Billings Gazette v. City of Billings

a division GAZETTE, THE BILLINGS ENTERPRISES, LEE Appellee, Plaintiff and v. BILLINGS,

THE CITY OF Appellant. Defendant DA 12-0739. No. August on Briefs Submitted 8, 2013. Decided November MT 334. 372 Mont. 409.

313 P.3d 129. For Appellant: Murphy, Jones; Gerald B. Emily Moulton Bellingham PC; Billings. Appellee:

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

pornography by denying discretion 2. Did the District Court abuse its attorney request Gazette’s fees?

FACTUAL AND PROCEDURAL BACKGROUND city and June of discovered five Between March using respective public their employees (Employees) possibly had been material on the City computers pornographic to access adult and/or during City separate hours. The conducted internal Internet work activity Employee. Upon each investigations into the Internet investigation, City of each the issued a written corrective conclusion Employee, setting summary action determination to each forth a action gathered during investigation disciplinary evidence and the being by City Employees taken as a result. Each of the was suspended days pay. for five without 24, 2012, August requested copies the Gazette of “all written On disciplinary affecting employees or records ofother actions

reprimands City Attorney February August of the s officebetween 2012 and August requested City provide On the Gazette 2012.” city six disciplined prior list of all who had been within August 31, requested “documentation months. On Gazette to access séarches/filtering pattern attempts of the that indicated a involving city suspended workers for blocked sites the cases five (or access) websites[;] any inappropriate accessing attempting such City’s regarding Office] Chief Information reports [the any due searches; any city employees... [and] communications between City The denied the resulting letters from these incidents.” process but, in rights response requests, citing employees’ privacy first two to the third request, provided copies of its investigative documents relating to the Internet activity of the and email correspondence sent City’s connection with the internal investigation Employees. of the These documents were redacted to omit the names and identifying other information of the and persons. uninvolved third City provide The did not copies of the disciplinary any corrective action forms for Employees. of the The Declaratory Gazette filed a Petition for Relief and Writ of Mandamus. The Gazette asserted the compiled by documentation City during and as a result investigation into unauthorized computer usage by disciplined City employees subject was to release “right under the provision II, to know” of Article Section 9 of the Montana 2-6-102, MCA, Constitution and § interest the employees may have the information being requested did not clearly exceed the public’s right to know. The Gazette also requested attorney its fees incurred in enforcing its rights, pursuant constitutional 27-8-313, MCA. §§2-3-221 City The filed a Motion for in camera inspection of the demanded documents to determine whether the demands of privacy outweighed public’s right to know under these circumstances. On December 2012, following the inspection, the District Court entered its Order and granting Decision the Gazette’s petition for declaratory judgment but denying its request attorney for fees. The District Court ordered the City to turn over the corrective action forms and all other requested documents, only with redactions identifying information concerning uninvolved parties. third simultaneously appeal filed this and a motion before the

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

STANDARD OF REVIEW A district interpretation ¶10 court’s of law is reviewed to determine whether the interpretation court’s of the law is correct. Co. Jefferson Stand., v. 304, Mont. 9, 2003 MT 318 Mont. ¶ 79 P.3d 805. We review a district findings court’s of fact to determine they whether are clearly M.A.L., 299, 17, 334 erroneous. In re 436, 148 2006 MT Mont. ¶ P.3d 606. We review a district court’s award or denial attorney of fees

413 when its discretion A district court abuses of discretion. for an abuse or exceeds judgment arbitrarily conscientious without it acts State, 2009 MT Mont. v. Disability Rights of reason. bounds P.3d 1092.

DISCUSSION ordering identifying err Did the District Court ¶11 accessing City employees for five to the Gazette? computers bereleased government on their pornography II, Section 10 in Article right privacy is established Montana’s of the Montana Constitution: is essential to right privacy of individual

Right privacy. infringed not without well-being society of a free and shall be a state interest. showing compelling know, also public right is the provision Often at issue with this II, Section 9 of the in the Montana Constitution. Article

established provides: Montana Constitution right ofthe to examine

Right person deprived to know. No shall be of all bodies documents or to observe deliberations subdivisions, except in cases agencies government of state and its clearly individual exceeds in which the demand of [Emphasis added.] merits. “in interests must competing have held that these be balanced We case, the facts each to determine whether

the context of privacy clearly individual exceed the merits of demands of standard, right may outweigh disclosure. Under this know v. Bd. on the facts.” Missoulian privacy, depending of individual 513, 529, Educ., Regents Higher 207 Mont. (1984) original). (emphasis public right to know request An examination of a under three-step requires process: of the Montana Constitution provision First, provision applies particular we consider whether Second, against sought. enforcement is political subdivision whom question are “documents we determine whether documents Finally, if the first subject public inspection. bodies” satisfied, requirements are we decide whether two so, present, and if whether the demand of individual interest clearly exceeds the merits of disclosure.

Becky v. Butte-Silver Bow Sch. Dist. No. (1995). can used to determine single policy P.2d No rule or be each may public request released because upon what information be case-by-case analysis of the interests request requires specific, a fact balancing privacy at issue and a of the demands of individual and the Daily Havre, merits of disclosure. Havre News v. 2006 MT 333 Mont. 142 P.3d 864. ¶ subject II, The does not that it is to Article dispute Section 9

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

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

A. Constitutionally Privacy Protected Interest To determine person whether a has a constitutionally (1) protected interest, privacy we consider person whether the has a (2) subjective expectation or actual of privacy, society and whether is willing recognize that expectation as reasonable. Mont. Human (1982). Rights Billings, 434, 442, 649 Div. v. 199Mont. P.2d expectation Actual privacy necessarily a question of fact that requires a determination ofwhether the individual whose is at issue had notice possible News, 23; disclosure. Havre Daily ¶ Disability Mont., Rights The District Court found “the did expect they the fact having

were for misused public computers specifics and the regarding private.” that misuse would and remain The Gazette be expectation counters that no actual could exist here because City’s employees provides ‘tu]sers Internet use policy they using City-provided Internet accounts should not assume are Additionally, provided any degree anonymity.” policy states that may City.” Internet Tu]se of the be monitored precise question is whether the had an actual their identities relation to internal proceedings, employer’s knowledge not as to their oftheir disciplinary If usage. Only City’s policy. Internet the latter is addressed the the question they expectation City was whether held an actual that the clearly usage, would not monitor their the answer would be no. However, City’s usage policy the Internet alone is insufficient to render clearly finding erroneous the District Court’s had they expectation having an actual that “the fact were remain public computers misused ... and private.” would be Having subjective concluded the had an actual or ¶21 expectation privacy, society of we next must determine would whether willing recognize society to that expectation be as reasonable. Whether willing accept expectation to an of as is a reasonable requires determination of law that

reasoned the specific underlying consideration of facts dispute. provide examples, following inquiries To but a few may prove evaluating relevant of an reasonableness (1) expectation individual’s privacy: of attributes ofthe individual (2) position trust; ... and whether the individual holds a of public particular information; characteristics of the piece discrete of (3) relationship information to the duties of the individual. (citations omitted). News, Daily

