November 8, 2013
THE BILLINGS GAZETTE, a division of Lee Enterprises, Plaintiff and Appellee
THE CITY OF BILLINGS, Defendant and Appellant
SYNOPSIS OF THE CASE
This case concerns the public release of the names of city employees that were disciplined for viewing pornography on city computers. The Billings Gazette requested disciplinary records for five City of Billings employees who were disciplined by the City. The City provided the Gazette with copies of documents relating to the inappropriate computer use and internal investigation that discovered it, as well as email correspondence relating to the investigation, but all references to the employees' identities or job titles were redacted. The City refused to disclose the employees' identities because of the employees' right to privacy in their own personnel records.
The Gazette brought suit, asserting the right to know under the Montana Constitution. The District Court ruled that any right to privacy the employees may have in their identities in relation to the discipline was outweighed by the public's right to know because the employees' inappropriate computer use posed a risk to the network security of the City, and wasted City resources due to the employees' failure to perform their respective duties during the time they were inappropriately using their computers. The City was ordered to provide the Gazette with unredacted copies of all the documents sought by the Gazette.
The Supreme Court reversed the District Court and ruled that the employees' right to privacy in the disciplinary process exceeded the public's right to know their identities. Government employees do not lose their right to privacy simply because tax dollars pay their salaries. The employees had a right to privacy in their identities in relation to the disciplinary process when the misconduct was merely a violation of an office policy and did not violate a duty related to the public trust. None of the employees were elected officials or otherwise in a high position that may reduce their expectation of privacy. Because the only argument that could be made regarding the benefit of public disclosure was that it would promote fairness and allow the public to determine why the specific punishments were given, the Court concluded that the employees' right to privacy in their identities in the disciplinary process outweighed the benefits of public disclosure.
The dissent recognized that the information sought by the Gazette related not only to the names of the disciplined employees, but also the employees' departments, positions, and supervisors. The dissent maintained that City employees have no reasonable expectation of privacy in viewing pornographic materials on the internet during work hours, on a City computer, particularly when an employment policy exists which specifically states that anonymity does not apply and monitoring may be conducted. Moreover, the placement of the final disciplinary report – the Corrective Action Form – into an employee's personnel file does not transform an employee's open and pervasive access to pornographic material over the internet into a private activity.