No. 82-269 IN THE SUPREME COURTOF THE STATEOF MONTAPJA 1984

THEMISSOULIAN, a division of Lee Enterprises, Inc., Plaintiffand Appellant,

BOARD OF REGENTS OF HIGHER EDUCATION and JOHN RICHARDSON, COMMISSIONER OF HIGHER EDUCATION, Defendantsand Respondents.

APPEAL FROM: District Court of the First Judicial District, Inand for the County of Lewis & Clark, TheHonorable John 14. McCarvel, Judgepresiding.

COUNSELOF RECORD:

ForAppellant: Miloragovich, Dale & Dye;Harold V. Dye argued, Missoula,Montana For Respondents: G. Steven Brown argued, Helena,Montana LeRoy Schramm,Montana University System, Helena, Montana ForAmicus Curiae: Jayne Mitchell for Dept. of Administration, Helena,Montana



### -- Submitted: October 31,1983 Decided: January 23, 1984

ClerkMr. Justice Fred J. Weber delivered the Opinion of the Court. Plaintiff Missoulian appeals from summary judgment granted by the FirstJudicialDistrict Court,Lewis and Clark County. The action was brought by the Missoulian under the Montana Constitution and Open Meeting Act, challenging closure by the Board of Regents (Board)of a jobperformance evaluation meeting concerning presidents of the six university system units. The District Court granted summary judgment,upholding the legality of themeeting closure. The Missoulian appealsand the State Department of Administration appears as amicus curiae. We affirm the judgment of the DistrictCourt. The issues are: 1. Whether job performance evaluations of university presidents, which elicit candid and.subjective comments from Board members, anonymous interviewees, and the presidents themselves, are matters of individual privacy protected by the Montana Constitution or whether the privacy clause protects only matters of family or health not affecting job performance? 2. Whether the university presidents' privacy interests in job performance evaluations clearly exceed the public's constitutional and statutory right to know, particularly in light of the Board's contention that confidential evaluations

are in thepublic interest? 3. Whether closure of job performance evaluation meetings is necessary to protect the presidentst privacy interests or whether alternativemethods exist for protecting individualprivacy in evaluation meetings? On January 

### 7, 1980, the Board adopted procedures for evaluation of university presidents. The Board and the Commissioner of Higher Education (Commissioner) are responsible for hiring, firing and supervising thepresidents. The Performance Evaluation Policy provided for two levels of evaluation, an annual review and a more thoroughperiodic evaluation, which was to occur every three years. Annual review involved a president preparing a statement of goals and objectives for his institutionand an informal and confidential discussion of perfarmance between the president and the Board. In 1980, Presidents William Tietz (Montana State University), Fred DeMoney (Montana College of Mineral Science and Technology), James Erickson

(Northern Montana College)

## , and Robert Thomas (Western Montana College) were evaluated under annual review procedures. Periodic evaluation was, by contrast, more formal and structured. A president undergoing periodic evaluation was to prepare a thorough evaluation of his own performance and of the performance of his administration in the areas of academic administration and planning, fiscal management, problem solving and decisionmaking,personnelmanagement and appointmentsand external relations. The Commissionerwas to interviewpersons representativeof faculty, staff, students, administration, alumni, community leaders and elected officials on various aspects of the president's performance. TheBoard would then discuss in confidencewith the president the self-evaluation and results of the Commissioner's interviews. In 1980, Presidents Richard Bowers (University of Montana) and John Van de Wetering (Eastern Montana College) were evaluated under periodic review procedures. Prior to theMay 3,1980 meeting, the Commissioner,John Richardson (Richardson) conducted 74 interviews concerning the jobperformance of Presidents Bowers and Van deWetering. The Commissioner gave each interviewee an assurance of confidentiality at the beginning of the interviewand in the letter requesting the interview. The interviews covered theissues listed in the Board's job performance evaluation policy. In conducting his interviews, Richardson used what he termed a "directed interview format." Richardson would ask each interviewee a series of open-ended questions concerning the president's performance. Interviewees were asked for their evaluations of the president's strengthsand weaknesses. Using the topic areas of his interview sheet as

an outline,Richardson then prepared a summaryof the results of the interviewsbroken downby category of interviewee. In presenting his summary at the May 3meeting,Richardson took

