury]). We, therefore, turn to the merits.

II

The Locals’ primary argument is that the continued enforcement of the subpoenas will have an inevitable "chilling effect” on the association rights of their members. Specifically, the Locals contend that carpenters in New York City will perceive a connection between being a union member and being called before the Grand Jury and this perception may deter individuals from joining the union or discourage members from attending union meetings or engaging in robust debate with other members.

When a First Amendment claim is presented, the government may not enforce a subpoena of this type unless it is substantially related to a compelling governmental interest (Brown v Socialist Workers ’74 Campaign Comm., 459 US 87, 91-92; Buckley v Valeo, 424 US 1, 64; see also, Communist Party v Control Bd., 367 US 1, 92-103). Unquestionably, the State has a compelling interest in preventing and fighting corruption in the construction industry and the establishment of a specialized Grand Jury is a legitimate means of doing so. Although petitioners dispute it, the membership lists have a substantial relation to the investigation because they will enable the Grand Jury to locate and identify union members, the potential witnesses for Grand Jury testimony, without unduly burdening or delaying the search and without having to proceed through the traditional channels of first notifying the union leaders and exposing witnesses to possible intimidation.

The cases petitioners cite in support of their claim are inapposite. In N. A. A. C. P. v Alabama (357 US 449), the State of Alabama sought access to the membership rolls of the NAACP ostensibly to determine whether the Association was conducting an intrastate business in violation of the State foreign corporation registration statute. The court recognized in that case that petitioners had been subjected to prior harassment and reprisal from the government (id., at 462-463) and that the State did not actually need the membership lists to determine whether the Association was conducting a business (id., at 464-465). In Pollard v Roberts (283 F Supp 248 [three-Judge court], affd Per Curiam without opn 393 US 14), the State of Arkansas sought to obtain a list of the names of all contributors to the Republican Party to determine whether votes were being bought. In quashing the subpoena, the court held that the State had made no showing that the identities of Republican Party contributors was even "reasonably relevant to defendant’s investigation of alleged vote buying” (id., at 257). The court also noted that although there had been no showing that any individuals had been subjected to reprisals on account of contributions to the party, "it would be naive not to recognize that the disclosure of identities of contributors * * * would subject at least some of them to potential economic or political reprisals of greater or lesser severity” (id., at 258). In this case, however, the Grand Jury has a legitimate and compelling need for the lists to conduct its investigation.

Petitioners also claim the subpoenas are overbroad because, although the primary focus of the Grand Jury’s investigation is on the illegal activities of the Union leaders and stewards, the Grand Jury seeks the names, addresses and Social Security numbers of each member of the four Locals. They contend that the reasoning of the court in Local 1814, Intl. Longshoremen’s Assn. v Waterfront Commn. (667 F2d 267) requires reversal here.

In Waterfront a labor union and its political action committee brought suit to enjoin the Waterfront Commission from enforcing a subpoena issued during an investigation into whether longshoremen were being coerced into authorizing payroll deductions for contributions to a political action committee. The subpoena sought the list of all longshoremen who recently authorized payroll deductions. The District Court enforced the subpoena but only after modifying it to limit disclosure on a random basis to 10% of the names the Commission sought. The parties cross-appealed, and the Court of Appeals for the Second Circuit affirmed, holding that although disclosure of the names of the contributors to the PAC would have a chilling effect on free association rights the Commission had a compelling interest in obtaining them. The court observed that the subpoena bore a substantial relation to effectuating the governmental interest justifying enforcement of the subpoena but stated that the subpoena, as drafted, was too broad. It noted that if the 10% limitation of the District Court was inadequate for the Commission to meet its goals, it could reapply to the court for further disclosure.

Waterfront may be distinguished from this case on several grounds. First, the union in Waterfront raised a First Amendment claim because it feared that the disclosure of the names of contributors to political parties or political action committees sought by subpoena would discourage future activity or contributions by its members (see also, Pollard v Roberts, supra). Economic activity, such as membership in a union, may also be protected. As the Supreme Court noted in N. A. A. C. P. v Alabama (357 US 449, 460-461, supra), "it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters * * * state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny”.

