No. 89-86 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

GREAT FALLS TRIBUNE COMPANY, INC., ., - - < -. -> h'.' Petitioner and Respondent, % _- .% C: 

-vs- . 1 1- . c-- 

- -?", 

/-- 

CASCADE COUNTY SHERIFF, BARRY MICHELOTTI, c) - I 

and CITY OF GREAT FALLS, a Municipal corp., -+--J \_I 

-2 

Respondents and Appellants. \--' 

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c. , . f-2 < '. 

5.". .-'- 

k, 

APPEAL FROM: ~istrict Court of the Eighth ~udicial ~istrict, 

In and for the County of Cascade, 

The Honorable Thomas ~c~ittrick, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

David V. ~liko, City Attorney, Great Falls, Montana 

For Respondent: 

Peter Michael Meloy, Helena, Montana 

Filed: 

Submitted on Briefs: May 18, 1989 

Decided: July 6, 1989 

Clerk 
Mr. Chief Justice J. A. Turnage delivered the Opinion of the 

Court. 

The City of Great Falls appeals from an order of the 

District Court for the Eighth ~udicial ~istrict, Cascade 

County, that the City must publicly disclose the names of 

three law enforcement officers disciplined as the result of a 

November 30, 1988, incident. We affirm. 

The issue is whether the privacy rights of the individual police officers exceed the merits of public disclosure of 

the names of the officers in the Great Falls Tribune. 

On November 30, 1988, certain police officers and 

deputies from the Cascade County Sheriff's Office engaged in 

a high-speed automobile chase through the City of Great Falls 

in an attempt to apprehend a suspect. The suspect left his 

car and continued his flight on foot. A deputy sheriff 

attempting to stop the suspect ran his squad car up on a city 

sidewalk and struck the suspect. 

When the suspect was taken to jail, a jailer noticed 

that the suspect had suffered injuries to his head and face. 

The jailer brought the injuries to the attention of the 

sheriff and an investigation followed. 

As a result of the investigation, a sheriff Is deputy 

was suspended for a period of time, one police officer was 

fired, and two other police officers were given the option to 

resign or be terminated. They resigned. A reporter from the 

Great Falls Tribune (~ribune) had been given access to an 

"initial offense report" which contained the names of a 

number of officers involved in the incident without specifying how they were involved. He attempted to obtain the names 

of the officers disciplined. The reporter asked the Cascade 

County Sheriff, the Great Falls city police chief, and the 

Great Falls City Manager for the names of the officers disci- 
plined, but all three refused to disclose the names on the 

grounds of the officers' right to privacy. 

The Tribune filed a petition in District Court seeking 

an order directing the defendants to release the names of the 

law enforcement officers who had been disciplined. The City 

of Great Falls (City) moved to dismiss and filed an answer 

asserting the individual officers' right to privacy under 

Article 11, Section 10 of the Montana Constitution. The 

court held a hearing at which two witnesses for the Tribune 

testified. The City did not call witnesses but filed an 

affidavit by the Police Chief which was entered by 

stipulation as part of the record. 

On January 17, 1989, the District Court issued its 

opinion and order directing the City to disclose the identity 

of the officers who were disciplined. The court noted that 

the Cascade County Sheriff had disclosed the name of the 

deputy sheriff to the Tribune and had been dismissed from the 

lawsuit. 

In analyzing the issue before it, the District Court 

conducted a balancing of two rights guaranteed under the 

Montana Constitution. The right to know is set forth at Art. 

11, Section 9, Mont.Const.: 

Section 9. Right to know. No person 

shall be deprived of the right to examine documents or to observe the deliberations 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. 

The right of privacy is set forth at Art. 11, Section 10, 

Mont.Const.: 

Section 10. 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 court determined that "the demands of individual privacy 

as shown on this record do not clearly exceed the merits of 

public disclosure." It ordered the City to provide the 

Tribune with the names of the officers disciplined as a 

result of the November 30th incident, along with information 

on which officers were terminated and resigned. 

Before conducting our analysis, we will review recent 

cases in which this Court has been asked to balance the right 

of privacy against the right to know. 

