CITY OF GRAND FORKS, а municipal corporation, Petitioner, Appellant and Cross-Appellee, v. GRAND FORKS HERALD, INC., Respondent and Appellee, S. D. Knutson, Respondent, Appellee and Cross-Appellant.
Civ. No. 9889.
Supreme Court of North Dakota.
June 25, 1981.
We have said that the time prescribed by a rule within which an appeal may be taken from a judgment is mandatory and jurisdictional. See, e. g., City of Grand Forks v. Henderson, 297 N.W.2d 450 (N.D. 1980). The time in which Mary Ann could take an appeal began with the mailing of the letter from her attorney to George‘s attorney of February 20, 1980, informing him that judgment had been entered. It expired long before the notice of appeal was filed on February 5, 1981.
The motion to dismiss the appeal is granted.
ERICKSTAD, C. J., and PEDERSON, PAULSON and SAND, JJ., concur.
Jay H. Fiedler, Asst. City Atty., Grand Forks, for petitioner, appellant and cross-appellee City of Grand Forks.
Thomas John Kuchera, Grand Forks for respondent and appellee Grand Forks Herald, Inc.
Mack, Moosbrugger, Ohlsen, Dvorak, Grand Forks, for respondent, appellee and cross appellant S. D. Knutson; John H. Moosbrugger, Grand Forks, on brief.
The City of Grand Forks appeals from a judgment entered against it by the District Court of Grand Forks County on October 29, 1980. The judgment decreed that the Grand Forks Herald had a right to inspect the personnel file of S. D. Knutson, the former chief of police for the City of Grand Forks, becаuse the personnel file maintained by the city‘s personnel director constituted a “public record” within the meaning of
Knutson was employed by the City as chief of police until August 20, 1973, when he resigned from such position. In 1980,
The City commenced this action on August 25, 1980. In its complaint, the City stated that the documents in the personnel file of Knutson are not subject to disclosure, notwithstanding the provisions of
A hearing was held on September 17, 1980, in which Graba testified as to particular items generally found in personnel files maintained by the City. Graba did not testify as to which documents were specifically contained in the Knutson file but he testified that the personnel files maintained by the City generally contained the following documents: work evaluations, salary changes, IRS forms, insurance matters, retirement matters, union dues, medical insurance coverage, credit reports, and reports relating to mental illness or alcoholism. The distriсt court issued its findings of fact, conclusions of law, and order for judgment on October 20, 1980. The district court determined that the City had a right to declaratory relief under
The City filed its notice of appeal on October 29, 1980, and on November 4, 1980, the City presented a motion to the district court for an order staying the enforcement of the judgment during the pendency of the appeal. The district court issued an order which stayed the enforcement of the judgment during the pendency of the appeal on November 4, 1980.
Knutson presented a motion for a new trial and an alternative motion to amend the judgment on November 7, 1980. Knutson also submitted to the district court a petition for supplemental relief. He requested that the district court make an in camera inspection of his personnel file to determine if any of the contents of the file did not constitute a public record. This court issued an order on January 9, 1981, which remаnded the case to the district court for further proceedings. The district court issued an order on January 28, 1981, in which the court not only denied Knutson‘s request for supplemental relief, but also his motions for a new trial and for an amended judgment. The district court did not conduct an in camera inspection of Knutson‘s personnel file. Knutson filed a notice of appeal from the judgment and from the January 28, 1981, order issued by the district court.
The parties to this appeal present three issues for our consideration:
- Whether or not Knutson‘s right to due process and equal protection of the law under the Fourteenth
Amendment to the Constitution of the United States, and Article I, § 1 of the North Dakota Constitution was violated by the procedures used by the district court in the case. - Whether or not municipal personnel files are public records subject to disclosure pursuant to
§ 44-04-18, N.D.C.C. - Whether or not the disclosure of the contents of his personnel file would constitute an impermissible invasion of Knutson‘s privacy.
I
The first issue concerns whether or not Knutson‘s right to due process and equal protection was violated by the procedures used by the district court. Knutson contends that the rapid scheduling of the trial did not allow him any time to рrepare for trial or to conduct discovery proceedings. Trial was scheduled two days after Knutson submitted his answer. In addition, Knutson contends that the failure of the City to give notice of entry of judgment was a defect which renders the notice of appeal defective.
