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Krakauer v. State

Supreme Court of Montana

July 3, 2019

JON KRAKAUER, Petitioner, Appellee and Cross-Appellant.
v.
STATE OF MONTANA, by and through its COMMISSIONER OF HIGHER EDUCATION, Clayton Christian, Respondent and Appellant,
v.
John Doe, Intervenor and Appellant.

          Submitted on Briefs: February 13, 2019

          Appeal From District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. ADV 14-117 Honorable Mike Menahan, Presiding Judge.

          For Appellant: Vivian V. Hammill, Helen C. Thigpen, Special Assistant Attorneys General, Helena, Montana

          For Appellee: Peter Michael Meloy, Meloy Law Firm, Helena, Montana

          For Intervenor and Appellant: David R. Paoli, Paoli Law Firm, P.C., Missoula, Montana

          OPINION

          Laurie McKinnon Justice.

         ¶1 The Commissioner of Higher Education, Clayton Christian (Commissioner), and John Doe appeal an order from the First Judicial District Court, Lewis and Clark County, granting Jon Krakauer's motion to release Doe's educational records. We reverse and dismiss Krakauer's original petition with prejudice, and we affirm the District Court's decision not to award Krakauer attorney fees.

         ¶2 The Commissioner presents the following issues for review:

1. Did the District Court err in concluding Doe had no expectation of privacy in his educational records?
2. Did the District Court err in ruling the futility of redaction issue was moot?
3. Did the District Court err when it held Doe's demand for individual privacy in his educational records did not clearly exceed the merits of their public disclosure?

         ¶3 Because we conclude resolution of the Commissioner's issues is dispositive, we do not reach the additional issues Doe presents for review.

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶4 Krakauer, a writer who chronicled instances of sexual misconduct on or near the University of Montana (the University) campus, seeks the release of Doe's educational records from the Commissioner. The records contain detailed information about student disciplinary proceedings the University initiated against Doe over highly publicized allegations of sexual assault. In Krakauer v. State, 2016 MT 230, 384 Mont. 527, 381 P.3d 524 (Krakauer I), we reversed and remanded the District Court's decision ordering the Commissioner to release Doe's records. The instant appeal arises from the District Court's subsequent order on remand; as such, we incorporate the procedural and factual background from Krakauer I, ¶¶ 2-8, and recite the additional facts that have arisen since.

         ¶5 In January 2014, Krakauer submitted a request for the release of Doe's educational records to the Commissioner. The Commissioner refused to release the records, asserting state and federal law prevented him from doing so. Krakauer then initiated this action and argued the Commissioner wrongly denied him access to Doe's records, citing the right to know under the Montana Constitution. The District Court granted summary judgment to Krakauer and ordered the Commissioner to release Doe's educational records. The Commissioner appealed, and in Krakauer I, we reversed and remanded the case to the District Court to conduct an in-camera review of Doe's records with the following instructions: (1) determine whether there was an adverse final ruling against Doe during his student disciplinary proceedings, which would have allowed for the release of certain, limited information as an exception to the general prohibition against the release of educational records under the Family Educational Rights and Privacy Act of 1974, as amended, 20 U.S.C. § 1232g (FERPA); (2) factor the enhanced privacy interests of students into the analysis of whether the Montana Constitution permits disclosing Doe's educational records; and (3) determine whether the potential for redacting Doe's personally identifying information affects the privacy analysis and the ultimate determination about what records, if any, can be released.

         ¶6 Following our decision, the District Court granted Doe a motion to intervene in the case. The court then conducted an in-camera review of Doe's educational records. First, the District Court did not make a finding about whether an adverse ruling against Doe existed that would have permitted the release of limited information from Doe's records. Second, although recognizing students' enhanced privacy interests in their educational records, the court found Doe's personal information in the records was already substantially available to the public through unsealed court records and significant media coverage of Doe's contemporaneous public criminal trial. Therefore, it held Doe did not have a subjective or actual expectation of privacy in the records at issue, which rendered the issue of redaction moot. Third, the District Court concluded that even if Doe had a privacy interest in his records, his privacy interest did not clearly exceed the merits of public disclosure due to Doe's status as a high-profile student-athlete at the time of the disciplinary proceedings, the scholarships he received from the University, the attendant publicity of the alleged sexual assault, and the public's compelling interest in understanding the disciplinary procedures employed by a state university.

