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The Billings Gazette v. City of Billings

Supreme Court of Montana

November 8, 2013

THE BILLINGS GAZETTE, a division of LEE ENTERPRISES, Plaintiff and Appellee,
THE CITY OF BILLINGS, Defendant and Appellant.

Submitted on Briefs: August 28, 2013

APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DV 12-1349 Honorable Russell C. Fagg, Presiding Judge.

For Appellant Gerald B. Murphy, Emily Jones; Moulton Bellingham PC; Billings, Montana

For Appellee Martha Sheehy; Sheehy Law Firm; Billings, Montana



¶1 Appellant City of Billings (City) appeals the order of the Thirteenth Judicial District Court, Yellowstone County, ordering that it release copies of investigative documents and disciplinary forms without redactions for information identifying five City employees. The five employees had been disciplined by the City for inappropriate computer usage on their work computers. The Billings Gazette (Gazette) sought access to documents detailing the investigation into and punishment of the misconduct. The City disclosed some documents but refused to release the disciplinary corrective action forms, and redacted all information that could be used to identify the five employees or uninvolved third parties alleging that to do so would violate the employees' right to privacy. The District Court ruled in favor of the Gazette and ordered that unredacted copies of all documents, including the corrective action forms, be provided to the newspaper. The City appealed, and obtained an order staying judgment through appeal as to the identifying information, but not as to the corrective action forms. We reverse.

¶2 We restate and consider the following issues:

¶3 1. Did the District Court err by ordering that identifying information for five City employees disciplined for accessing pornography on their government computers be released to the Gazette?

¶4 2. Did the District Court abuse its discretion by denying the Gazette's request for attorney fees?


¶5 Between March and June of 2012, the City discovered five city employees (Employees) had possibly been using their respective public City computers to access adult and/or pornographic material on the Internet during work hours. The City conducted separate internal investigations into the Internet activity of each Employee. Upon conclusion of each investigation, the City issued a written corrective action determination to each Employee, setting forth a summary of the evidence gathered during the investigation and the disciplinary action being taken by the City as a result. Each of the Employees was suspended for five days without pay.

¶6 On August 24, 2012, the Gazette requested copies of "all written reprimands or records of other disciplinary actions affecting employees of the City Attorney's office between February 1, 2012 and August 24, 2012." On August 28, 2012, the Gazette requested the City provide a list of all city employees who had been disciplined within the prior six months. On August 31, 2012, the Gazette requested "documentation of the searches/filtering that indicated a pattern of attempts to access blocked sites in the cases involving the five city workers suspended for accessing (or attempting to access) inappropriate websites[;] any reports by [the City's Chief Information Office] regarding such searches; any communications between city employees . . . [and] any due process letters resulting from these incidents." The City denied the first two requests, citing the employees' privacy rights but, in response to the third request, provided copies of its investigative documents relating to the Internet activity of the Employees and email correspondence sent in connection with the City's internal investigation of the Employees. These documents were redacted to omit the names and other identifying information of the Employees and uninvolved third persons. The City did not provide copies of the disciplinary corrective action forms for any of the Employees.

¶7 The Gazette filed a Petition for Declaratory Relief and Writ of Mandamus. The Gazette asserted the documentation compiled by the City during and as a result of the investigation into unauthorized computer usage by disciplined City employees was subject to release under the "right to know" provision of Article II, Section 9 of the Montana Constitution and § 2-6-102, MCA, and that any privacy interest the disciplined employees may have in the information being requested did not clearly exceed the public's right to know. The Gazette also requested its attorney fees incurred in enforcing its constitutional rights, pursuant to §§ 2-3-221 and 27-8-313, MCA.

¶8 The City filed a Motion for in camera inspection of the demanded documents to determine whether the demands of privacy outweighed the public's right to know under these circumstances. On December 5, 2012, following the inspection, the District Court entered its Order and Decision granting the Gazette's petition for declaratory judgment but denying its request for attorney fees. The District Court ordered the City to turn over the corrective action forms and all other requested documents, with redactions only for identifying information concerning uninvolved third parties.

¶9 The City simultaneously filed this appeal and a motion before the District Court to stay the order pending appeal to prevent the issues from being rendered moot. The District Court granted the motion to stay with regard to redactions for names and identifying information of the Employees, but found that the Gazette was entitled to redacted copies of the corrective action forms. The District Court attached redacted copies of the corrective action forms to its order granting a stay.