care that particular interviewees could not be identified fromhis remarks. TheBoard's Performance Evaluation Policy specifies that "[tlhe principle of confidentiality will be observed throughout the review process" and that the principle will "apply to written documents and to discussions among all those who participate." The policy further specifies tha.t the eva.luationswill be conducted in "executive session." At the Board's April 21, 1980 meeting, the Missoulian formally requested to attend the performance evaluationofUM President Richard Bowers and to review the evaluation documents considered by the Board. TheMissoulian's request

was based on the contention that the meeting involved "the carryingout of thepublic's business inpublic education and therefore the public should be apprised." The request was denied on grounds that the demands of individual privacy clearly exceeded the merits of public disclosure. In its brief, the Missoulian states that it wished access to this information "simply because of its news value to its readership." Later, Missoulian changed its request to include access to allpresidential evaluations. An attempt at a compromise solution failed.At the Pilay 3, 1980 meeting, the Missoulian requested access to each evaluation session. That requestwas denied. The Missoulian's reporter,Mea Andrews, asked each president and the Commissioner if they would waive their privacy rights; each refused. The evaluations were conducted with only the Board,the Commissionerand the individual president present. Nohandwritten or recordedminutes were kept. After the meeting, a statementof goalsprepared by each president was released to reporters. Also released was a list