Havre 23 The reasonableness of an privacy “mayvary, regarding even the same information recipient Div., and the same ofthat information.” Rights Mont. Human 199 Mont. at 649 P.2d at 1288. law, In order to specific question examine this fact it is

important to undertake a of our prior relating review decisions to the of public employees’ expectations reasonableness when against public’s right balanced to know. Division, Rights Rights Montana Human the Human (HRC)

Commission requested personnel complainants records of allegations certain other in order to investigate sex, race, status, discrimination based on marital and/or union membership. 436, 649 199 Mont. at P.2d at City 1284-85. The refused files, right non-complainant citing

to release those individuals’ to Div., Rights Human 199 Mont. at P.2d at 1285. privacy. Mont. reasonably employment We noted that records contain references to health, criticisms, family, or test problems, employer substance abuse records, scores, military many things employee other prison reasonably Div., expect Rights would to be confidential. Mont. Human 199 Mont. at 649 P.2d at 1287-88. that, ultimately though being requested We held the information subject right privacy, right

was was nevertheless considerations, outweighed by including right other to equal protection authority and the investigate HRC’s claims of Div., Rights 442-44, discrimination. Mont. Human rejected P.2d at 1287-89. argument We s that redaction of the names could reduce the intrusion on the non-complainants’ privacy sex, race, the names because alone could be indicators of or even status, may marital information which not be available in the rest of Rights Div., the file. Mont. Human 649 P.2d at 1289. Though right we found that the to privacy outweighed by was know, required HRC’s a protection we order to restrict release identifying Div., public. Rights Mont. Human Mont. at 649 P.2d at 1291. years later, Missoulian, Two we held that the individual of six university presidents interests job confidential

performance clearly evaluations exceeded the merits of 533, disclosure. 207 Mont. at 675 P.2d at 973. The Missoulian had (Board) sought meeting access to a Regents of the Board of and the (Commissioner) Higher Commissioner of Education where the presidents’ job performance discussed, was as well as evaluation by Missoulian, documents considered 517, 675 Board. 207 Mont. at P.2d request at 964-65. The was denied privacy the Board due to Missoulian, 517, concerns. 207 Mont. at 675 P.2d at 964-65. “time, We held that place and status are in factors [T]he reasonableness determination.... determination should include circumstances, consideration ofall including relevant the nature ofthe sought.” Missoulian, 523, information 207 Mont. at 675 P.2d at 968 (emphasis original). “[M]ere status does not control University presidents determination. do not waive their constitutional protections by Missoulian, taking 526, office.” 207 Mont. at 675 P.2d at Confidentiality 969. records personnel and evaluations is especially important subjective because such records opinions include employee’s performance vary of the person will with the evaluating employee, public impede disclosure could candid

417 supervisor and a employee, and employer communication between ratings as a vindictive nature of evaluations public use the could Missoulian, 207 Mont. at disliked. against employees she mechanism of Educ., Bd. Corp. Times v. 527, (citing at 970 Trenton 675 P.2d 1976)). (N.J. Div., it reasonable to We found 30, Super. App. A.2d “ criteria, objective Tack of that has a expect for the vindictiveness, opportunity the lack of an potential ” potential a for abuse’ statements... and substantial employee to rebut 527, 675 Missoulian, at P.2d at 970 207 Mont. kept confidential. will be 33). Times, presidents’ A.2d at We concluded Trenton (quoting general public assertions that clearly outweighed institutions, public confidence in public “foster[ ] would disclosure officials, access accountability assur[e] maintain[ ] the and public expenditures, allow evaluation of to information to government usurping the secret conduct of prevent[ ] any of these interests sovereignty,” showing without a of how people’s Missoulian, 207 by public furthered or hindered disclosure. would be 532, Mont. at 675 P.2d at 972. County Sheriff, Tribune v. Cascade 238 Mont. Great Falls 1267, 1269 (1989), 775 P.2d we held that the interests identity disciplined enforcement officers for unlawful acts law duty clearly on did not exceed the merits of disclosure.

while in a City police county deputies officers and sheriffs were involved Tribune, at apprehend suspect. chase Great Falls deputy up city 775 P.2d at 1267. A sheriff ran his car onto a sidewalk foot, then him suspect, struck on but did not take for medical Tribune, treatment. Great Falls 238 Mont. at P.2d at 1267. An investigation suspect’s injuries deputy being into the resulted in one fired, suspended, police being police one officer other officers two resigning given option resign discharged. when or be Great Falls Tribune, 238 Mont. at 775 P.2d at 1267. The Falls Great Tribune Tribune, sought disciplined names of officers. Great Falls at society We affirmed the District Court’s conclusion that would not identity recognize very strong expectation in the of law enforcement officers for serious misconduct while in the duty. Tribune, line of Falls 775 P.2d at 1269. Great occupy positions Law enforcement officers trust because the health, “public safety, closely police and welfare are tied to an honest force. The conduct of our law enforcement officers is a sensitive matter they engage resulting discipline that if in conduct for misconduct so Tribune, Falls 238 duty, in the line of should know.” Great 418 107,

Mont. at 775 P.2d at 1269. In Flesh v.Board Trustees Joint School Dist. No. Mont. of 4, (1990), 786 P.2d 9 we concluded that an assistant school expectation meeting administrator had a reasonable in a to allegations wrongdoing of outweighed right discuss that public’s (Flesh) know. Robert Flesh filed a complaint void decision made during portion meeting the closed of a where the school board heard a grievance alleging filed Flesh assistant school maliciously administrator had made against false statements him. Flesh, 160, objections, 241 Mont. at 786 P.2d at 6. Over Flesh’s school closed the presentation portions board and deliberation meeting Flesh, 161, to the 241 public. 786 P.2d at 6. grievance specifically We noted that the asked the school board to take disciplinary against administrator, action request Flesh, would necessitate a personnel review of his record. 241 Mont. at 166, 786 P.2d at “society willing 9. We held that to recognize a public employer’s interest in a allegations consideration of involving character, an employee’s integrity, honesty, and personality.” Flesh, 241 Mont. at 786 P.2d at 9. Since there was no showing of any public interest by opening to be served the meeting public, to the the privacy employee clearly interest of the outweighed the public’s Flesh, know. Mont. at 786 P.2d at 9. In Mayor Whitlock, Citizens to Recall Whitlock v. 522-23, (1992), mayor, 77-78 we held that a as an elected official, has expectation no reasonable regard to an investigation allegations “sexually harassing public employees or of other misconduct related performance of his official duties.” Then-Mayor James Whitlock of Hamilton had been by City accused Judge Martha Bethel of sexual harassment A discrimination. group citizens filed suit seeking release of the investigatory report. Whitlock, 519-20, 255 Mont. at 844 P.2d at 76. affirming the District Court’s order to release the report, we important