         ¶7 The District Court later denied Krakauer an award of attorney fees. Both the Commissioner and Doe appeal the District Court's order to release Doe's records, and Krakauer cross-appeals the order denying him attorney fees.

         STANDARD OF REVIEW

         ¶8 The Commissioner, Doe, and Krakauer raise issues of constitutional law. "Our review of questions involving constitutional law is plenary. A district court's resolution of an issue involving a question of constitutional law is a conclusion of law which we review to determine whether the conclusion is correct." Krakauer I, ¶ 10 (quoting Bryan v. Yellowstone Cty. Elementary Sch. Dist. No. 2, 2002 MT 264, ¶ 16, 312 Mont. 257, 60 P.3d 381).

         DISCUSSION

         ¶9 Article II, Section 9, of the Montana Constitution provides the public's right to know: "No person shall be deprived of the right to examine documents . . . 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 of public disclosure." We have accordingly recognized "a constitutional presumption that all documents of every kind in the hands of public officials are amenable to inspection . . . ." Great Falls Tribune v. Mont. PSC, 2003 MT 359, ¶ 54, 319 Mont. 38, 82 P.3d 876 (citation and emphasis omitted). The right to know is not, however, absolute-it may be overcome when the demands of individual privacy clearly exceed the merits of public disclosure. Mont. Const. art. II, § 9; Associated Press, Inc. v. Mont. Dep't of Revenue, 2000 MT 160, ¶ 24, 300 Mont. 233, 4 P.3d 5.

         ¶10 Article II, Section 10, of the Montana Constitution provides an individual's 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." The right of privacy is also not absolute-it may be infringed upon with the showing of a compelling state interest. Mont. Const. art. II, § 10.

         ¶11 The rights exist in tension with one another and conflict when the public seeks to examine documents an individual asserts a privacy interest in. Because neither right is absolute, we must balance the competing constitutional rights when they conflict. Missoulian v. Bd. of Regents, 207 Mont. 513, 529, 675 P.2d 962, 971 (1984). "Before balancing these interests, however, [we must determine] more precisely what interests are at stake." Missoulian, 207 Mont. at 529, 675 P.2d at 971.

         ¶12 We first determine whether an individual privacy interest exists. Missoulian, 207 Mont. at 529, 675 P.2d at 971. If a privacy interest exists, we then balance "the competing constitutional interests in the context of the facts of each case, to determine whether the demands of individual privacy clearly exceed the merits of public disclosure." Associated Press, ¶ 24 (quoting Missoulian, 207 Mont. at 529, 675 P.2d at 971) (emphasis omitted). "[T]he right to know may outweigh the right of individual privacy, depending on the facts." Missoulian, 207 Mont. at 529, 675 P.2d at 971.

         ¶13 1. Did the District Court err in concluding Doe had no expectation of privacy in his educational records?

         ¶14 We first consider whether Doe has an expectation of privacy in his educational records. To determine whether a person has a constitutionally protected privacy interest with respect to certain records, we inquire: (1) "whether the person involved had a subjective or actual expectation of privacy"; and (2) "whether society is willing to recognize that expectation as reasonable." Krakauer I, ¶ 36; Great Falls Tribune Co. v. Day, 1998 MT 133, ¶ 20, 289 Mont. 155, 959 P.2d 508 (citing Missoulian, 207 Mont. at 522, 675 P.2d at 967).

         ¶15 The Commissioner and Doe argue the District Court erred when it concluded Doe has no subjective or actual expectation of privacy in his educational records because all students have an enhanced privacy interest in their educational records. Krakauer counters that Doe has no subjective or actual expectation of privacy in his educational records because: first, the University's Student-Athlete Conduct Code put Doe on notice his status as a student-athlete meant he would be "more visible" in the community, more "scrutinized" by the media, and he may have diminished "individual rights and privileges"; and second, the public ...


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