But the effect subpoenas have on the membership of a union and participation in its activities is quite different from the effect subpoenas may have on membership in a political group or participation in its activities. Because of the advantages of union membership and the need to disclose it for employment it is not generally concealed or denied. Accordingly, we cannot presume that individuals would give up their union status, and corresponding assurance of well-paid jobs, simply because the Grand Jury knows they are union members and petitioners have not demonstrated that organizational activity would be curtailed because of the delivery of the lists. Waterfront is also distinguishable because there the requesting governmental body had access to the names and addresses of the longshoremen from another source, the Commission’s membership list, a fact which certainly affected the balancing process performed by the courts. Some of the information here also could be obtained from other sources, as the District Attorney conceded, but not from any central list, only by far more intrusive searches through countless personal records. Finally, while a random selection of names in Waterfront sufficiently served the Commission’s interest in determining whether coercion of the union rank and file existed, in this case we agree with the courts below, after examining the transcript of the in camera hearing, that the District Attorney has established that a random selection of names would not adequately serve the Grand Jury’s purpose.

III

Petitioners also contend that the subpoenas are so broadly drafted that they violate the Fourth Amendment’s prohibition against unreasonable searches and seizures. The Supreme Court has stated that the Fourth Amendment provides protection against a Grand Jury subpoena duces tecum "too sweeping in its terms to be regarded as reasonable” (Hale v Henkel, 201 US 43, 76; see also, United States v Dionisio, 410 US 1, 11-12 [dictum reaffirming principle]). We have made clear, however, that a subpoena duces tecum, unlike a search warrant, does not have to be supported by probable cause (Matter of Hynes v Moskowitz, 44 NY2d 383, 394, appeal dismissed 439 US 921).

The standard of reasonableness rather than probable cause is appropriate because of the substantial differences between a search warrant and a subpoena duces tecum. A search and seizure is conducted abruptly, without advance notice, often with force or the threat of force. A subpoena, in contrast, remains at all times under the control and supervision of a judicial officer and may be challenged before compliance through a motion to quash (see, id., at 394; United States v Doe [Schwartz], 457 F2d 895, 898, cert denied 410 US 941). Moreover, the unannounced search and seizure of documents often results in serious social stigma. A subpoena is served in the same manner as any summons or other legal process and typically no stigma whatsoever attaches if it is enforced. Indeed, the distinctions between warrants and subpoenas are so evident that it has been suggested by some courts that the restrictions on overbroad subpoenas duces tecum rest not on the Fourth Amendment’s prohibition against unreasonable searches and seizures, but on the less rigid requirements of the Due Process Clause (see, In re Horowitz, 482 F2d 72, 75-79 [Friendly, J.] cert denied 414 US 867, reh denied 414 US 1052; United States v Doe [Schwartz], 457 F2d 895, 900, supra; People v Doe, 84 AD2d 182, 201, n 14 [all cases reviewing applicable Supreme Court precedent]). Whatever the source of the constitutional right of an individual to be free from overly broad subpoenas duces tecum, "[a]ll that is required under the State and Federal Constitutions is that the subpoenaed materials be relevant to the investigation being conducted and that the subpoena not be overbroad or unreasonably burdensome” (Matter of Hynes v Moskowitz, 44 NY2d 383, 394, supra [citations omitted]; see also, See v City of Seattle, 387 US 541, 544; Oklahoma Press Publ. Co. v Walling, 327 US 186, 208-209).

Based on this standard, we conclude that the subpoenas are neither overly broad nor burdensome and that the information sought is relevant.

It is useful to compare this case with Hale v Henkel (supra), where the Supreme Court found the subpoena to be overly broad and unduly burdensome. In that case the court stressed the fact that if the subpoena were enforced as written it would "completely put a stop to the business of [the] company” (201 US, supra, at 77). Here, by contrast, the subpoenas only request that the Locals submit a copy of the membership lists. Nor is the subpoena subject to criticism on the grounds of vagueness or, using Fourth Amendment terminology, lack of particularity in the description of the documents sought. The Locals were told specifically what they were obligated to produce, the tasks required only a matter of minutes to accomplish and it did not interfere with the Locals’ continued operation.

Petitioners contend further that the names, addresses and Social Security numbers of every member of all four Locals are not relevant. The District Attorney contends that to limit the subpoenas to one Local, to a portion of the membership of one or more Locals, or to certain jobsites would immediately signal the suspected parties and that it would not be adequate because he has no way of knowing which members, for example, witnessed bribes, the illegal violation of collective bargaining agreements or other corrupt activities. He agrees that the information subpoenaed is not necessary in all cases and that some areas of inquiry do not relate to all the Locals but he asserts that narrowing the demand to produce would clearly indicate the areas of investigation and potential charges against each Local and those members who are believed to have knowledge, information which could seriously impede the investigation. His claim is supported by the material revealed to the Trial Justice during the in camera hearing.