### of the categoriesof intervieweesand questionsasked in the interviews by the Commissioner. Chairman Ted James stated after the meeting that most of the annual review sessionscould have been open and someof theperiodic review sessionscould have been open. The Board notes that during consideration of the evaluation procedures prior to their adoption,a copy of the proposed procedures was circulated to the members of the press, including the Missoulian. No objection to the procedureswasmade by theMissoulian. Further,an editorial writtenby publisher Tom Brownhad appeared in theMissoulian supporting the evaluation procedure because it removed the evaluation from the political process and because every employee, whether he be "a typist at a local business or the president of the university, deserves a fair, honest and thorough evaluation ofperformance." Four of the Presidents, Erickson, Tietz, Thomas, and DeMoney, were evaluated under the less extensive annual review procedure. These evaluations were generally short, lasting from 15 to 45 minutes. Each President subjected to annual review submitted a list of objectives and goals, but these were not discussed at the meeting. Each of these presidents had an expectation that the process would be confidential.Presidents Bowers and Van de Wetering were evaluated under the three-year periodic review prccedures. Their evaluations lasted approximately an hour to an hour and a half. Each prepared and submitted in advance a written self-evaluation. Bowers' self-evaluation was an analysis of his performance as President and an evaluation of his administration, staff and faculty. Bowers prepared his self-evaluation with an expectation of confidentiality. He would have written the self-evaluation differently if it was to be a public document. Bower's self-evaluation contained statements and criticisms which if made public would have damaged his ability to function as UM president. These statements would not have been made if they were to be released to the public. If Bowers had deleted or modified these statements,he believes his self-evaluation would have been an incomplete statement and would not have been an accurate self-evaluation of his "total performance a.s president." Van de Wetering marked his self-evaluation "CONFIDENTIAL" and.prepared it believing it would be read onlyby the Commissionerand the Regents. Inhis preface,he stated he was attempting to "letitallhang out." He stated he would not have been so frank if it were meant to be made public. Van de Metering's self-eva.luationalso contained potentially damaging comments which would be made only in confidence. He believes he could not have survived as EMC president and that his governing a-bilityand his ability to work with various individuals would have been adversely affected had the self-evaluation been publicly released. The Commissionerpresented to the Board an oral summary of the comments gathered during his confidential campus and community interviews. These comments consisted of subjectiveevaluations of the presidents' strengths, weaknesses, and effectiveness in a number of subjectareas. Following this presentation by the Commissioner, the sessions consisted of discussions of various areas of performance or problem areas and discussion of rumors and accusations. During the meetings, no policy decisions or directives were made, nor were the merits of any particular policies debated. The record shows thatpolicy matters were involved in the evaluations only insofar as they related to the individual president's performance or the effects of a given policy on his administration, its image and ability to govern effectively. The discussions centered on personal relationships and personalities, subjective evaluation of various personnel or faculty and the presidents' management style, methodology and decision-making approach. Other areas of discussion included family, health,personal plans, relationships with Board members and faculty-administration relations. The discussion included potentially defamatory remarks regarding specific persons. Much of the material discussed was of such character that it would not be discussed in public. Chairman James and Commissioner Richardson felt the effectiveness of the evaluations depended upon their confidentiality. James indicated that if the evaluationshad to be conducted in public, theywould probably be abandoned. Richardson stated that the Boards' evaluations were of "immeasurable assistance" to him and the Board. He believes the procedure helps to head off potential problems before they damage a university or college. He would recommend abolishing the evaluation procedure if it was open to the public. Public disclosure would, in his opinion, inhibit candid evaluations by faculty and staff, discourage candidpresidential self-evaluations, and damage the presidents' ability to govern. All six presidents use confidential evaluations for their staffs. Each considers them an essential tool of effective management, without which governing ability would be adversely affected. One president went so far as to say that without such a toolhewould leave theprofession. Bowers entered the presidential performance evaluation process with an expectation of confidentiality. During his years of experience in higher education, Bowers had always been evaluated in private and had no reason to expect the Board's evaluationwould be anythingbut confidential. Bowers believes the discussion of his staff's performance was a necessary part of the evaluation of his performance and that such discussions must be held in private. Bowers also believes that a thorough performance evaluation must include a discussion of decision-making methodology, personal traits and a person's ability or inability to make decisions. These discussions could affect a person's ability to obtain future employment if held in public. President Van de Wetering believes a frank self-evaluation is necessary in order to determine if the president is aware of his own problems and whether the Board perceives them asproblems. The Board notes that the Missoulian and other private enterprises recognize the value of and use confidential personnel evaluations because they aid in improvement of performanceand allow employer and employee to openly express opinions,offer suggestionsand communicate. The Missoulian brought this action under the "right to know" provisions of the Montana Constitution and the Open Meeting Act against the Board and Commissioner Richardson,challenging the closure of the May 3, 1980 job performance evaluationmeeting. Shortly after the actionwas filed, the Boardmoved for summary judgment. Thematterwas extensively briefed and argued and the motion was denied by the District Court on November 10, 1980. Later, the Missoulian deposed the presidents, the Commissioner and the chairman. The Board deposed the Missoulian's publisher, Tom Brown, Managing Editor Rod Deckert and reporter Mea Andrews. After completion of discovery, both parties moved for summary judgment. In addition to the depositions, the record before the District Court consisted of two affidavitsby Ted James, one affidavit each by JohnRichardson, Rod Deckert and Mea Andrews and the Board's response to the Missoulian's Request for Production. On June 17, 1982, the District Court granted the Board's Motion for SummaryJudgment,sustaining closure of theMay 3, 1980meeting. The Missoulian appeals. The State Department of Administration has filed a brief as amicus curiae, because the decision in this case may have significant statewide impact on employee evaluation procedures, which the Department is responsible todevelop. I The first issue is whether job performance evaluations of university presidents, which elicit candid and subjective comments from Board members, anonymous interviewees,and the presidents themselves, are matters of individual privacy protected by the Montana Constitution orwhether theprivacy clause protects only matters of family or health not affecting jobperformance. TheMissoulian argues that university presidents have no privacy interest in performance evaluations. It contends thatpresidents canhave no reasonable expectationofprivacyexcept in the narrow areas of personal health and family which do not affect job performance. It argues that the presidents1job performance is a public matter which society is unwilling to recognize as private and that the interweaving of public business with the small amount of private matter discussed compels open evaluations. We disagree with the Missoulian's characterization of what was discussed and their contention that it isnotprivate. Article 11, section 10 of the Montana Constitution establishesa fundamental right ofprivacy: "Rightof Privacy. The right of individualprivacy is esseytial to the well-being of a free society and shallnotbe infringedwithout the showingof a compelling state interest." We discussed the adoption and scope of the privacy clause in Montana Human Rights Division v. City of Billings

(Mont. 1982), 649 P.2d 1283, 39 St.Rep. 1504. We noted that the Montana Constitution provides more privacy protection than the Federal Constitution. 649 P.2d at 1286, 39 St.Rep. at 1508. But the Constitutional Convention delegates appear to have left to the courts the task of defining the scope of the privacy right on a case-by-casebasis. Gorman,Rights

### &I Collision: The Individual Right Privacy and 

## -the 

### -Public Ri ht to Know, 39 Mont.L.Rev. 249, 266-67 (1978). The only 

### A-- apparent clue left by the delegates regarding privacy in personnelmatters is the statement of delegate Dorothy Eck of the Bill of Rights Committee that the Committee considered "deliberations regarding personnel" private. Mont. Const. Convention, Verbatim Transcript, Vol. V, pp. 1670-71 (March 7,1972). Her comment,however, isnot sufficiently specific to resolve this issue. This Court applies a two-part test to determine whether

a person has a constitutionallyprotected privacy interest: whether the person involved had a subjective or actual expectation of privacy and whether society is willing to 10recognize that expectation as reasonable. Montana Human Rights Division, 649 P.2d at 1287, 39 St.Rep. at 1509. We applied this test inMontana Human Rights Division and found

aprivacy interest inpersonnel records of city employees and applicants for employment. There, the Human Rights Commission (HRC) was investigating employees' complaints of discriminationby the City of ~illings.During the investigation,HRC attempted to gain access to personnel files, employee evaluations, disciplinary records, test scores and appli-cationmaterials for complainants and certain other employees and applicants. The City refused to allow access without consent of the individual employees whose files were sought,because to do

so might constitute an invasion of privacy. 649 P.2d at 1285, 39 St.Rep. at 1505. This Courtwas squarely facedwith the issue of whether that information was protected by the Montana Constitution and, if so, under what circumstances that right couldbe infringed. Applying the first part of the privacy test, we found that the city employees and applicants had an actual expectation of privacy. 649 P.2d at 1287, 39 St.Rep. at 1509.Here, the Board's written evaluation policy stated that the self-evaluations would be confidentialand the evaluation meetings would be conducted in "executive session." The anonymous interviewees who commented on the presidents' performancewere promised confidentiality. It isundisputed that the sixuniversitypresidents actually expected that the jobperformance evaluationswould be private. Bowers andVan de Wetering submitted their self-evaluations expecting confidentiality. The first part of the privacy test is clearly satisfied.The more difficult question is whether these actual expectations of privacy were reasonable. In Montana Human Rights Division,we stated that the "right of privacy turns

on the reasonableness of the expectation, which may vary, even regarding the same information and the same recipient of that information." 649 P.2d at 1288, 39 St.Rep. at 1509. The Missoulian is correct that time, place and status are factors in the reasonableness determination. But the determination should include consideration of all relevant 

### - circumsta.nces, including the nature of the information sought. In assessing the reasonableness of public employees' privacy expectations in personnel matters in Montana Human Rights Division,we stated: "Employment recordswould reasonably contain, among less sensitive information, references to family problems, health problems, past and present employers' criticism and observations, military records, scores from IQ tests and performance tests, prison records, drug or alcohol problems, and other matters, many 

### of which most individuals would not willingly disclose publicly. Some testing and disclosure (e.g., past employment records,prison records, drug or alcohol use) is a necessarypart ofmany applications foremployment; other information may be compiled by present employers or may be submitted by an employee in explanation of absence from work or poor performance on the job. It is clear that there is frequently pressure upon an employee to communicate these matters tohis employer in theprivacy ofhis boss's office or on an application for employment or promotion. And while, as far as we know, respondents gave their employees no specific assurances of confidentiality, we believe that employees would reasonably expect such communication normally would be kept confidential. Therefore,we find that under the circumstances of this case, the information requestedby the HRC is subject to the protection of MontanaIs constitutional right of privacy (§ 10)