This Court has used a two-part test in determining 

whether a person has a constitutionally-protected privacy 

interest. Montana Human Rights Div. v. City of Billings 

(1982), 199 Mont. 434, 442, 649 P.2d 1283, 1287. First, we 

determine whether the person has a subjective or actual 

expectation of privacy. Next, we evaluate whether society is 

willing to recognize that expectation as reasonable. In 

Human Rights, the issue was whether the Human Rights Division 

had the authority to subpoena employment records of employees 

other than the employee who was accusing the employer of 

discrimination. The Court concluded that the other employees 

had a high expectation of privacy worthy of protection under 

Art. 11, section 10, Mont.Const., since their files presumably contained sensitive information. his Court next balanced the right of privacy of the other employees against the 

State's interest in prohibiting employment discrimination, 

using as its standard whether there was a compelling state 

interest which overrode the right to individual privacy. 

Human ~ights, 649 P.2d at 1288. his Court concluded that 

the State had a compelling interest. The Court ordered that 

the information sought by the Human Rights Division must be 

released, but that a protective order must also issue to 
prevent release of names of the other employees outside of 

the investigating agency. 

In Missoulian v. Board of Regents of Higher Educ. 

(1984), 207 Mont. 513, 675 P.2d 962, this Court was asked to 

balance the public right to know about the performance of a 

university president against the president's expectation of 

privacy in job performance evaluations. After determining 

that the university president had a constitutionallyprotected privacy interest, the Court used as its standard 

the Art. 11, Section 9, Mont.Const., test of whether the 

demand of individual privacy clearly exceeded the merits of 

public disclosure. Missoulian, 675 P.2d at 970. The Court 

ruled that closed job performance evaluations were justified 

because the individual privacy interest of the university 

president clearly exceeded the public's right to know. 

Missoulian, 675 P.2d at 973. 

In Belth v. Bennett (Mont. 1987), 740 P.2d 638, 44 

St.Rep. 1133, the balance was between insurance companies' 

privacy interests in national regulatory reports on them and 

the public's right to disclosure of the reports. The Court 

first determined that the insurance companies had a 

constitutionally-protected privacy interest. The Court then 

stated the balancing test as whether the demand of individual 

privacy clearly exceeded the merits of public disclosure. 

Belth, 740 P.2d at 641. Because the Court found that there 

were ways other than reviewing the reports to obtain similar 

information about insurance companies' performance and financial status, and because the reports had been represented to 

the insurance companies as confidential during data gathering, the Court affirmed the ~istrict Court in denying release 

of the requested information. 

In Engrav v. Cragun (Mont. 1989), 769 P.2d 1224, 46 

St.Rep. 344, we weighed the public right to know about county 
law enforcement operations, as represented by appellant's 

desire to do a school research project, against the privacy 

interest of persons named in daily logs of telephone calls, 

case files of criminal investigations, pre-employment investigation reports, and a list of persons arrested. We determined that the individuals whose names would be disclosed by 

release of the information had an actual expectation of 

privacy which society recognized and that this privacy interest outweighed the appellant's right to do a study for his 

school research project. We stated that no compelling state 

interest justified invading the privacy of the individuals 

affected. Engrav, 769 P.2d at 1229. 

In the present case, the ~istrict Court declared that 

"it is not good public policy to recognize an expectation of 

privacy in protecting the identity of a law enforcement 

officer whose conduct is sufficiently reprehensible to merit 

discipline." We agree. The law enforcement officers in the 

present case may have had a subjective or actual expectation 

of privacy relating to the disciplinary proceedings against 

them. However, law enforcement officers occupy positions of 

great public trust. Whatever privacy interest the officers 

have in the release of their names as having been disciplined, it is not one which society recognizes as a strong 

right. 

On the other hand, the public has a right to know when 

law enforcement officers act in such a manner as to be subject to disciplinary action. The public health, safety, and 

welfare are closely tied to an honest police force. The 

conduct of our law enforcement officers is a sensitive matter 

so that if they engage in conduct resulting in discipline for 

misconduct in the line of duty, the public should know. We 

conclude that the public's right to know in this situation 

represents a compelling state interest. 
When we balance the limited privacy interest of the law 

enforcement officers against the public's right to know which 

officers have been disciplined for unlawful acts, we conclude 

that the ~istrict Court was correct. The privacy interest of 

the officers does not clearly exceed the public's right to 

know. We note that we are not ruling that the entirety of 

any personnel files must be revealed. The ~istrict Court 

ordered only the release of the names of the officer who was 

terminated and those who resigned. 

Affirmed. 

We concur: