No. 89-153 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

IN RE THE APPLICATION FOR 

PRODUCTION OF POLICE RECORDS 

RE: MICHAEL LACY. 

ALLSTATE INSURANCE CO., 

"-, CITY OF ~JLLINGS, c -b 

r: 

Respondent. -. 

APPEAL FR~M: District Court of the Thirteenth Judicial District, .- 7 In and for the County of Yellowstone, I "Ihe Honorable Robert Holmstrom, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Janice L. Rehberg; Crowley, Haughey, Hanson, Toole and 

Dietrich, Billings, Montana 

For Respondent: 

Paul Luwe, City Attorney's Office, Billings, Montana 

Filed: 

Submitted on Briefs: Aug. 10, 1989 

Decided: September 27, 1989 
Justice R. C. McDonough delivered the Opinion of the Court. 

This is an appeal from an order denying appellant, 

Allstate Insurance Company's (Allstate) application for an 

order directing the Billings Police Department (Department) 

to release to Allstate copies of its records relating to 

Michael Lacy, Allstate's insured. We reverse and remand. 

The sole issue in this case is: 

Whether the District Court erred in denying Allstate ' s 

application for the production of police records pertaining 

to the Billings Police Department's investigation into the 

death of Allstate's insured, Michael Lacy, for use during the 

insurance company investigation of policy coverage. 

On January 11, 1988, Michael Lacy (Lacy) submitted an 

application to Allstate for a $130,000 life insurance policy. 

In the application, Lacy responded negatively to questions 

concerning prior use of illegal drugs, treatment for Acquired 

Immune Deficiency Syndrome (AIDS) and the presence of any 

mental or physical disorders. Based upon these 

representations, a policy was issued covering the life of 

Lacy. The policy was to be owned by and payable to Donn 

Cornelia. 

Lacy died on September 5, 1988, at the War Bonnet Inn in 

Billings, Montana. The police were called to investigate his 

death. Upon arriving at the scene, the police found used 

syringes, quantities of white powder and other substances 

believed to be illegal drugs. The coroner's report revealed 

that Lacy was a frequent drug user, that there was evidence 

of "recent and old" intravenous drug use, and that Lacy 

tested positive for HIV (the AIDS vir,us). The report 

determined that Lacy died of an intravenous drug overdose. 

Because there was inconclusive evidence to support a 

finding of suicide, the coroner termed Lacy's death 
accidental. Allstate believes, however, that further 

investigation may reveal that the death was, in fact, 

suicidal. Acting upon this belief and the circumstances 

surrounding the death, Allstate made a request to the 

Billings Police Department, to allow it access to files 

prepared during investigation of the incident. Allstate 

believes that the records may assist it in determining 

whether Lacy made misrepresentations in his application which 

would preclude the beneficiary from recovering any of the 

proceeds. 

In order to comply with the Department's interpretation 

of the Montana Criminal Justice Information Act, Allstate 

filed an application with the District Court seeking 

production of police records concerning the death of Michael 

Lacy. The Department objected to the general release of its 

records and requested the court to conduct an in camera 

review in order to decide which evidence should properly be 

released to Allstate. The Department also sought a 

protective order to limit further dissemination of any 

information released to Allstate. Allstate did not object to 

any of these conditions, and in fact drafted a proposed 

protective order. 

The District Court, however, denied Allstate's 

application. It held that Allstate was not authorized by law 

to receive the documents and was not, therefore, entitled to 

their production under the Criminal Justice Information Act. 

Allstate appealed the lower court's ruling. 

In any free society there is tension between competing 

rights allocated among the citizens. This tension is 

apparent when the right of personal privacy collides with 

society's right to know relative to governmental operation. 

Because these two rights have been constitutionalized, this 

dilemma has been intensified in Montana. 
The 1972 Montana Constitution elevated the right to 

privacy and the right to know to constitutional status. The 

right to privacy is found at Article 11, Section 10, which 

provides : 

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 right to know is found at Article 11, Section 9, 

which states: 

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. 

As the language of the right to know provision 

indicates, the tension between these two guarantees is 

aggravated by the fact that they are textually 

interdependent. In general, all citizens have an absolute 

right to observe and examine the operation of agencies within 

government. Curtailment of this right is only justified "in 

cases in which the demand of individual privacy clearly 

exceeds the merits of public disclosure." 

An easy solution which would provide concrete and 

uniform guidance in the balancing of these two guarantees has 

evaded both the courts and the legislature. The legislature 

has attempted to more clearly define and set the boundaries 

of the two rights. Of interest to this case is the Criminal 

Justice Information Act, which governs the dissemination of 

confidential criminal justice information. See, § 44-5-101, 

MCA, et seq. 
Section 44-5-103(3), MCA, defines confidential criminal 

information as: 

a) criminal investigative information 

b) criminal intelligence information 

c) fingerprints and photographs 

d) criminal justice information or records made 

confidential by law, and 

e) any other criminal justice information not 

clearly defined as public criminal justice 

information. 

One of the purposes of the act is to "establish 

effective protection of individual privacy in confidential 

and nonconfidential criminal justice information collection, 

storage and dissemination." Section 44-5-102, MCA. 

Obviously in certain situations investigatory material must 

be shielded from public review. Victims of sex crimes, for 

example, may have a legitimate expectation of privacy. On 

the other hand, suspects may have such an expectation in 

certain circumstances because criminal investigations 

occasionally result in the designation of the innocent as 

suspects, particularly in the early stages of investigation. 

See 42 Op.Attly Gen. No. 119 at 7 (1988). 

The legislature, therefore, in balancing the right of 

society to know of the existence and treatment of crime and 

the individ.ua1 ' s right to privacy, provided guidelines which 

dictate when this information would be subject to 

dissemination. Section 44-5-303, MCA, provides that 

"dissemination of confidential criminal justice information 

is restricted to criminal justice agencies or to those 

authorized -- by law to receive it." (~mphasis added.) 

The trial court interpreted this statute to mean that in 

order to be "authorized by law," one must be specifically 

authorized by statute to receive criminal justice 

information. Because Allstate could not point to any statute 
which authorized insurance companies to receive criminal 

justice records, it was precluded from obtaining them. This 

interpretation does not take into consideration basic tenants 

of our constitutional system of qovernment and statutory 

construction. The office of ultimately interpreting the 

Constitution lies exclusively in the judiciary. State v. 

Toomey (1959), 135 Mont. 35, 44, 335 P.2d at 1051, 1056. 

The trial court's opinion requiring statutory 

authorization for release of confidential criminal justice 

information effectively delegates to the legislature the 

authority to place binding construction upon the State 

Constitution. However, its provisions control the 

legislature, not vice versa. While the legislature is free 

to pass laws implementing constitutional provisions, its 

interpretations and restrictions will not be elevated over 

the protections found within the Constitution. 

As we stated earlier the dissemination of confidential 

criminal justice information is restricted to criminal 

justice agencies or to those authorized by - law to receive it. 

Section 44-5-303, MCA, (~mphasis added.) The trial court 

held that in order to be "authorized by law," one must be 

specifically authorized by statute. We find that this 

reading of § 44-5-303, MCA, is too narrow. 

Words utilized in a statute are to be given their 

natural, plain, ordinary and commonly understood meaning. 

State v. Perez (1952), 126 Mont. 15, 22, 243 P.2d 309, 312. 

Under its commonly understood meaning the word "law" includes 

constitutional as well as statutory law. See §§ 1-1-101 and 

-102, MCA, State ex rel. Burns v. Lachlen (1955), 129 Mont. 

243, 284 P.2d 998. Accordingly, one is "authorized by law" 

to receive criminal justice information by the Right to Know 

provision of the Constitution. The only limitation on the 
right to receive this information is the constitutional right 

to privacy. 

This conclusion is further bolstered by our finding that 

the "Right to Know" as contained in Article 11, Section 9 of 

the Montana Constitution, is a self executing provision. A 

provision of a constitution is self executing when 

legislation is not required to give it effect. State ex rel. 

Stafford v. Fox-Great Falls Theater Corp. (1942), 114 Mont. 

52, 74, 132 P.2d 689, 700. The clear language contained 

within Article 11, Section 9, indicates that there was no 

intent on the part of the drafters to require any legislative 

action in order to effectuate its terms. 

The legislature does not have the power to provide 

through the passage of statute who can exercise this right 

unless it finds that such curtailment is necessary to protect 

the right of individual privacy. Accordingly, any 

interpretation of S 44-5-303, MCA, which requires specific 

legislative authorization to review criminal justice 

information would render the statute unconstitutional. In 

determining the meaning of a statute, this Court will 

construe its terms in a manner which will preserve its 

constitutionality. Parker v. Yellowstone County (1962), 140 

Mont. 538, 543, 374 P.2d 328, 330. 

Because the judiciary has authority over the 

interpretation of the Constitution, it is the courts' duty to 

balance the competing rights at issue in order to determine 

what, if any information, should be given to a party 

requesting information from the government. In view of the 

policies behind the Criminal Justice Information Act, it is 

incumbent upon a party to make a proper showing in order to 

be eligible to receive such specific confidential 

information. It appears Allstate has met this initial 

burden. Therefore, on remand the District Court shall 
conduct an in camera inspection of the documents at issue in 

order to determine what material could properly be released 

to Allstate. In making this examination, the court shall 

take into account and shall balance the competing interests 

of those involved. 

Allstate should be accorded the widest breadth of 

information possible. However, its request should be 

reviewed with deference towards the privacy rights of those 

named in the police records. Any release of information, of 

co.urse, can be conditioned upon limits contained within a 

protective order. This case is remanded and the trial court 

is instructed to conduct proceedings consistent with this 

opinion. 

We Concur: 4