noted two mayor reasons that allege could not privacy. Whitlock, 522-23, reasonable 255 Mont. at First, P.2d at 77-78. an elected official subjected must be scrutiny because it is the public that has the responsibility ‘hiring, action, disciplinary Whitlock, and supervision.” 255 Mont. at Second, P.2d at we noted that the nature of the being sought investigation was the result of an into misconduct related to the performance duties, of his general official rather than performance evaluations character, or discussion of integrity, honesty, Whitlock’s Whitlock, or personality. 844 P.2d at 78. We held allegations directly ability harassment went to Whitlock’s that sexual duties, properly carry report to out his and the was therefore Whitlock, 522, 844 P.2d at 77-78. properly disclosed. 255 Mont. Daily In Police 260 Department, Bozeman Chronicle v. Bozeman 218, 220, 435, (1993), a cadet at the 436 Law Academy allegation in Bozeman made an of sexual Enforcement against off-duty city police intercourse without consent Bozeman Following investigation, filed, criminal charges officer. no were but the special prosecutor opined police “[the officer] should not be to working allowed continue as a law enforcement officer because of inappropriate position use of his in relation to his contacts with Daily Chronicle, 220, women.” Bozeman 260 Mont. at 859 P.2d at 436- resigned Chronicle, 37. The officer the next day. Daily Bozeman 260 Mont. at 859 P.2d at 437. The Bozeman Daily Chronicle (Chronicle) sought the name investigative of the officer and the Daily Chronicle, documents. Bozeman 260 Mont. at 859 P.2d at 437. upheld We name, District Court’s order to release the shielding investigative

reversed its order documents. Bozeman Daily Chronicle, 221, 229, 260 Mont. at Though 859 P.2d at 442. the officer duty misconduct, had been off at the time the alleged resigned by had the time of the request, Chronicle’s noted that we ‘the nature alleged misconduct ran directly counter to the police duty law, officer’s uphold crime, sworn to prevent protect and to public.... alleged [S]uch misconduct directly police went officer’s breach position therefore, of his [and] trust this conduct is a proper public scrutiny.” matter for Daily Bozeman Chronicle, 859 P.2d at 440. County, 4-5, the Montana sought Standard ¶¶ Jefferson regarding the arrest for DUI of County Beaverhead (Sevalstad).

Commissioner Donna Sevalstad pled guilty Sevalstad driving under the driving influence of alcohol and expired with an Co., license. 4. We cited our decision in Whitlock in ¶ Jefferson affirming the District Court’s order requested to release the Co., information. 16. Because Sevalstad was an elected ¶ Jefferson official, had the responsibility hiring, supervising and disciplining actions, her requires which that the public be informed of Co., her Whitlock, actions conduct. (citing 16-17 ¶¶ Jefferson 77). Mont. at 844 P.2d at though driving Even her habits didn’t pertain directly County Commissioner, to her duties as ‘her decision directly to violate the law ability effectively relate[d] to her perform job is, her duties. That Sevalstad’s questions decision to violate the law Co., judgment.”

her ¶ Jefferson public trust positions held that teachers hold We have also the care and instruction of children. they are entrusted with because Co., MT Lodge Svaldi v.Anaconda-Deer ¶ (Svaldi), a teacher in the Anaconda Antoinette Svaldi 106 P.3d 548. alleged by system approximately years, was public school children. verbally assaulted or abused their parents several to have Svaldi, County alleging that her against 5. Svaldi filed an action County Attorney violated when the informed was discussing a deferred reporter paper from a local that his office was attorney exchange for Svaldi’s prosecution agreement with Svaldi’s Svaldi, resign teaching. from 10-11. We affirmed the promise to ¶¶ County, grant summary judgment District Court’s favor of the though charges ultimately no criminal were filed and no deferred even entered, prosecution agreement position ever because she was in a was allegations against of trust and the of assault her students public Svaldi, directly ability carry her to out her duties.” properly “went to 31. ¶ 22-23, County Gazette, In v. MT Billings Yellowstone ¶¶

¶37 public we held that an interim chief defender did not have a reasonable of in his testimony deposition employment for discrimination lawsuit that outweighed public right Following resignation to know. of the Defender, County Yellowstone Chief Public Curtis Bevolden (Bevolden) Co., was hired as the interim chief. Yellowstone 4.¶ Defender, (Drew), Deputy Bevolden fired the Chief Roberta Drew who applied position, had also for the interim chief an internal but grievance proceeding resulted Drew’s reinstatement. Yellowstone Co., against County, 4. Drew filed a federal discrimination suit ¶ Bevolden, Co., and other officials. Yellowstone 4. The Gazette ¶ requested deposition transcript Bevolden’s unredacted from the suit. Co., Yellowstone 7.¶ holding In public right clearly that to know was not

outweighed by any may privacy interest Bevolden have the redacted information, public duty we noted that defenders to safeguard have rights trial, the constitutional to counsel a fair speedy and are preserving public judicial system. essential to trust in our Yellowstone Co., 22. also held that the transcript We redacted information of the ¶ directly professional judgment, management “bears on Bevolden’s Defender, decisions he made as Interim Chief and his Public official Co., conduct.” being sought Yellowstone 23. Because the information ¶ directly person position public related to the official duties of a in a of trust, right outweighed Bevolden could not assert a to that public’s to know. Billings Billings, Gazette v. 2011 MT 293, 362 we decided Anthony (Anthony), 267 P.3d 11. Deanna a Police