Knutson contends that his rights to due process were violated in three areas. First, he contends that he did not have time to prepare for trial and therefore did not have adequate representation of counsel. Second, Knutson contends that any information containеd in his personnel file is not subject to inspection because disclosure would violate his right to pursue an occupation and protect his reputation under
Rule 57 of the North Dakota Rules of Civil Procedure provides as follows:
“RULE 57—DECLARATORY JUDGMENTS
“The procedure for obtaining a declaratory judgment pursuant to
chapter 32-23 , shall be in accordance with these rules, and the right to trial by jury may be demanded under the circumstances аnd in the manner provided in Rules 38 and 39. The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. The court may order a speedy hearing of an action for a declaratory judgment and may advance it on the calendar.”
The procedure in actions for a declaratory judgment is similar to that in an ordinary civil action. However,
The purpose of the provision is to enable the court to expedite adjudication in a proper case in order to prevent the accrual of damages or to further the early adjudication of a controversy. 6 Moore‘s Federal Practice ¶ 57.29; Wright & Miller, Federal Practice and Procedure: Civil § 2751 and § 2768. The fundamental requisite of due process of law is the opportunity to be heard. McVeigh v. United States, 78 U.S. (11 Wall.) 259, 20 L.Ed. 80 (1870). However, the nature of procedural due process is such that the procedures used are not inflexible. Cafeteria and Restaurant Workers Local 473 v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). The procedure authorized by Rule 57 for a speedy hearing in an action for a declaratory judgment does not violate due process because it advances many worthy objectives with a minimal degree of interference with personal rights. In addition, Rule 57 must be libеrally construed to attain the objectives of the declaratory remedy, that is,
Knutson contends that any information contained in his personnel file is not subject to inspection because disclosure would violate his right to pursue an occupation and protect his reputation under
“Section 1. All men are by nature equally free and independent and have certain inalienable rights, among which are those of enjoying and defending life and liberty; acquiring, possessing and protecting property and reputation; and pursuing and obtaining safety and hаppiness.”
In the absence of the actual disclosure of the contents of his personnel file, it is impossible to conclude that such disclosure could violate Knutson‘s rights to pursue an occupation and protect his reputation. No person or entity responsible for disclosure of the contents of Knutson‘s personnel file may act with impunity.
Knutson also asserts that he was never given notice of the items to be placed in his personnel file and was not given the opportunity to review the contents of his personnel file. Knutson bases his argument on thе fact that teachers have the right, under
The second issue is concerned with whether or not municipal personnel files are public records subject to disclosure under
“44-04-18. Access to public records—Penalty.—
“1. Except as otherwise specifically provided by law, all records of public or governmental bodies, boards, bureaus, commissions or agencies of the state or any political subdivision of the state, or organizations or agencies supported in whole or in part by public funds, or expending public funds, shall be public records, open and accessible for inspection during reasonable office hours.
“2. Violations of this section shall be punishable as an infraction.”
“Section 6. Unless othеrwise provided by law, all records of public or governmental bodies, boards, bureaus, commissions, or agencies of the state or any political subdivision of the state, or organizations or agencies supported in whole or in part by public funds, or expending public funds, shall be public records, open and accessible for inspection during reasonable office hours.” [Art. amd. 103, approved November 7, 1978.]
This issue is one of first impression. The City contends that because
The City is a political subdivision of the State and, as such, all of its records are public records open for inspection equally to members of the public, which includes the news media. A personnel file maintained by a personnel director of a political subdivision is a public record open to public inspection. While the City cites a number of cases in support of the proposition that thought рrocesses, work product, preliminary data, and work sheets and notes are not records, no specific exception exists in our law which would permit such matters to be withheld from public scrutiny. We express no opinion on whether or not certain implied exceptions exist on the question of what is or is not a record within the meaning of
The determination of what constitutes а public record is resolved by the provisions of
III
The final issue is concerned with whether or not the disclosure of the contents of his personnel file would constitute an impermissible invasion of Knutson‘s right of privacy.3 Knutson asserts that a right of informational privacy exists under both the Federal and the State Constitutions which would prevent the disclosure of the contents of his personnel file. A generalized right of privacy is not mentioned in the Federal or State Constitution; thus, if a right of informational privacy does exist it has not yet been recognized.
