No. 82-269 

IN THE SUPREME COURT OF THE STATE OF MONTAPJA 

1984 

THE MISSOULIAN, a division of 

Lee Enterprises, Inc., 

Plaintiff and Appellant, 

BOARD OF REGENTS OF HIGHER EDUCATION 

and JOHN RICHARDSON, COMMISSIONER OF 

HIGHER EDUCATION, 

Defendants and Respondents. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable John 14. McCarvel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Miloragovich, Dale & Dye; Harold V. Dye argued, 

Missoula, Montana 

For Respondents: 

G. Steven Brown argued, Helena, Montana 

LeRoy Schramm, Montana University System, Helena, 

Montana 

For Amicus Curiae: 

Jayne Mitchell for Dept. of Administration, 

Helena, Montana 

-- 

Submitted: October 31, 1983 

Decided: January 23, 1984 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the 

Court. 

Plaintiff Missoulian appeals from summary judgment 

granted by the First Judicial District 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 job performance 

evaluation meeting concerning presidents of the six 

university system units. The District Court granted summary 

judgment, upholding the legality of the meeting closure. The 

Missoulian appeals and the State Department of Administration 

appears as amicus curiae. We affirm the judgment of the 

District Court. 

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 the public interest? 

3. Whether closure of job performance evaluation 

meetings is necessary to protect the presidentst privacy 

interests or whether alternative methods exist for protecting 

individual privacy 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 the 
presidents. The Performance Evaluation Policy provided for 

two levels of evaluation, an annual review and a more 

thorough periodic evaluation, which was to occur every three 

years. Annual review involved a president preparing a 

statement of goals and objectives for his institution and 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 decision making, personnel management and 

appointments and external relations. The Commissioner was to 

interview persons representative of faculty, staff, students, 

administration, alumni, community leaders and elected 

officials on various aspects of the president's performance. 

The Board would then discuss in confidence with 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 the May 3, 1980 meeting, the Commissioner, John 

Richardson (Richardson) conducted 74 interviews concerning 

the job performance of Presidents Bowers and Van de Wetering. 

The Commissioner gave each interviewee an assurance of 

confidentiality at the beginning of the interview and in the 

letter requesting the interview. The interviews covered the 
issues 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 strengths and 

weaknesses. Using the topic areas of his interview sheet as 

an outline, Richardson then prepared a summary of the results 

of the interviews broken down by category of interviewee. In 

presenting his summary at the May 3 meeting, Richardson took 

care that particular interviewees could not be identified 

from his remarks. 

The Board'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.luations will be conducted in "executive session." 

At the Board's April 21, 1980 meeting, the Missoulian 

formally requested to attend the performance evaluation of UM 

President Richard Bowers and to review the evaluation 

documents considered by the Board. The Missoulian's request 

was based on the contention that the meeting involved "the 

carrying out of the public's business in public 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 all presidential evaluations. An attempt 

at a compromise solution failed. 
At the Pilay 3, 1980 meeting, the Missoulian requested 

access to each evaluation session. That request was 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 Commissioner and the individual president 

present. No handwritten or recorded minutes were kept. 

After the meeting, a statement of goals prepared by each 

president was released to reporters. Also released was a 

list of the categories of interviewees and questions asked in 

the interviews by the Commissioner. Chairman Ted James 

stated after the meeting that most of the annual review 

sessions could have been open and some of the periodic review 

sessions could 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 

procedures was made by the Missoulian. Further, an editorial 

written by publisher Tom Brown had appeared in the Missoulian 

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 of performance." 

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 

only by the Commissioner and the Regents. In his preface, he 

stated he was attempting to "let it all hang out." He stated 

he would not have been so frank if it were meant to be made 

public. Van de Metering's self-eva.luation also 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-bility and his ability to 

work with various individuals would have been adversely 

affected had the self-evaluation been publicly released. 

The Commissioner presented to the Board an oral summary 

of the comments gathered during his confidential campus and 

community interviews. These comments consisted of subjective 
evaluations of the presidents' strengths, weaknesses, and 

effectiveness in a number of subject areas. 

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 that policy 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 evaluations had 

to be conducted in public, they would 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 candid 
presidential 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 tool he would leave the profession. 