Relevancy, of course, cannot be reduced to a formula; only general guidelines can be restated. We have often noted the Grand Jury subpoenas are presumptively valid and can only be quashed by proving an affirmative act of impropriety or bad faith (Virag v Hynes, 54 NY2d 437, 442-443; Matter of Additional Jan. 1979 Grand Jury v Doe, 50 NY2d 14, 20; Matter of Manning v Valente, 272 App Div 358, 361). The party seeking to quash a subpoena duces tecum must "demonstrate 'that a particular category of documents can have no conceivable relevance to any legitimate object of investigation by the * * * grand jury’ ” (Virag v Hynes, 54 NY2d 437, 444, supra, quoting In re Horowitz, 482 F2d 72, 80, supra). Petitioners’ attempt to distinguish Virag v Hynes on the ground that it did not involve an assertion of the Fourth Amendment’s right to be free from unreasonable searches and seizures fails because the standards set forth in Virag satisfy all Fourth Amendment concerns.

Addressing briefly the points raised by the dissent, both the Locals and the People extensively argued the applicability of the First Amendment claim in the moving and responding papers and in their briefs to Supreme Court. While the trial court did not issue a written decision when it denied petitioners’ motion, it had the applicable law presented to it and necessarily engaged in a balancing process before denying the motion to quash. Whether it did so or not is academic at this stage, however, because we have reviewed the record and balanced the competing interests and conclude its decision was correct. Insofar as the dissent contends that the union offered alternatives to compromise the matter, the alternatives were suggested for the first time in the Appellate Division. Finally, although the Assistant District Attorney conceded the obvious, that not all members of the Locals would be called to testify before the Grand Jury, he insisted on the need for all names because at this stage of the investigation it is impossible to determine which members had pertinent information and because it is important that all names be delivered so that the investigation will not be endangered.

IV

We have reviewed the Locals’ remaining contention that the Labor-Management Reporting and Disclosure Act of 1959 (see, 29 USC § 481) shields disclosure of the membership lists to a Grand Jury and conclude that it is without merit.

Accordingly, the order of the Appellate Division should be affirmed.

Titone, J.

(dissenting). I agree with the majority’s conclusion that the controversy presented on this appeal is not moot. I also agree that the Union membership’s Fourth Amendment rights have not been violated. Although I agree with my colleagues that there is a compelling State interest initially justifying disclosure of the Locals’ membership lists, we differ as to whether the subpoenas, as issued, were overbroad. Inasmuch as I find that the lower courts failed to properly balance the admittedly compelling governmental interest in disclosure against the First Amendment rights of the Union members, I would reverse and remit for a new hearing.

As a result of a New York County Grand Jury investigation into corruption in the carpentry and drywall industries, the District Attorney issued subpoenas duces tecum to four Locals of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Although the Union’s officials were the primary targets of the investigation, the subpoenas sought the entire membership lists of all four Locals, consisting of some 10,000 names, addresses, home telephone numbers and Social Security numbers. Contending that the broad disclosure requested by the District Attorney implicated the First Amendment rights of the membership, the Union sought to quash the subpoenas. Alternatively, the Union argued that the subpoenas were overbroad, and requested that the disclosure be limited to what was reasonably necessary to serve the legitimate needs of the investigation.

In issuing the subpoenas in an ex parte proceeding at which only the District Attorney’s office was represented, not one word was mentioned regarding the First Amendment rights of the Union membership. After the Union moved to quash the subpoenas on First Amendment grounds, the Supreme Court failed to indicate whether it had even considered the constitutional claim or balanced the conflicting rights of the government and the members of the Locals. Similarly, there is nothing in the record to indicate that the courts below carefully scrutinized the reasonableness of the District Attorney’s demands or considered the feasibility of less restrictive alternatives. Whether or not the Appellate Division considered the Locals’ constitutional claim is also unknown, since that court affirmed, without opinion.

What is known is that even the Assistant District Attorney admitted that not all of the names on the membership lists were necessary to the investigation. Nevertheless, the majority concludes that "the District Attorney’s continued possession of the membership lists * * * does not violate the constitutional rights of the Union Locals or their members” (majority opn, at 310). This holding is contrary to the controlling Federal case law.

Although acknowledging the substantial First Amendment interest involved, the majority minimizes the significance of the arguments advanced by the Union in support of its position. The Locals do not merely contend that individuals may be deterred from joining the Union, and that members may be discouraged from engaging in Union activities. Rather, the Locals assert that forced disclosure of all 10,000 names, addresses, phone numbers and Social Security numbers of its members infringes on associational, and privacy rights by chilling the exercise of First Amendment rights of the rank- and-file. The Union points out that with its members’ Social Security numbers, the government now has access to the tax returns, financial and other personal information of each and every Union member. Fear of becoming visible may well cause some members to refrain from fully exercising their right to engage in the full range of Union activities, which include political as well as economic and social activities. With the entire membership’s home telephone numbers in his possession, the District Attorney may contact the rank-and-file at home any time he wishes. In sum, the Union’s position is that "the First Amendment protects one’s freedom of association, privacy and freedom to participate in a political life without unjustified governmental interference”. To further support its contention that disclosure here may adversely affect the Union, and thereby chill the exercise of constitutionally protected rights, the Locals point out the undisputed fact that newspapers have already reported on the investigation as a result of a news leak. These issues were explicitly raised below and again before this court in the Union’s brief, and, by implication, in the cases cited by the Locals.

A demand by the government that seeks to obtain constitutionally protected materials is subject to the most exacting scrutiny. "It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the 'liberty’ assured by the Due Process Clause of the Fourteenth Amendment * * * Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny” (N A. A. C. P. v Alabama, 357 US 449, 460-461). Regardless of how compelling the State interest may be, that interest must be balanced against the deterrent effect that the requested "disclosures may well have on the free exercise by [the locals’] members of their constitutionally protected right of association” (N. A. A. C. P. v Alabama, supra, at 463, citing Communications Assn. v Douds, 339 US 382, 400; see generally, Buckley v Valeo, 424 US 1, 25, 44-45). "Compelled disclosure is not permitted unless it is substantially related to a compelling governmental interest” (Local 1814, Intl. Longshoremen’s Assn. v Waterfront Commn., 667 F2d 267, 271, citing Buckley v Valeo, supra, at 64).

Nevertheless, the majority perceives no problem in requiring the Locals to turn over these membership lists and Social Security numbers because they believe that the Locals "have not demonstrated that organizational activity would be curtailed because of the delivery of the lists.” (Majority opn, at 314.) Even if we were to agree with this premise, we would still be compelled to dissent because this approach is contrary to the well-established constitutional principles enunciated in a long line of Federal cases (see, e.g., Buckley v Valeo, supra; Pollard v Roberts, 393 US 14 [Per Curiam], affg 283 F Supp 248; Shelter v Tucker, 364 US 479; Talley v California, 362 US 60; Bates v City of Little Rock, 361 US 516; N. A. A. C. P. v Alabama, 357 US 449, supra; Local 1814, Intl. Longshoremen’s Assn. v Waterfront Commn., 667 F2d 267, supra). Once it was determined that First Amendment rights were implicated here, the governing Federal precedents required that the burden shift to the government to show that there was a compelling State interest. The District Attorney also had to show that there was no less restrictive intrusion into the Union’s records that would reasonably satisfy the needs of the investigation. We were obligated to balance the conflicting interests of the Union and the government and perform the most exacting scrutiny regarding the People’s disclosure demand.

Although the majority attempts to distinguish the cases relied on by the Locals, the facts presented here fall squarely within the dictates of those cases. Indeed, the facts of this case are closely analogous to those of Local 1814, Intl. Longshoremen’s Assn. v Waterfront Commn. (supra). In Waterfront, the government sought disclosure of approximately 450 names of Union members who contributed to the Union’s political fund during a specified period of time as part of an investigation into corruption. The court denied such broad disclosure, and restricted the governmental access to only 10% of the names originally sought, finding that this would "limit the impairment of longshoremen’s First Amendment rights without compromising the Commission’s legitimate investigative needs” (Local 1814, Intl. Longshoremen’s Assn. v Waterfront Commn., supra, at 274). Were the same sort of scrutiny applied here, it is likely, given the record before us, that the requested disclosure would have been similarly limited.

The majority distinguishes the Waterfront case on the ground that it involved political speech. This implies that First Amendment rights were actually somehow capable of being prioritized into some descending order of importance. Federal law dictates otherwise. All fully protected First Amendment rights — whether involving association, privacy, speech, religion, or economics — are entitled to the identical protection and strict scrutiny that political speech enjoys (see, N. A. A. C. P. v Alabama, supra; Local 1814, Intl. Longshoremen’s Assn. v Waterfront Commn., supra). Further, the Locals do indeed argue that the free exercise of the rank-and-file’s political rights are being violated insofar as these rights are intimately bound up with participating in the political activities of the Locals.