Department Senior Administrative Coordinator authorized to use a card, police department investigated allegations credit was for that she had made personal purchases using thousands dollars of the card. Gazette, Billings Following investigation, Anthony 25. was ¶¶ 16-page issued a “due process notifying process letter” her of a due her, hearing respond allegations against detailing Gazette, investigation. Billings gathered during evidence 4. The ¶ Gazette, Billings request denied the Gazette’s for the letter. 5.¶ though employee, We held that even she was an administrative Anthony position public held a in a job trust because she was that monies.” Billings spend large public “allowed her amounts of Gazette, being sought directly 22. Because the information related ¶ funds, an investigation allegations misappropriating public “the very aspect job trust,’ of her it ‘position render[ed] ’’the Billings process properly subject due letter was disclosure. Gazette, However, pointed “every 22. we also out that not ¶ employee purchasing power with can no expectation have Gazette, Billings personnel her matters.” 27. Based on facts of the ¶ (“the alleged case large [public] money embezzlement of sums of over time”), protracted period we held relating information to a public employee’s implicit violation of the trust in her duties Gazette, public. Billings should be released to the cases, Having prior reviewed our turn we to the case at bar. The information at issue in this identity case is limited to the Employees, including identifying job such as title and department, misconduct, as all other aspects including of the the misconduct, visited, nature of the investigation websites process, issued, and the discipline has been disclosed to the Gazette. Initially, specific allegations misconduct, we note that the accessing of websites, adult or pornographic analysis. are not a focus of this We public employee have held that a heightened privacy not entitled to protections simply because the information at issue was sexual in Smartt, nature. Harris v. 2002 MT 311 Mont. ¶ (Justice of the heightened Peace not entitled to privacy rights in pornography However, downloaded to county-owned computer). his public employee given neither is a less of a privacy right due to the sexual nature images of the information. The fact that viewed on Employees’ computers ‘had sexual content does not influence the Harris, analysis.” officials, not elected Employees averred that the were heads, high management. After in-camera review ofthe

department or Forms, Action the District Court did not make unredacted Corrective any particular position of any finding any hold regard public spending public safety. to or Our review ofthe trust with Additionally, unredacted forms does not convince us otherwise. not related to their duties. usage Internet was argued The Gazette has not to this Court that disclosure of titles, and distinct from the Employees’ positions separate names, necessary analyze respective was in order to their Employees’ expectations privacy. Rather, can argues the Gazette there be no reasonable identity in the if the

expectation public employee argues for misconduct. The Gazette that this employee was in holding follows from our decision Great Falls Tribune where we good public policy recognize fit is not

stated: an protecting identity in of a enforcement law officer whose sufficiently reprehensible conduct is to merit discipline.” Great Falls Tribune, 238 Mont. at 775 P.2d at 1269. reiterated this in We Daily Chronicle, 225, 859 However, Bozeman 260 Mont. at P.2d at 439. key there are distinctions between those cases and this one. First, prior discipline in both cases the was severe. See Great Falls (one Tribune, 775 P.2d at 1267 officer was fired and given option resign terminated); two others were or be Bozeman (officer Chronicle, Daily resigned 260 Mont. at P.2d at 436-37 after it recommended that he was not be allowed to continue law enforcement). given five-day Here the employees suspension were pay, cry being discharged resign. without a far from or forced to If we give were to the statement from meaning Great Falls Tribune the Gazette, action, urged by any disciplinary trivial, no matter how trump employee’s right privacy. would important Other distinctions in the positions case here are the held disciplined Employees positions and the relation of their Tribune, alleged misconduct. In Great Falls the being sought identities whose were were law enforcement officers who engaged had misconduct the line of their official duties. We held particular position that law enforcement officers hold a trust duty protect health, safety, due to their sworn the public Tribune, welfare. Great Falls 775 P.2d at 1269. Allegations of misconduct in apprehending suspect failing to injuries seek medical attention clearly duty. for his violate this Chronicle, allegations of we noted that Similarly, Daily in Bozeman counter to the conduct, duty, directly ran even while off criminal Daily crime. Bozeman duty uphold prevent the law and officer’s Also, Chronicle, 227, 859 position P.2d at 440. the officer’s similar police status as a cadet. No by the victim’s implicated was in this case. regard can be made with connection Employees’ that actions could be argues The Dissent Act, Fraud and Abuse illegal Computer conduct under the considered Use, Theft, Computer and Official as well as Montana’s Unlawful Dissent, However, charges criminal have statutes. 68. no Misconduct Notably, in this case. the Ninth U.S. contemplated been filed or are an employee’s has held that an misuse of Appeals Circuit Court of Computer Fraud and computer is not a crime under the employer’s 2012) (9th 854, 860 Nosal, (refusing Cir. Abuse Act. U.S. v. 676 F.3d personnel policies through policing employer read the CFAA as law). event, does not rise criminal the misconduct this case Tribune, in Great Falls illegal present to the level of conduct was Daily Chronicle, Billings Bozeman Gazette. Additionally, relating to previously we have held that matters protected public right misconduct can be from the to know.

employee Division, Rights public employees In Montana Human we held that possess privacy right personnel a in their files. 199 Mont. at personnel P.2d at 1288. The Court noted that files can include drug as problems, prison sensitive information such alcohol records, poor performance, wrongful work and tardiness-all forms of Div., Rights conduct. Mont. Human 199 Mont at P.2d at 1288. regarding employee’s alleged wrongful “A discussion an conduct precisely frequently constituted of communication that type Gazette, employer employee.” Billings occurred between the 48¶ (Morris, Rice, Baker, JJ., Div., dissenting) (citing Rights Mont. Human 1288). 199 Mont at 649 P.2d at The Court in Montana Human Rights recognized frequently pressure Division the fact that there is upon employee employer an to “communicate these matters to his Div., Rights ofhis boss’s office ....’’Mont.Human 199 Mont any assurance of 649 P.2d at 1288. Even without confidentiality, “employees the Court nevertheless concluded that normally reasonably expect kept would such communication would be Div., Rights Mont. Human 199 Mont at 649 P.2d at confidential.” Thus, allegation by public employee misconduct a does not summarily analysis. end the agreed, that the argues, The Gazette also and the District Court Policy public placed Use demonstrates that the its

City’s Acceptable usage. to Internet It further respect trust in the with resource, Internet, City while at work is a argues that misuse of the directly their fitness to trust that relates violation of However, discussion of perform public duty. evident from above cases, privacy hold the same level of in all public employees our not all having public employer. a disciplinary simply matters on basis of with prepared say providing public employees We are not their itself a computer public access to a on which to do work “evinces by policy. that can a violation of an Internet use Nor trust” be breached by prepared any policy any are to hold that violation of office we public simply in a of trust government employee results violation salary. pay employee’s because tax dollars To do so would be constitutionally holding tantamount to a that all citizens lose their guaranteed right privacy day they public employment. on the enter university automatically If do not lose their constitutional presidents by office,Missoulian, Mont. at 675 protections taking 207 P.2d certainly public the same would true for the thousands of other be employees. held, reaffirm today, Our cases that the past have we