# ." 649 P.2d at 1287-88, 39 St.Rep. at 1509. In fact, much of the discussion at the evaluation meetings involved matters within the categories listed in Montana Human Rights Division, as well as matters in other categories. The discussion included family and health problems, employer's criticisms, employees' criticismsof theemployer, interpersonal relationships, subjective vi-ewpoints of the performance of the presidents and various subordinates, the ability of the presidents to work with the faculty, and other matters of a similarly sensitive nature. The self-evaluations of Bowers and Van de Weteringwere also discussed. The Missoulian contends that much of the discussion concerned matters of public record or public policy inwhich the presidents can have no privacy interest. However,we do not agree with the Missoulian's reading of the record. The record shows that matters of public interest were discussed only peripherally, insofar as they impacted job performance

or interpersonal dynamics. The Board did not deliberate on policy matters. They inquired into only the effects of various policies upon the presidents' abilities to function. The Missoulian further argues that because innocuous information or matters of public knowledge were d-iscussed along with private matter, there was no privacy interest at stake. In Montana Human Rights Division,we recognized that the information soughtby HRC contained harmlessor generally known information, but that the informationwas nonetheless subject to constitutionalprotection: "While we are aware that much of the information contained in employment files and records is harmless or is already a matter of general knowledge, we are not persuaded that the records are entirely free of damaging informationwhich the individualsinvolved would notwish and in factdid not expect to be disclosed." 649 P.2d at 1287, 39 St.Rep. at 1509. Obviously,nearly all private matters contain some component of innocuous informationor general knowledge. However, that component does not transform private matter into public. The Missoulian contends that because public record information can be published without liability, Cox Broadcasting Corp. v. Cohn (19751, 420 U-S. 4691 the informationhere which contains some public knowledge is not 13protected by the privacy clause. But 

## - Cox Broadcasting holds only that where material is a part of the public record it may be published. Itdoes nothold that any informationmust be released to the media. 420 U.S. at 495. Certainly, the media,is free to obtain and publish within legal guidelines information from the public record. But the free press rights at stake in Cox Broadcasting are distinguishable from and should not be confused with the public's right to know. The status of university presidents, the Missoulian argues, so diminishes their privacy rights that job performance evaluations are not protected by the privacy clause. The Missoulian argues that Montana Human Rights Division isdistinguishablebecause university presidents are policy-making officials whose actions are of greater importance to the public than the employees inMontana Human Rights Division. We do notdoubt thatuniversity presidents' privacy interests may be less in some circumstances than other public employees. However, mere status does not control the determination. University presidents do not waive their constitutionalprotections by taking office. We do not agree that the presidentstprivacy interests are too weak toprotect the information at stakehere. The Missoulian has failed to show any significant distinction in this case between the job performance evaluations of university presidents and other public employees. Indeed, the sensitive nature of the presidential function suggests that there is all the more reason to expect confidentiality in presidential evaluations. A university president depends to a largedegree upon good relationsand a strong image within the university community for the successful accomplishment of his job. 

### A universitypresident has good reason to expect that his unabashed views, his candid evaluations of himself and his staff, and hisperceptions of the faculty will remain private. This information was obtained by the Board through candid and subjective responses by the presidents, anonymous interviewees, and Board members after assurances of confidentiality. Neither policy decisions nor directives

were discussed and they arenot addressed here. We emphasize that it is not only thepresidentswho had privacy interests at stake in these evaluation sessions. Numerous administrative staff, faculty members and other university employees were discussed. The matters discussed with regard to these employeeswas of a sensitive nature and would reasonably be expected to remain confidential. Wemust consider closure of the sessions in light of the privacy of these employeesaswell as thatof the presidents. In Trenton Times Corp. v. Board of Education (N.J.Super 1976)

## , 351 A.2d 30, the court found that personnel records and evaluations of a school superintendent were private matters not subjectto thepublic's right to know. The court stated: "Personnel records 

# . . include employees

### ' performance ratings. The policy to keep performance ratings confidentialhas been adopted: first, to protect the right of privacy of the government employee; second

## , because the evaluations are subjective opinions of the performance of the employee that vary with the person giving the rating; third,public disclosure would impede receiving candid evaluations; and fourth,a supervisorcould use thepublic nature of these ratings as a vindictive mechanism against employees he disliked. The lack of objective criteria, the potential for vindictiveness, the lack of an opportunity for the employee to rebut statements made in the rating, and a substantial potential for abuse leads to the conclusion that these ratings should be kept confidential." 351 A.2d at 33. The reasons behind a policy of confidential evaluation and the dangers of public disclosure recognizedby theNew Jersey courtare applicable here. We note that many organizations, including the Missoulian, recognize the reasonableness and benefit ofconfidentialpersonnel eval-uations. Indeed,theMissoulian's editorial supported the confidentiality of the evaluations. The record shows that confidential evaluations are used by other states. We conclude that the university presidents have a reasonable expectation of privacy in job performance evaluations. The Missoulian relies upon a number of cases for the proposition that no privacy interest attaches to job performance evaluations of university presidents. However, those casesdo not address the scope of the right ofprivacy. The cases generally address only the scope of the open meeting law in a particular state without any countervailing privacy right at stake. See Ridenour v. Board of Education