More importantly, the initial inquiry is not on the specific First Amendment rights asserted. Rather, the court must inquire into whether the disclosure requested by the government "is substantially related to a compelling governmental interest” (Local 1814, Intl. Longshoremen’s Assn. v Waterfront Commn., supra, at 271). Once it is ascertained that First Amendment rights are implicated, the burden shifts to the government to justify the legally compelled disclosure.

The majority further attempts to distinguish Waterfront on the ground that the requesting governmental body actually had access to the names and addresses of the longshoremen from another source, thereby minimizing the government’s need for the disclosure, while here, the information was not readily available. This argument, however, cuts both ways. Before the judiciary permits compelled disclosure of personal information that is otherwise difficult to obtain, it has an obligation to strictly scrutinize the reasonableness of such a request. But in any event, this was at most a minor factor in the Waterfront decision. Before considering the availability of the information from public sources, we are first obligated to scrutinize the District Attorney’s demands.

There is, however, a valid ground upon which to distinguish the instant case from Waterfront that mandates reversal. In Waterfront, the government sought some 450 members names, all of which had some direct relevance to the investigation. In this case, the government sought some 10,000 names and addresses, as well as home phone numbers and Social Security numbers, even though the government itself admitted that not all the information was relevant to the investigation. Further, as the majority aptly points out, in Waterfront, the disclosure sought was limited. The criteria used to determine whether a member’s name had to be disclosed was predicated on whether the Union member signed a political contribution card after a specific date. In our case, however, the District Attorney demanded the name of every Union member, regardless of which Local they belonged to, and regardless of whether the member was a potential source of relevant information who might shed some light on the investigation. In the instant case, there was absolutely no limiting criteria. Thus, every member whose involvement in the Union was politically motivated, as well as those members whose Union participation was economically or socially motivated, was demanded. In other words, the disclosure at issue here was far more intrusive than that presented in Waterfront.

Finally, the majority contends that "in this case * * * the District Attorney has established” during the in camera hearing "that a random selection of names would not adequately serve the Grand Jury’s purpose.” (Majority opn, at 314-315.) We have reviewed the materials submitted to Justice Roberts, and two things become apparent. First, there was absolutely no showing that the First Amendment implications were even considered and it appears that no balancing at all was done before or after the subpoenas were issued. On this relatively barren record, we decline the invitation of the District Attorney to speculate as to whether or not the lower courts properly balanced the conflicting interests at issue.

Second, the Assistant District Attorney indicated to the issuing Magistrate that the primary target of the investigation was only one of the four Locals. Indeed, the District Attorney’s main justification for this sweeping disclosure was that to limit the subpoenas would immediately signal the suspected parties and jeopardize the investigation. This excuse is insufficient to warrant the full disclosure of the entire membership lists of all four Locals, since there were viable alternatives that could have been employed that would satisfy the reasonable needs of the investigation without infringing upon the First Amendment rights of the membership to such an intrusive degree. For example, the lists of names unrelated to the investigation could have been held by a neutral third party, as suggested by the Locals, disclosure could have been limited to a percentage of the total Union population, as was done in the Waterfront case. However, apparently, neither the majority nor the courts below even considered such reasonable alternatives. Indeed, no alternatives were considered.

Had the required balancing been done, and the requested disclosure been subjected to the demanding constitutional scrutiny required, it is inevitable that the broad disclosure demanded would have been significantly limited.

Accordingly, I would reverse and remit for a proper hearing.

Chief Judge Wachtler and Judges Kaye and Hancock, Jr., concur with Judge Simons; Judge Titone dissents and votes to reverse in a separate opinion in which Judges Alexander and Bellacosa concur.

Order affirmed, with costs. 
      
       The majority points out that "the effect subpoenas have on the membership of a union and participation in its activities is quite different from the effect subpoenas may have on membership in a political group or participation in its activities. Because of the advantages of union membership and the need to discuss it for employment it is not generally concealed or denied.” However, we see a vast distinction between a union member voluntarily deciding to provide an employer with his Social Security number and union membership information, and the situation presented here, where the State seeks to compel this disclosure. The former represents a freely made choice. The latter represents an intrusion by the government into the privacy rights of the individual, as well as implicating the associational rights of the members, since disclosure was demanded solely based on union membership. It is difficult to believe that the average union member would not regard a government demand for the names, home phone numbers and Social Security numbers of every member an intrusion into their privacy. Indeed, we contend that most people would be concerned when a governmental investigatory body demands such personal information.
     