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 evaluation would be anything but 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 as problems. 

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 

performance and allow employer and employee to openly express 

opinions, offer suggestions and 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 

evaluation meeting. Shortly after the action was filed, the 

Board moved for summary judgment. The matter was 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 affidavits by Ted James, one affidavit 

each by John Richardson, 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 Summary Judgment, sustaining closure of the May 3, 

1980 meeting. 

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 to develop. 

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 or whether the privacy 

clause protects only matters of family or health not 

affecting job performance. 

The Missoulian argues that university presidents have no 

privacy interest in performance evaluations. It contends 

that presidents can have no reasonable expectation of privacy 
except in the narrow areas of personal health and family 

which do not affect job performance. It argues that the 

presidents1 job 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 is not private. 

Article 11, section 10 of the Montana Constitution 

establishes a fundamental right of privacy: 

"Right of Privacy. The right of individual privacy 

is esseytial to the well-being of a free society 

and shall not be infringed without the showing of 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-case basis. Gorman, Rights &I 

Collision: The Individual Right Privacy - and - the Public 

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

apparent clue left by the delegates regarding privacy in 

personnel matters 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, is not sufficiently specific 

to resolve this issue. 

This Court applies a two-part test to determine whether 

a person has a constitutionally protected privacy interest: 

whether the person involved had a subjective or actual 

expectation of privacy and whether society is willing to 

10 
recognize that expectation as reasonable. Montana Human 

Rights Division, 649 P.2d at 1287, 39 St.Rep. at 1509. We 

applied this test in Montana Human Rights Division and found 

a privacy interest in personnel records of city employees and 

applicants for employment. 

There, the Human Rights Commission (HRC) was 

investigating employees' complaints of discrimination by the 

City of ~illings. During the investigation, HRC attempted to 

gain access to personnel files, employee evaluations, 

disciplinary records, test scores and appli-cation materials 

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 Court was squarely faced with 

the issue of whether that information was protected by the 

Montana Constitution and, if so, under what circumstances 

that right could be 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 confidential and the evaluation 

meetings would be conducted in "executive session." The 

anonymous interviewees who commented on the presidents' 

performance were promised confidentiality. It is undisputed 

that the six university presidents actually expected that the 

job performance evaluations would be private. Bowers and Van 

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 records would 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 

necessary part of many applications for employment; 

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 to his employer in the privacy of his 

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 requested by the HRC is 

subject to the protection of Montana Is 

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' criticisms of the 
employer, 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 Wetering were also 

discussed. 

The Missoulian contends that much of the discussion 

concerned matters of public record or public policy in which 

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 sought by HRC contained harmless or generally 

known information, but that the information was nonetheless 

subject to constitutional protection: 

"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 information which the 

individuals involved would not wish and in fact did 

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 information or 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 

information here which contains some public knowledge is not 

13 
protected by the privacy clause. But - Cox Broadcasting holds 

only that where material is a part of the public record it 

may be published. It does not hold that any information must 

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 is distinguishable because university presidents are 

policy-making officials whose actions are of greater 

importance to the public than the employees in Montana Human 

Rights Division. We do not doubt that university 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 constitutional protections by taking office. We 

do not agree that the presidentst privacy interests are too 

weak to protect the information at stake here. 

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 large degree upon good relations and a 

strong image within the university community for the 

successful accomplishment of his job. A university president 

has good reason to expect that his unabashed views, his 

candid evaluations of himself and his staff, and his 
perceptions 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 are not addressed here. 

We emphasize that it is not only the presidents who 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 employees was of a sensitive nature and 

would reasonably be expected to remain confidential. We must 

consider closure of the sessions in light of the privacy of 

these employees as well as that of 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 subject to the public's right to know. The court 

stated: 

"Personnel records . . include employees ' 

performance ratings. The policy to keep 

performance ratings confidential has 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 supervisor could use the public 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 recognized by the New Jersey 

court are applicable here. 

We note that many organizations, including the 

Missoulian, recognize the reasonableness and benefit of 
confidential personnel eval-uations. Indeed, the Missoulian'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 cases do not address the scope of the right of privacy. 