“ ‘right privacy expectation, of turns on the reasonableness of the may vary, regarding which even the same information and the same [T]ime, of that information’... are recipient place status factors determination.”Missoulian, the reasonableness Div., (quoting Rights P.2d at 968 Montana Human Mont. at 199 1288). employee 649 P.2d at Where the status of the necessitates a high trust, high level of such as an elected official or level employee, expectation privacy may of in misconduct found to be be significantly Similarly, than for an employee. lower administrative may employee expectation privacy have a lower in misconduct duty trust, related to a of public responsibility spending such as money educating or children. Here, officials, are not elected high-level heads, management, department nor is there evidence that specific duty alleged performance to have been violated related to the merely of a trust function. The being sought information their disciplinary identities in relation to internal action for a violation of policy. society office We hold that willing accept would be as public employee’s expectation privacy reasonable a in his or her identity respect disciplinary with to internal matters when that trust, employee position is not in a the misconduct resulting duty in the discipline requiring was not violation of a high of public level trust. employs analysis The Dissent a Fourth Amendment and concludes had no in their expectation reasonable 74,75. Dissent,

computer protects misuse. The Fourth Amendment ¶¶ persons from unreasonable searches and seizures in the criminal criminal context. The misconduct in this case involved no conduct. Further, Dissent, by including the civil cases cited the extensive (7th Electronics, quote Glenarye 2002), from Muick v. F.3d Cir. employee privacy against involve claims raised employers sought who Rejection by information. of such claims the courts in these cases was appropriately premised upon employees’ lack of an Unlike employers. cases, as to their these there is here no Employees against claim the City. obtained the Employees’ information from the computers pursuant computer policy, use and proceeded discipline Employees. The question is whether the Gazette-a third party4s identifying entitled to the Employees. about the provided Montanans are a ‘heightened expectation privacy” under comparison Montana Constitution in to the U.S. Constitution, State v. 1993 Chevrolet Pickup, 2005 MT II, and Article Sections 9 and 10 of the Montana Constitution explicitly require balancing that a right of the to know and the to be conducted in this case. This Court’s precedent provides appropriate analysis the particular of the state here, constitutional provisions govern that regard without to Fourth Amendment jurisprudence approaches or federal to the issue. Having found that the Employees subjective

¶53 had an actual or society reasonable, that willing to find we must balance the Employees’ right privacy against to the merits of public disclosure.

B. Balancing Privacy with Right the Public to Know City argues The ¶54 risks mentioned in Missoulian with respect performance to present evaluations are in this case and confidentiality necessitate a need for disciplinary internal matters. Specifically, it asserts that it has an interest in the confidentiality of disciplinary measures in order to effectively address and react to misconduct without fear employer that and disciplinary criticisms publicly actions will be disseminated. It argues that honest and critical employers suffer, communications between and employees will and there could abe risk of vindictive use of the discipline process, which opportunity employee lacks an for the alleged misconduct, to rebut the if disciplinary subjected actions are public scrutiny. to only argument by The offered public the Gazette in favor of promotes fairness and thwarts To]penness

disclosure is that knowing the name and status of each cronyism.’Tt argues that without why Employee determine each Employee, public the cannot disciplined why employee of a different given punishment, was the same for similar conduct. public agency given punishment was a harsher of the agreed, holding public Court disclosure The District ‘foster[ ] a identifying action forms and information would corrective maintain[ ] institutions and the public public confidence officers.” accountability public Missoulian, However, general held in assertions that as we and public public disclosure will foster confidence institutions

public accountability public maintain officers are not sufficient Missoulian, strong interest. 207 Mont. at public establish already regarding P.2d at 972. The Gazette has received information Employees, investigation by City, the misconduct of the and discipline Employee. meted out to each If the is dissatisfied discipline City, chosen it has all the information it with Council, opinions objections City needs to voice its Mayor, newspaper. knowledge or the Public of the names of the any greater not provide individuals will with opportunity participate employment in the internal decisions of the City. officials, Unlike responsibilities over whom has action, Whitlock,

regarding ‘hiring, disciplinary supervision,” Mont, hire, responsibility 844 P.2d at it is the of the fire, discipline employees. necessarily its Such decisions involve a subjective determination on the part supervisor. nature of done, alleged misconduct, and the person making work be out, all disciplinary type discipline decision will affect the meted Flesh, even for the exact same violation. As we noted in these disciplinary employee’s decisions necessitate a review of the entire Flesh, personnel file. 786 P.2d at 9. Finally, to hold the general interests of ‘fairness and occurred,

prevention cronyism,” any allegations absent that such has outweigh employee’s privacy is sufficient to an interest all open would public employment public scrutiny. decisions to Decisions of whom to hire, discipline, are all promote, require or terminate decisions that a subjective by supervisors upon past performance, evaluation based character, scores, personality, past preclude test etc. Our cases such an expansive holding. of Employees’ expectation We conclude reasonable

¶59 regards disciplinary in their identities with to internal public merits of disclosure. clearly outweighs the limited proceedings interesting copy, or sensational news but may make ‘This in the interest.” disclosure is not we conclude Missoulian, P.2d at 972. by denying request the Gazette’s 2. Did the District Court err for costs?

attorney and fees to disclose the Having concluded that the District Court’s order error, we decline to address Employees’ identities was entered attorney fees. request Gazette’s WHEAT, McGRATH, BAKER and

CHIEF JUSTICE JUSTICES MORRIS concur. McKINNON, dissenting.

JUSTICE view, City employee expectation a has no reasonable my In using over the Internet a viewing pornographic materials a during hours-particularly policy work when there is City computer that use of the Internet specifically advises place which Moreover, may placement of a anonymous is not and be monitored. Form) (the Corrective Action into disciplinary report final and employee’s open file not transform the employee’s personnel does material over the Internet into a pervasive pornographic access to Court, activity. by misstating question as “whether the private in their identities in Employees expectation had an actual disciplinary proceedings, employer’s relation to internal not as to their added), knowledge usage,” Opinion, (emphasis of the Internet 20¶ other inquiry recognize privacy redefines the in order to interest that finding that the uniformly courts have held to be unreasonable. After “the Employees position were ‘hot in a trust” duty of a resulting discipline misconduct in the was not a violation trust,” high Opinion, the Court requiring level name, position, department City employee concludes that the of a view, my accessing pornography may public. not be disclosed to necessary positions not to decide are in it is whether trust,” “public because the do not have an reasonable, willing accept Montanans are as in the privacy, which accessed, they posted, enjoyed pornographic fact that material working public employer policy. while for a with an Internet use City employees subject City’s “Acceptable All are Use” policy, applies equipment, systems which to “all and tools used for networks, networks, communication, computer electronic local area Among things, policy prohibits Internet and e-mail.” other use of images.” It also City computers graphical to access or store “offensive security systems on prohibits ‘iujsing any means to defeat computer “propagation computer network” and the worms and Employees may ‘tu]se viruses.” are advised that of the Internet be by City.”Moreover, policy monitored states: City’s City. using Internet hosts are traceable to the Users City-provided they Internet accounts should not assume are any degree provided anonymity. Outside users who want to identify City machines associated with the easily. can do so [Emphasis added.] spring City conducted internal investigations activity City

into the Internet of five employees City-provided on computers ultimately and issued written Corrective Action Forms suspending employee each for five days pay. without The nature ofthe violations were set forth in the Corrective Action Forms as follows: Daily