(Mich.App. 1981), 314 N.W.2d 760, 762-64; Polillov. Deane (N.J. 1977), 379A.2d 211, 218. We hold that the university presidents' job performance evaluations were matters of individual privacy protected by Article 11, section 10 of theMontana Constitution.

The second issue is whether the university presidents' privacy interests in job performance evaluations clearly exceed the pub1i.c'~constitutional and statutory right to know, particularly in light of the Board's contention that confidential evaluationsare in the public interest. The Missoulian argues that the right of privacy is generally subordinate to the public right to know. It contends this is the scheme intended by the Constitutional Convention delegates and the Legislature,whose purpose was toprevent themaking ofpublic decisions in secret meetings. The Missoulian argues that closure of the job performance evaluations was unjustified because the demands of privacy did not clearly exceed themerits ofpublic disclosure.Article 11, section 9 of the Montana Constitution provides: "Noperson 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." 

## - (emphasis added) The Open Meeting Act incorporates the same closure standard: 

### "(1) All meetings of public or governmental bodies, boards, bureaus, commissions, 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 shallbe open to thepublic. 

### "(2) Provided, however, the presiding officer of any meeting may close the meeting during the time the discussion relates to a matter of individual privacy and then if and only if the presiding officer determines that the demands of individual

rivacy clearly exceed the meritsof public $isclosure. Therightof imvidualprivacymay be waived by the individual aboutwhom the discussion pertains and, in that event, the meeting shall be open." Section 2-3-203, MCA (emphasis added)

# . The constitution appears to prescribe two different standards fordetermining whether aprivacy interest prevails

over a competing interest. InMontana HumanRights Division,

we recognized that a privacy interest will yield only to a compelling state interest. There,we found that a compelling state interest arose under the equal protection clause of the Montana Constitution. 649 P.2d at 1288, 39 St.Rep. at 1510. The Missoulian argues that here a compelling state interest arises simply because the right to know is of constitutional magnitude; the right to know being a compelling state interest,privacymust yield. Under theMissoulian's theory, it appears the right to know would always prevail over individualprivacy. However, the right to know is not absolute. The more specific closure standard of the constitutionaland statutory provisions requires this Court to balance the competing constitutional interests in the context of the facts of each case, to determine whether the demands of individualprivacyclearly exceed the merits of public disclosure. Under this standard, the right to know may outweigh the right of individual privacy, depending on the facts. Before balancing these interests, however, it must be determined more precisely what interests are at stake. This determination includes considerationofvarious facetsof the public interest and isrequiredby the language of the right to know provision, which calls for a balancing of the "demands of individual privacy" and the "merits of disclosure." The Missoulian would limit the inquiry to a contest between competing constitutional interests in the abstract, without consideration of aspects of thepublic interest other than the general "riqht to know." But a broader inquiry is required. by the constitutiona.1and statutory provisions and has been employedby this Court inprevious cases. We reject the restrictive approach suggestedby theMissoulian. In Montana Human Rights Division, we considered the policies behind the investigatory powers of the HRC, including the right to be free from discrimination, the need for accurate and effective resolution of complaints and the adverse consequences of denying the HRC access to information. We also considered the inconvenience or impracticality of alternative methods of obtaining the information and the "practical realities of the situation." 649 P.2d at 1289, 39 St.Rep. at 1511. In Mountain States Telephone and Telegraph Co. v. Dept. of Public Service Regulation (Mont. 1981), 634 P.2d 181, 38 St-Rep.at 1479,we addressed the issue ofwhether and under what conditions corporate trade secrets protected by the privacy clause must be publicly disclosed under the constitutionalright to know. Mountain Stateshad offered to disclose the information to the Public Service Commission(PSC)under protective order,but the PSC refused to issue a protective order. We rejected the argument that because the information was necessary to the PSC1s rate-making determination,public disclosure was required. 634 P.2d at 187, 38 St.Rep. at 1485-86. We considered the policies behind the informationgatheringpowers of the PSC and: 

