No. 89-153

INTHE SUPREME COURTOF THE STATE OF MONTANA
1989

INRE THEAPPLICATIONFOR PRODUCTIONOF POLICERECORDS RE: MICHAEL LACY.
ALLSTATE INSURANCECO., 

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CITY OF ~JLLINGS, c -b r: Respondent.

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APPEAL FR~M:DistrictCourt of the Thirteenth Judicial District,

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### Inand for the County ofYellowstone,

I "IheHonorableRobert Holmstrom, Judgepresiding.
COUNSELOF RECORD:

ForAppellant: JaniceL. Rehberg; Crowley,Haughey, Hanson,Toole and Dietrich,Billings,Montana

For Respondent:
PaulLuwe,CityAttorney's Office,Billings, Montana

Filed: Submitted on Briefs: Aug. 10,1989 Decided: September 27, 1989Justice 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, MichaelLacy, foruseduring the insurancecompany investigationofpolicy coverage. On January 11, 1988, Michael Lacy (Lacy) submitted an applicationtoAllstate fora $130,000 life insurancepolicy. In the application, Lacy responded negatively to questions concerningprior use of illegaldrugs,treatment forAcquired 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. Lacydied on September 5,1988,at theWar Bonnet Inn in Billings,Montana. Thepolicewere 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 illegaldrugs. The coroner's report revealed that Lacy was a frequentdrug 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 deathaccidental. 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 whetherLacy made misrepresentations inhis 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 ofMichael Lacy. The Departmentobjected 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 informationreleased toAllstate. 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. Itheld thatAllstate was not authorized by law to receive the documents and was not, therefore,entitled to their production under the Criminal Justice InformationAct. 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 inMontana.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:
Therightof individual privacy is essential to the well being of a free society and shall not be infringed without the showingof a compelling state interest. The right to know is found at Article 11, Section 9, which states:

No person shallbe 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 ofpublic 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 observeand 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 ofpublic disclosure." An easy solution which would provide concrete and uniform guidance in thebalancing of these two guaranteeshas 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 InformationAct, 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 informationas:
a) criminal investigative information b) criminal intelligence information c) fingerprintsand photographs d) criminal justice information or records made confidentialby 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 42Op.AttlyGen. 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 guidelineswhich 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 statutetomean that in order to be "authorized by law," one must be specifically authorized by statute to receive criminal justice information. BecauseAllstate could notpoint to any statutewhich authorized insurance companies to receive criminal justice records, it was precluded from obtaining them. This interpretation does not take into considerationbasic 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 theprotections foundwithin the Constitution. As we stated earlier the dissemination of confidential criminal justice information is restricted to criminal justice agencies or to those authorizedby 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 toonarrow. 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 commonlyunderstood meaning theword "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 informationby the Right to Know provision of the Constitution. The only limitation on theright to receive this informationis the constitutional right toprivacy. This conclusion is further bolstered by our finding that the "Rightto Know" as contained inArticle 11,Section 9 of the Montana Constitution, is a self executing provision. A provision of a constitution is self executing when legislation isnotrequired togive iteffect. 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 intenton thepart of the drafters to requireany 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. Inview of the policies behind the Criminal Justice InformationAct, 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 shallconduct 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: 

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