1. logs employees of each of the five pattern showed a Ts]eeking pictures out ofwomen on the internet that were sexual in images adults,” nature.” These included “pictures “nude nature,” were pornographic “scantily clad adults that were inappropriate workplace.” for the Daily logs 2. also a pattern of‘te]xcessive showed amounts oftime being spent on non-work related searches while ... being compensated perform ... assigned duties.” 3. One ofthe employees had conducted blog, “[s]earches on foreign country image hosting Specifically, sites. links were found to a Polish site with adult content that contained file sharing functionality, subsequently increasing the potential of a virus threat City s computer network.” 4. Another employee had saved images “scantily four clothed and nude adults and pictures that were pornographic in nature.” 5. Yet another employee sought had “pictures out of women associated with escort services.” noted, City

As disciplined the Employees imposing days five suspension Although on each. suspensions pay, were without City did not dock pay employees of the for the “excessive”amount they of work time spent viewing had pornography. observes, As the Court requested by documents the Gazette already

have been disclosed. Opinion, However, certain ¶¶ information has been redacted from those documents-information that the Gazette contends the public has a constitutional to know. Specifically, the information redacted in the Corrective Action Forms name, includes the employee’s the employee’s position, employee’s department, and the name of the employee’s supervisor. Despite this Court’s knowledge-acquired through our in-camera Corrective Action Forms4hat some

review of the unredacted and/or were involved upper-level positions held enforcement, analysis apply knowledge refuse to in law we analysis by stating: ‘The averred resolving this case. We avoid the officials, heads, or department were not elected added). (emphasis But the Court high management.” Opinion, ¶ we, held because like the District positions knows what Court, documents, appeal. ofthe record on part reviewed the which are positions spite of our ignore Employees’ We nevertheless argument public and the that the has a precedent Gazette’s right discipline to assess whether the meted out constitutional the fairly. analysis incorporates avoid an that consideration of We by determining that the did not Employees’ specific positions Gazette (How it, argument given advance this could that the Gazette was not information?) and that “the District Court did make privy to that not any finding any particular position that hold regard public safety.” trust or spending public Opinion, with ¶ In failing recognize significance the of the redacted information to investigation, subjectively the Gazette’s we have limited the Gazette’s inquiry investigation and decided the direction the Gazette’s take. reporting provision embracing should Montana’s constitutional citizenry’s right premised right the to know is the on to have public-not information disseminated and available so that the this Court-may draw its own inferences and conclusions from the thereby information and make informed regarding decisions their governmental bodies. The unfiltered dissemination of information is fundamental to the exercise of Montana’s constitutional to know only and is limited where an individual has a privacy reasonable “clearly interest that exceeds” the merits of disclosure. Mont. Const, II, art. §9. Although the only argument “[t]he Court states that offered Gazette in favor of ‘[ojpenness promotes disclosure is that ” (second cronyism,’ fairness and thwarts Opinion, brackets in ¶ original), actually the Gazette has arguments advanced several in support request of its for disclosure-arguments which the Court fails First, acknowledge. argued has in violating Gazette that City’s Acceptable policy, Use acted to defeat the security system City’s computer on the network and potentially compromised City’s workplace by breaching security devices and introducing viruses from international pornography websites. While misconduct, specific allegations accessing Court states that “the websites, adult pornographic analysis,” are not a focus of this argues pornographic nature of Opinion, Gazette ¶ security and the breaches are relevant potential material determining society recognizes what as a reasonable “ ‘in the required We are to examine the interest privacy. Press, Inc. Dept. context of the facts of each case.’ ’’Associated v. Mont. Revenue, 160, 24, (emphasis 2000 MT 4 P.3d 5 ¶ omitted) Educ., Regents Higher Missoulian v. Bd. (quoting (1984)). Accordingly, we cannot examining security avoid the content of the material at issue and the posed by assessing threats the individuals’ actions when whether society recognize the interest I would as reasonable. thus do agree images Employees’ Tt]he not fact that the viewed on the computers primary ‘had sexual content does not influence the ” analysis.’ Opinion, seriously question 41. I society whether willing of a protect public employee who breaches security devices, exposing City’s computer thus damage network to malware, from viruses and other pornography order to view on a public computer during work hours. The pornographic nature of the important, material is in the context of all other factors. Second, the Gazette maintains that the has an interest

knowing whether violating are the law. The Gazette argues although charges filed, no Employee’s have been illegal conduct can be characterized Computer as under the Fraud and Act, Abuse 18 U.S.C. 1030. The points Gazette to several court § decisions which held that violating “acceptable have the terms of an use”policy may e.g. John, constitute a federal offense. See U.S. v. (5th 2010); F.3d Rodriguez, 271-73 Cir. U.S. v. 628 F.3d (11th (8th 2010); Teague, Cir. U.S. v. 646 F.3d Cir. cf. 2011). Significantly, Montana has its own criminal relating offenses to computer. 45-6-311(l)(a), MCA, the unlawful use ofa Section prohibits person knowingly a from or purposely “obtaining] the use of computer, computer system, computer or network without consent of City’s the owner.”The Acceptable policy clearly Use that establishes employees City are not authorized to computers use to access pornographic Arguably, materials over the Internet. Montana’s theft statute implicated by Employees’ is likewise the conduct. Pursuant to §45-6-30l(2)(a), MCA, person commits the offense of theft when the person obtains, purposely knowingly or deception, control over property (money another’s in the paid wages) purpose form of with the (the depriving City) the owner property. of that Montana additionally has an “official misconduct” statute that makes it “public “knowingly unlawful for a to perform[ ] servant” an act in an by law.” knows is forbidden public that the servant capacity official means “an officer 45-7-401(l)(b), MCA. ‘Public servant” Section 45-2-101(64)(a), (emphasis MCA government.” Section employee of added). right has the public establishes that the precedent This Court’s Falls activity employees. Great public unlawful to know about 103, 107, 238 Mont. 775 P.2d Sheriff, Cascade Co. Tribune Co. v. Dept., City v. Bozeman Police (1989); Daily Chron. Bozeman (1993). Furthermore, our 440-41 protects right know the to receive right

