JON KRAKAUER, Petitioner, Appellee and Cross-Appellant.
STATE OF MONTANA, by and through its COMMISSIONER OF HIGHER EDUCATION, Clayton Christian, Respondent and Appellant,
John Doe, Intervenor and Appellant.
Submitted on Briefs: February 13, 2019
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.
Appellant: Vivian V. Hammill, Helen C. Thigpen, Special
Assistant Attorneys General, Helena, Montana
Appellee: Peter Michael Meloy, Meloy Law Firm, Helena,
Intervenor and Appellant: David R. Paoli, Paoli Law Firm,
P.C., Missoula, Montana
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.
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
Because we conclude resolution of the Commissioner's
issues is dispositive, we do not reach the additional issues
Doe presents for review.
AND PROCEDURAL BACKGROUND
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.
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
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.
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.
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).
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.
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.
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.
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.
1. Did the District Court err in concluding Doe had no
expectation of privacy in his educational
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
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 ...