Recent decisions of the United States Supreme Court which have established a right of privacy have done so in cases involving governmental intrusions into matters relating to marriage, procreation, contraception, family relationships, child rearing, and education. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973); Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); Allgeyer v. Louisiana, 165 U.S. 578, 17 S.Ct. 427, 41 L.Ed. 832 (1897). The right of privacy was seen, in part, as emanating from the penumbras surrounding the express provisions of the Bill of Rights. In the “privacy” cases, the Supreme Court has protected privacy in the sense in which it confers independence in making certain kinds of important decisions, and in protecting an individual‘s interest in avoiding disclosure of personal matters.
The Supreme Court has recognized a narrow right of privacy for the person, home, and political associаtion. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969); NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). However, in its most recent decision involving a claim of a right to privacy, the United States Supreme Court has limited these zones of privacy. Whalen v. Roe, 429 U.S. 589, 604 n. 32, 97 S.Ct. 869, 878 n. 32, 51 L.Ed.2d 64 (1977). While the Court recognized in Whalen v. Roe, supra, that the right of privacy embraced a general individual interest in avoiding disclosure of personal matters, the Court concluded that New York‘s statutory scheme for maintaining computerized records of prescriptions for certain dangerous drugs did not constitute an invasion of any liberty or right protected by the Fourteenth Amendment even though the patient identification requirement imposed by the law could have a direct effect on the reputation or independence of the patients. Thus, the protection of a person‘s general right to privacy—his right to be left alone by other people—is, like the protection of his property and his life, left largely to the law of the individual States. Katz v. United States, supra.
While the Supreme Court‘s decision in Whalen v. Roe, supra, implies that the right of privacy does include a general individual interest in avoiding disclosure of personal matters, the limit of the right in such circumstances has not been defined. Congress has enacted a statute which is based upon the assumption that a constitutional right of privacy exists. Privacy Act of 1974, P.L. 93-579,
For reasons stated in this opinion, the judgment of the district court is affirmed.
ERICKSTAD, C. J., and PEDERSON and SAND, JJ., concur.
VANDE WALLE, Justice, concurring specially.
I concur in the opinion written for the court by Justice Paulson. I do sо because I believe that the personnel records were kept by the City in its ordinary course of business; that the public has a right to be informed as to its public officials and employees; and that the records therefore are public records within the meaning of the pertinent statutory and constitutional provisions. By so doing I do not imply that every scrap of paper a public official or a public employee might retain in the course of his tenure with a public body is a public record. The pertinent statutory and constitutional provisions do nоt define the term “record.” Justice Paulson in the majority opinion has concluded that the term, as used in these provisions, implies a document of some official import to be retained by a public officer or employee in the course of his public duties. I agree with that conclusion.
If the City and Knutson believe that maintenance of personnel files is necessary but such records should not be open to public inspection, their remedy is by the legislative process. Both our statute and our constitutional provision specify that “except as otherwise provided by law” public records are open to the public for inspection. The phrase “except as otherwise provided by law” obviously implies authority in the Legislature to mаke certain records confidential, and there are statutes which do exactly that. Recent attempts to make certain records confidential have resulted in statements that such legislation will result in a persistent attempt in the future to close to public scrutiny even more records and therefore no such legislation should be enacted. There appears to be little doubt that the constitutional provision expresses a policy of open records, but it also expresses the policy that the Legislature has the authority to dеtermine whether or not a specific record should be confidential.
Finally, while I agree with the majority opinion that our Constitution contains no express right of privacy, I do not read it as foreclosing in the future any and all such challenges to disclosure of certain information in records retained by public agencies, in the absence of a statute making that information confidential. As an example, it was apparently believed necessary to provide that the medical records of patients at the University of North Dakota Medical Cеnter Rehabilitation Hospital should be kept confidential.
SAND, J., concurs.
PAULSON
JUSTICE