# ".

. . balanced the rights that all citizens acquired under the right to know provision of the state constitution with the purpose and function for which our laws compel disclosure

# ..

# .. The right to knowprovisionwas designed toprevent the elevation of a state czar or oligarchy; itwas not designed for, nor will be substitute, the tyranny of a proletariat

# . .

# .. Any other citizen

# ..

# . may also have access to the trade secret,provided his or her interest relates to the ratemaking function of the PSC." 634 P.2d at 189, 38 St.Rep. at 1488. Montana Human Rights Division and Mountain States indicate that it is appropriate and necessary tobalance the competing rights in the contextof the purposes, functionsand needs of the governmental entity involved and the purposes and merits of the asserted public right to know. The substantial value of confidential evaluations is apparent. The Board, the Commissionerand the presidents all rely on confidential evaluations to effectively improve job performance. These evaluations allow the Board and the president to gain an accurate view of the effectiveness of the administration, its strengths and weaknesses. The Commissioner stated that these sessionswere of "immeasurable assistance" to him and the Board in managing the university system. Theprocedure helps to "head off"potential problems before they damage a university unit. It allows the Board members and presidents to test their perceptions a.gainst those of people from 

### a cross-section of the university and community. The overall effectiveness and quality of the system isenhanced and these results accrue to the benefit of thepublic.The participants uniformly believe that open evaluation sessions would be detrimental. The Chairman and the Commissioner stated that theeffectiveness of the sessions in job performance improvement and other benefits depended in large part upon confidentiality. The Commissioner stated that public disclosure would inhibit candid evaluations from faculty, staff,and other interviewees, discourage presidents from making candid self-evaluations, and would damage the presidents' ability to govern. The DistrictCourt found that frank, honest and critical evaluations would not occur without confidentiality. The state's ability to attract top presidential candidates or retain its current presidents would suffer. Both the Chairman and the Commissioner indicated that the sessionsprobably would notbe held unless they were confidential. All of the presidents use confidential evaluations for their staffand believe they are an essential tool for effectivemanagement. The privacy interests of the presidents would suffer greatly from disclosure. Also, theprivacy of faculty, staff and other interviewees whose names or commentswere discussed would be violated or jeopardized. To allowpublic disclosure of the confidential comments of the anonymous interviewees arguably contravenesthe legislativepolicy of protecting the confidentiality of communications made to public officials where the public interest would suffer by the disclosure. Section 26-1-810, MCA. The disadvantages of public disclosureare substantial. The Missoulian argues that public disclosure would further the public interest in several ways, including fostering public confidence in public institutions, maintaining the accountability of public officials,assuring public access to information to allow evaluation of public expenditures,andpreventing the secret conductof governmentand usurping of the people's sovereignty. However, the Missoulian has failed to show how any of these public interestswould be furtheredby public disclosure or hindered by confidentialityin this case. TheMissoulianhas shownno relation between the information involved here and the objectives of the right to know provision. The discussions concerned personal relationships and personalities, subjective evaluation of various staff and faculty, and the presidents' management style, methodology and personality. This information may make interesting or sensational news copy, but we conclude that public disclosure is not in the public interest. The Missoulian argues thatwhen the Legislature deleted the personnel exception to theOpenMeetingAct, it indicated

an intent to open personnel evaluations to the public. However as the Board notes, the specific exceptions were apparently deleted in favor of a broad and flexible general exception. This was deemed necessary because it did not appear that the specific exceptions were broad enough to encompass all situations where the right of privacy might exceed the merits of public disclosure. See Official Minutes, House State Administration Committee, January 27, 1977. The Missoulian's suggestion that the Legislature intended personnel evaluations to be open to the public is unconvincing. We hold that the demands of individual privacy of the university presidents and other university personnel in confidential jobperformance evaluation sessionsof the Board of Regents clearly exceed the merits of public disclosure. We affirm the District Court's findings that these confidential job performance evaluations are in the public interest and that the demands of individual privacy clearly exceed themerits ofpublic disclosure.The final issue is whether closure of job performance evaluation meetings is necessary to protect the presidents' privacy interests or whether alternative methods exist for protecting individual privacy in evaluationmeetings. The Missoulian contends that closure of the evaluation meetings was not necessary to protect any private matters that actually were discussed at themeeting. TheMissoulian argues that routine parliamentary methods are available for segregating private from non-private matters in the evaluation sessions. These include protecting the identity of those discussed, "agenda scheduling" (scheduling the discussion of specific private matters and closing the session for only that discussion), and objections and side bar conferences (as used in objecting to inadmissible evidence in trials)