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; Polillo v. Deane 

(N.J. 1977), 379 A.2d 211, 218. 

We hold that the university presidents' job performance 

evaluations were matters of individual privacy protected by 

Article 11, section 10 of the Montana 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 evaluations are 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 

to prevent the making of public 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 the merits of public disclosure. 
Article 11, section 9 of the Montana Constitution 

provides : 

"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." (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 shall be open to the public. 

" (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 merits of public 

$isclosure. The right of imvidual privacy may be 

waived by the individual about whom 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 for determining whether a privacy interest prevails 

over a competing interest. In Montana Human Rights 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, privacy must yield. Under the Missoulian's theory, 

it appears the right to know would always prevail over 

individual privacy. 

However, the right to know is not absolute. The more 

specific closure standard of the constitutional and 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 individual privacy 
clearly 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 consideration of various facets of the 

public interest and is required by 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 the public interest other 

than the general "riqht to know." But a broader inquiry is 

required. by the constitutiona.1 and statutory provisions and 

has been employed by this Court in previous cases. We reject 

the restrictive approach suggested by the Missoulian. 

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 of whether and under 

what conditions corporate trade secrets protected by the 

privacy clause must be publicly disclosed under the 

constitutional right to know. Mountain States had 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 informationgathering powers 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 know provision was designed to prevent the 

elevation of a state czar or oligarchy; it was 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 to balance the competing 

rights in the context of the purposes, functions and 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 Commissioner and 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 sessions were of "immeasurable 

assistance" to him and the Board in managing the university 

system. The procedure 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 is enhanced and these results accrue to the benefit of 

the public. 
The participants uniformly believe that open evaluation 

sessions would be detrimental. The Chairman and the 

Commissioner stated that the effectiveness 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 District Court 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 sessions probably would not be held unless 

they were confidential. All of the presidents use 

confidential evaluations for their staff and believe they are 

an essential tool for effective management. 

The privacy interests of the presidents would suffer 

greatly from disclosure. Also, the privacy of faculty, staff 

and other interviewees whose names or comments were discussed 

would be violated or jeopardized. To allow public disclosure 

of the confidential comments of the anonymous interviewees 

arguably contravenes the legislative policy 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 

disclosure are 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, and preventing the secret conduct of government 
and usurping of the people's sovereignty. However, the 

Missoulian has failed to show how any of these public 

interests would be furthered by public disclosure or hindered 

by confidentiality in this case. The Missoulian has shown no 

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 that when the Legislature deleted 

the personnel exception to the Open Meeting Act, 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 job performance evaluation sessions of 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 the merits of public 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 evaluation meetings. 

The Missoulian contends that closure of the evaluation 

meetings was not necessary to protect any private matters 

that actually were discussed at the meeting. The Missoulian 

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 

alternatives are practical and sufficient to protect privacy. 

The Board argues that these alternatives are impractical and 

inadequate to protect privacy; 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 sought by HRC could be altered in 

such a way as to protect the identities of 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, one purpose 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 the presidents. In Montana Human Rights 
Division, this Court found that an HRC regulation which 

allowed public disclosure of "data or abstracts derived from 

such information in a form which does not 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 

(emphasis added). The identity of the presidents and other 

employees who were discussed was more than "suggested" by the 

discussion that occurred at the evaluation sessions. 

Agenda scheduling also presents significant problems. 

The Missoulian's explanation of this method demonstrates its 

impracticality. The Missoulian suggests that "if in the 

course of an evaluation a participant feels he is intruding 

on matters of indivi-dual privacy, he is to state his concern 

to the presiding officer who will make a decision on whether 

the meeting should be closed for that discussion." 

Presumably a side bar conference would then be had to resolve 

the matter. This procedure would transform the evaluation 

into a procedural exercise rather than an informal discussion 

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 officer of any meeting may close the meeting 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, 1980 meeting 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 private 
matter from non-private, to protect privacy, or to avoid 

destroying the effectiveness of the evaluations. 

The agenda. scheduling procedure suggested by the 

Missoulian is rather vague. The Missoulian has not shown how 

Board members would know in advance that a private matter was 

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 job performance 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 the District C 
We concur: 

Chief Justice' - L