¶10 A district court's interpretation of law is reviewed to determine whether the court's interpretation of the law is correct. Jefferson Co. v. Mont. Stand., 2003 MT 304, ¶ 9, 318 Mont. 173, 79 P.3d 805. We review a district court's findings of fact to determine whether they are clearly erroneous. In re M.A.L., 2006 MT 299, ¶ 17, 334 Mont. 436, 148 P.3d 606. We review a district court's award or denial of attorney fees for an abuse of discretion. A district court abuses its discretion when it acts arbitrarily without conscientious judgment or exceeds the bounds of reason. Disability Rights Mont. v. State, 2009 MT 100, ¶ 13, 350 Mont. 101, 207 P.3d 1092.


¶11 1. Did the District Court err by ordering that identifying information for five City employees disciplined for accessing pornography on their government computers be released to the Gazette?

¶12 Montana's right to privacy is established in Article II, Section 10 of the Montana Constitution:

Right of privacy. The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.

¶13 Often at issue with this provision is the public right to know, also established in the Montana Constitution. Article II, Section 9 of the Montana Constitution provides:

Right to know. No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits. [Emphasis added.]

¶14 We have held that these competing interests must be balanced "in the context of the facts of each case, to determine whether the demands of individual privacy clearly exceed the merits of public disclosure. Under this standard, the right to know may outweigh the right of individual privacy, depending on the facts." Missoulian v. Bd. of Regents of Higher Educ., 207 Mont. 513, 529, 675 P.2d 962, 971 (1984) (emphasis in original).

¶15 An examination of a request under the public right to know provision of the Montana Constitution requires a three-step process:

First, we consider whether the provision applies to the particular political subdivision against whom enforcement is sought. Second, we determine whether the documents in question are "documents of public bodies" subject to public inspection. Finally, if the first two requirements are satisfied, we decide whether a privacy interest is present, and if so, whether the demand of individual privacy clearly exceeds the merits of public disclosure.

Becky v. Butte-Silver Bow Sch. Dist. No. 1, 274 Mont. 131, 136, 906 P.2d 193, 196 (1995). No single rule or policy can be used to determine what information may be released upon public request because each request requires a fact specific, case-by-case analysis of the interests at issue and a balancing of the demands of individual privacy and the merits of public disclosure. Havre Daily News v. Havre, 2006 MT 215, ¶ 17, 333 Mont. 331, 142 P.3d 864.

¶16 The City does not dispute that it is subject to Article II, Section 9 of the Montana Constitution. The City argues that the inquiry should end with the second prong of the test: whether the investigative records and corrective action forms at issue are "documents of public bodies." Though not raised by the Gazette, mootness is a threshold issue the Court must resolve before the merits of the dispute can be decided. Havre Daily News, ¶ 31. "'A matter is moot when, due to an event or happening, the issue has ceased to exist and no longer presents an actual controversy.'" Havre Daily News, ¶ 31 (quoting Shamrock Motors, Inc. v. Ford Motor Co., 1999 MT 21, ¶ 19, 293 Mont. 188, 974 P.2d 1150).

¶17 We decline to address the issue of whether the documents requested by the Gazette are public documents because all of the requested documents have already been disclosed. The investigative records were voluntarily released to the Gazette with only Employee and third-party names and identifying information redacted. Additionally, the corrective actions forms with redactions only for Employee identifying information (name, job title, and department) have been turned over to the Gazette. Though the corrective action forms were disclosed by the District Court in its order granting a stay, rather than by the City, the forms have nevertheless been disseminated and any further discussion as to whether these forms are considered public documents has been rendered moot. Thus the only remaining issue is whether the Employees had a reasonable expectation of privacy in their identifying information in relation to the internal disciplinary proceedings that outweighs the public's right to know.

A. Constitutionally Protected Privacy Interest

¶18 To determine whether a person has a constitutionally protected privacy interest, we consider (1) whether the person has a subjective or actual expectation of privacy, and (2) whether society is willing to recognize that expectation as reasonable. Mont. Human Rights Div. v. Billings, 199 Mont. 434, 442, 649 P.2d 1283, 1287 (1982). Actual expectation of privacy is necessarily a question of fact that requires a determination of whether the individual whose privacy is at issue had notice of possible disclosure. Havre Daily News, ¶ 23; Disability Rights Mont., ¶ 22.

ΒΆ19 The District Court found "the Employees did expect the fact they were disciplined for having misused public computers and the specifics regarding that misuse would be and remain private." The Gazette counters that no actual expectation of privacy could exist here because the City's Internet use policy for employees provides that "[u]sers using City-provided Internet accounts should not assume they are provided any degree of anonymity." ...

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