# . The Missoulian argues these alternativesarepractical and sufficienttoprotectprivacy. The Board argues that these alternatives are impractical and inadequatetoprotectprivacy; partial closure would fail to accomplish its purpose and would prevent the evaluations from being effective. In Montana Human Rights Division, the City of Billings argued that the information soughtby HRC could be altered in such away as to protect the identitiesof the employees and thus make the intrusion less objectionable. We noted that this would limit the accuracy and completeness of the information sought. 649 P.2d at 1289, 39 St.Rep. at 1512. Here,onepurpose of the confidential evaluation procedure is to encourage full uncensored comment by all involved. To alter the information in an attempt to protect identities would frustrate this purpose. Moreover, this alternative would do nothing to protect the principal privacy interests at stake

## -- those of thepresidents. InMontana Human RightsDivision, this Court found that an HRC regulation which allowed public disclosure of "data or abstractsderived from such information in a form which doesnot reveal the identity of the charging party, respondent, or person supplying the information"was inadequate to protect the right of privacy. 649 P.2d at 1290, 39 St.Rep. at 1512-13. We prohibited release of information which "sugqests the identity of employees

# ..

# .." 649 P.2d at 1291, 39 St.Rep. at 1514

(emphasisadded). The identity of the presidents and other employees who were discussedwasmore than "suggested"by the discussion thatoccurred at the evaluation sessions. Agenda scheduling also presents significant problems. The Missoulian's explanation of thismethod demonstrates its impracticality. The Missoulian suggests that "if in the course of an evaluation a participant feels he is intruding on matters of indivi-dualprivacy, he is to statehis concern to the presiding officerwho willmake a decision onwhether the meeting should be closed for that discussion." Presumably a sidebar conference would thenbe had to resolve the matter. This procedure would transform the evaluation into a procedural exercise rather than an informaldiscussion of the employee's performance. The open and informal character of the evaluations, which is directly related to their effectiveness, would be lost. This type of procedure is arguably suggested by the language of the Open Meeting Act, which states that "the presiding officerof any meeting may close themeeting during the time the discussion relates to a matter of individual privacy

# .

# ..." Section 2-3-203(2), MCA. However, most if not all of the discussion at the May 3, 1980meeting related to matters of individual privacy. There was so much interweaving of sensitive material that it would have been impossible by use of agenda scheduling to separate privatematter from non-private, to protect privacy, or to avoid destroying the effectivenessof the evaluations. The agenda. scheduling procedure suggested by the Missoulian is rathervague. The Missoulian hasnot shownhow Board members would know in advance that aprivatematterwas about to be raised nor how the Board could avoid the suggestion of private matter in calling for a side bar conference. While being questioned about this procedure in d.eposition,Missoulian publisher Tom Brown indicated that this procedure would "take a little risk with that kind of thing." We believe such a procedure would fail to protect privacy or would sanitize the evaluations beyond effectiveness. As the Board argues, agenda scheduling is feasible only if we adopt the narrow view of privacy urged by the Missoulian. Such a procedure artifically compartmentalizes the discussion. Use of trial procedures would raise the sessions to the level of adversarial proceedings and destroy the public benefits of informal and candid evaluations. A careful review of the depositions and other documents in the record demonstrates the complete impracticality of partial closure. The flow of the discussion and interchange of questions at the meetings continuously raised matters of privacy inappropriate for public discussion. In short, closure appears the only practical and effective method of conducting jobperformance evaluations. We hold on these facts that closure of the job performance evaluations was necessary to protect the individual privacy of the university presidents and other university personnel. Neither the constitutional nor statutory right to know provision was violated. We affirm the judgment of theDistrictCWe concur:

Chief Justice' 

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