constitutional prosecute or commence government decisions of officials about charges The fact that ‘ho criminal have been investigation. criminal cart Opinion, puts the before contemplated,” filed or are ¶ right to know public is the information the has precisely horse-fehis public in order to the conduct of officials. evaluate Third, right that the has the public the Gazette also maintains City imposed on the discipline scrutinize whether seemingly significant was fair. While the Court finds it punishment meted out in other cases was “severe” while the so, Opinion, meted out in the case less punishment present was government discipline I such an assessment of left for believe best determine being presented citizens to after information. adequate with specifically argued during The Gazette before the District Court that given five-day same timeframe when the here were landfill suspensions, five received with also five- day suspensions taking City during trash outside the off-work right hours. The maintained that public Gazette has a to scrutinize discipline imposed question and to there is “some whether high-level employees” got distinction between who the same Likewise, punishment people appeal, “as the the landfill.” on again questions employees” Gazette whether “the status of the punishments City imposed-information accounts for the right which the Gazette maintains the has a constitutional know. Lastly, argues taxpayer the Gazette that a substantial amount of

money accessing on time the Employees spent was wasted has pornographic investigation materials that the likewise cost money taxpayers resources. The Gazette maintains funds, government spends public has an interest in how their just identity police had a as the to know the department employee misappropriated public Billings who funds in 522, 293, 22-27, 2011 MT Mont. 267 City Billings, Gazette v. 362 ¶¶ P.3d 11.

432 light foregoing, arguments of the public Gazette’s for merely seeking promote

disclosure cannot be dismissed as fairness cronyism. Rather, and Opinion, my thwart 51. opinion, ¶ particular arguments Gazette has set forth these as components of a general more argument that disclosure fosters public confidence in public accountability institutions and maintains public officers. Determining public whether documents must be disclosed requires balancing public’s right any competing to know with Const, II, §§9, interests.1 Mont. Again, art. the balancing must be done the context of the each facts of case. YellowstoneCo. Billings Gazette, 218, 20, 390, 143 v. 2006 MT 333 Mont. P.3d 135. A ¶ (1) person constitutionally has a protected privacy interest when (2) person subjective has an actual or expectation of society willing recognize privacy expectation that as reasonable. Co., (citing Lincoln Nixon, Yellowstone Co. Commn. v. ¶ 1998 MT 1141). 298, 16, 968 P.2d ¶ case, In this the District Court observed that neither party had disputed the prong subjective first of the test-actual or expectation of privacy-and the District Court thus found that “the Employees did expect they the fact having were public misused computers and the specifics regarding that misuse would be and private.”The remain determined, however, District Court further Employees’ subjective expectations of privacy were unreasonable light of their knowledge City had to monitor their Internet usage they and that anonymity had no respect with they sites In my judgment, visited. the District Court’s conclusion was correct, only not but also consistent with of numerous courts which public have considered a employee’s expectation

1The Court declines to address the threshold issue of whether the documents requested by II, purposes Gazette are documents for of Article Section requested already ‘because all of the “any documents have been disclosed” and further discussion as to whether these forms are considered documents has been Opinion, rendered requested moot.” 17. The entire contents ofthe documents have not disclosed, Moreover, caselaw, analysis been requires however. under our our a three- step process that public. Becky includes consideration of whether the documents are v. Dist., (1995). Butte-Silver Bow Sch. Finally, argued question has raised and public. whether the documents are For all of reasons, obliged these Doing so, I believe we are to address the issue. I would hold that investigation Corrective Action Forms are the result of an conducted employer meaning II, and are documents within the of Article Section pursuant Tribune, 1269-70; to Great Becky, Falls 775 P.2d at 197; Gazette, Billings Mont. at 906 P.2d at 2011 MT ¶ 29. any such policy negates expectation. decided that an Internet use (10th university 2002), F.3d Cir. a Angevine, v. 281 1130 U.S. in the of expectation privacy reasonable professor did not have a university computer had a computer given of his contents usage stating and that appropriate computer use policy explaining reasonable could not have a could monitored. The defendant be users university computer reasonable expectation privacy of because were and others should have been aware that network administrators Angevine, 281 F.3d at from the Internet. free to data downloaded view (4th 2000), Simons, government F.3d 392 Cir. 1134. In U.S. v. 206 in, of expectation privacy did not a reasonable employees have policy a that computers stored on their where stated information audit, employees’ and/or use of employer inspect, could monitor not placed employees they notice that could policy Internet. ‘This on activity reasonably expect private.” that their Internet would be Simons, Glenayre Elecs., F.3d at In Muick v. 280 F.3d 741 206 (7th 2002), employee did not of expectation Cir. have a reasonable his had privacy laptop provided by employer employer in a where the employee inspect laptop. that it could rationale set notified opinion forth in the court’s is useful: right Glenayre

Muick had no in that had privacy computer of right use there a workplace. lent him for in the Not that can’t be of to an privacy employer-owned equipment ... furnished use of employee place employment. employer for in his If the employee’s office with or file or other equips a safe cabinet private his he that receptacle keep papers, which to can assume Glenayre private. the contents ofthe safe are But had announced inspect laptops that it could that it furnished the use of its destroyed of employees, expectation this reasonable privacy might that Muick had .... The were laptops have Glenayre’s property and it could attach whatever conditions They their use it wanted to. didn’t have be reasonable conditions; workplace is so computers but the abuse of access to (workers being prone gossip, them as of common to use media distraction) titillation, entertainment other right reserving inspection being of so far from unreasonable might thought the failure to irresponsible. do so well be (citations omitted). Muick, 280 F.3d 743 authority finding public employer’s computer Additional that a expectation

policy precludes privacy reasonable includes Wasson (N.D. Dist., v. 4 2d College Supp. Sonoma Co. Junior F. 905-06 1997) all stored (policygiving employer Cal. to access

434 employees’ computers extinguished any expectation

on reasonable Reno, privacy computers); files stored on the Bohach v. (D. 1996) Supp. (police F. 1234-35 Nev. officers did not have a expectation system in their use of a pager reasonable police notifying because the chief had issued an order all users that Hamilton, messages logged); their would be U.S. v. F. 2d Supp. (E.D. 2011) (public employee 653-54 Va. school lacked a expectation reasonable in emails that stored were on his computer computer policy work because the use stated that subject computer inspection); contents of the were Am. Postal cf. (6th 1989) Serv., Workers Union v. U.S. F.2d Postal Cir. (postal had no reasonable in their regulations lockers because postal bargaining and collective agreements stated that subject both the lockers were to examination time). inspection any at Although authority largely above-cited is in the context of Fourth Amendment jurisprudence, the reasonableness of an is, expectation privacy-fehat society of recognize what will as legitimate-does vary depending upon not argument whether the is made under the Fourth Amendment or under Montana’s constitutional provision regarding right an individual’s privacy.2 precedent of Our recognizes validity of federal caselaw in the context of a right-to- analysis, know regarding whether a society interest is one that willing recognize as reasonable. In Rights Mont. Human v. Div. City Billings, 434, 442-43, 649 199 1283, 1287-88(1982), Mont. P.2d of applied by we the standard set forth Supreme Court in Katz v. U.S., (1967), 389 U.S. 88 S. Ct. 507 to evaluate what constituted expectation a reasonable of in relation right to know. Katz was the landmark case that defined a constitutionally protected expectation privacy, Amendment, of under the Fourth as consisting of subjective a component and a reasonableness component. This Court applied cases, has that test in Hill, search-and-seizure e.g. see State v. 184, 24, MT 2004 322 752; Allen, Mont. ¶ State v. 2010 214, 47, 357 MT Mont. right-to-know cases, P.3d ¶ see e.g. Div., Mont. Rights 442-43, Human 649 P.2d at 1287-88; Tribune, Great Falls 1268; Mont. 775 P.2d at

2 It is well established that Montana’s Constitution affords individuals broader protection Gryczan State, than does the federal constitution. v. 283 Mont. 433, 448-49, 942 112, 121-22 (1997); Malkuch, 60, 12, 336 P.2d State v. 2007 MT ¶ 219, 154 P.3d 558. cases, e.g. Gazette, pure privacy MT and in see Billings ¶ 510, 512-13(1982); Behan, 280, 282-83, 639 P.2d v. 196Mont. Hastetter (1997); Nelson, 231, 239-42, P.2d 446-48 v. State 449-50, Gryczan, 283 Mont. at 942 P.2d at 122. recognize cannot as accept I that Montana citizens would Div.,

reasonable, Katz, Rights or other under Mont. Human identities, precedent, willingness positions, this Court’s to shield the who access departments, supervisors pornographic computers during material on their work work hours having computer usage after their would be been warned they anonymity. I am not expect monitored and that cannot also willing exception to carve out an to the well-established test for determining constitutionally expectation privacy protected because protect particular employees we want to from embarrassment. expectation privacy depends society reasonableness of an on what legitimate, logically depend deems is and such a test cannot on claim whether pursuant is asserted to search-and-seizure jurisprudence precedent interpreting right to know. Contrary reasoning, City’s to the Court’s Opinion, see the final

placement disciplinary report Employee’s personnel in each give file does not protections document that it otherwise would not Employee’s have. The privacy expectation extinguished by has been Acceptable policy by Use and is not placing resurrected Corrective Action personnel Form into a file. Actions ofthe in choosing to access websites at work on a computer with policy effect, Internet use for which there was no reasonable privacy, subsequently private through cannot be made City placing actions of the the disciplinary report protective into the confines of the Employees’ personnel files. To allow a employer potentially subvert the concealing know the contents of objectionable in personnel material a file would undermine the public’s ability functioning to evaluate the ofgovernment and whether meting discipline fairly it is out evenhandedly. and protecting rationale for from disclosure the of a contents personnel Arguably, file does not exist in this case. the Corrective Action Form is more akin to the “due in process Billings letter” Gazette, 293, job 2011 MT which we noted was different from the performance university Missoulian, evaluations of presidents in employment applications in Mont. Rights Div., Human 649 P.2d 1283. As we stated Div., Rights Mont. Human 199 Mont. at 649 P.2d at 1287-88: contain, Employment reasonably records among would less information, family problems, sensitive references to health observations, problems, past present employers’ criticism and tests, records, IQ military performance scores from tests records, matters, drug problems, many or alcohol and other prison willingly publicly. of which most individuals would not disclose records, testing (e.g., past employment Some and disclosure use) records, necessary prison drug part many or alcohol applications employment; may compiled for other information be by present employers may employee or an be submitted job. explanation poor performance of absence from work or on the frequently pressure upon employee It is clear that there is employer communicate these matters to his in the of his application employment promotion. boss’s office or on an for while, know, respondents gave employees And as far as we their specific confidentiality, no assurances of we that believe reasonably employees expect normally would such communication kept would be confidential. Significant to our decision in Missoulian was a policy written

provided confidentiality of self-evaluations. We noted that policy Board’s written evaluation stated that the self-

evaluations would confidential and meetings be the evaluation anonymous would be conducted in “executive session.” The interviewees who commented on presidents’ performance were promised confidentiality. undisputed university It is that the six presidents actually expected job performance evaluations private. [They] would be submitted their self-evaluations expecting confidentiality.

Missoulian, 207 Mont. at 675 P.2d at 968. held that We these expectations Missoulian, were reasonable.

675 P.2d at 970. contrast, Acceptable Use policy specifically here advises confidentiality there is no in the materials and the activities conducted employee’s computer. Furthermore, on an nothing Corrective Action Form contains sensitive information akin to an record, employment family references, such problems, as health prison records, or drug and alcohol issues. The Action Form Corrective is the report final of the discipline public employer imposed has on its employee. The requesting Employees’ Gazette is not entire files, records, personnel employment evaluations; or performance it is requesting the final reporUthe product-ef City’s investigation end employees. into misconduct of its provided ‘Government offices are for the sole may The avoid facilitating agency. employee the work of an

purpose them at belongings by simply leaving at work exposing personal 1492, 1501-02 709, 725, 107S. Ct. Ortega, home.” O’Connor v. 480 U.S. (1987) Likewise, paid by (plurality). public employee who privacy viewing taxpayers does not have reasonable during City computer, particularly hours on a when pornography work computer he/she has been advised use is not anonymous. “the Employees’ District Court concluded that because circumstances, expectations under these were unreasonable privacy rights clearly

their do not exceed the merits of Const, II, disclosure.” Mont. I agree art. with this conclusion. § Although public may consequence humiliation be an unfortunate disclosure, it is not a defense to disclosure. To the extent the Court otherwise, strongly disagree. holds I joins

JUSTICE COTTER the Dissent of JUSTICE McKINNON.

Case Details

Case Name: Billings Gazette v. City of Billings

Court Name: Montana Supreme Court

Date Published: Nov 8, 2013

Citation: 313 P.3d 129

Docket Number: DA 12-0739

Court Abbreviation: Mont.