NO. 93-127

IN THE SUPREME COURT OF THE STATE OF MONTANA

1993

BOZEMAN DAILY CHRONICLE,

Plaintiff, Respondent, and

Cross-Appellant,

-vsCITY OF BOZEMAN POLICE DEPARTMENT,

Defendant, Appellant, and

Cross-Respondent,

and

GALLATIN COUNTY SHERIFF‘S DEPARTMENT,

Defendant and Respondent.

APPEAL FROM: District Court of the Eighteenth Judicial District,

In and for the County of Gallatin,

The Honorable Thomas C. Honzel, Judge presiding.

COUNSEL OF RECORD:

For Plaintiff/Cross-Appellant:

James P. Reynolds and David K. W. Wilson, Jr.,

Reynolds, Motl, Sherwood & Wright, Helena, Montana

For Defendant/Appellant:

Paul J. Luwe, Bozeman City Attorney, Bozeman,

Montana

For Defendant/Respondent:

Mike Salvagni, Gallatin County Attorney, Bozeman,

Montana
Justice James C. Nelson delivered the Opinion of the Court.

This is an appeal from a Memorandum and Order of the

Eighteenth Judicial District Court. Defendant City of Bozeman

Police Department (City) appeals that portion of the judgment which

requires the City to pay the plaintiff's attorney's fees. The

plaintiff Bozeman Daily Chronicle (Chronicle) appeals that portion

of the judgment which denies its request for the release of

investigative documents. We affirm the award of attorney's fees

and remand with instructions to the District Court with respect to

the release of investigative documents.

The issues on appeal are as follows:

1 . Must the investigative documents requested by the

Chronicle be released by the City and the Gallatin County Sheriff's

Department (Sheriff)?

2 . Is the Chronicle entitled to an award of its attorney's

fees?

On or about March 8, 1992, a cadet at the Montana Law

Enforcement Academy (Academy) in Bozeman, Montana, made an

allegation of sexual intercourse without consent against an offduty Bozeman city police officer (police officer). The Sheriff

conducted an investigation and made a request for prosecution to

the Gallatin County Attorney's Office.

The Gallatin, County Attorney recused his office and referred

the case to the Montana Department of Justice, County Prosecutor

Services Bureau. That office referred the case to the Missoula

County Attorney. The police officer was placed on administrative

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leave with pay pending the outcome of the investigation.

The Missoula County Attorney, Robert Deschamps, III, and two

of his deputies reviewed the file and conducted follow-up

interviews with the alleged victim. On April 20, 1992, Mr.

Deschamps sent a letter to John Connor, Chief of the County

Prosecution Services Bureau. Mr. Deschamps concluded that no

criminal charges should be filed. However, Mr. Deschamps stated

that it was the collective opinion of him and his deputies that

"[the police officer] should not be allowed to continue working as

a law enforcement officer because of inappropriate use of his

position in relation to his contacts with women." On April 21,

1992, the police officer resigned.

Approximately a week after the incident at the Academy which

prompted the investigation, Marlo Milliken, a Chronicle reporter,

was informed by Greg Noose, the administrator of the Academy, that

an "incident" had occurred. Ms. Milliken went to the Sheriff's

Office, where she was given some general information concerning the

incident and was shown the initial offense report.

MS. Milliken and the editor of the Chronicle, Bill Wilke,

attempted to obtain the police officer's name and the investigative

documents regarding the incident from the City and from the

Sheriff. The City and the Sheriff refused to turn over this

information to the Chronicle, claiming that it was confidential

criminal justice information.

On April 30, 1992, the Chronicle filed a Complaint and a

Petition for an Order to Show Cause (Petition) as to why the police

officer's name and the investigative documents should not be

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released. The Complaint and Petition alleged that the failure to

release that information violated Article II, Section 9 of the

Montana Constitution. The Chronicle also requested its attorney's

fees incurred in enforcing its constitutional rights, pursuant to

5 2-3-221, MCA.

A hearing on the Petition was held on May 22, 1992. At the

close of the hearing, the District Court ruled from the bench that

the name of the police officer should be released, citing this

Court's decision in Great Falls Tribune v. Cascade County (1989),

238 Mont. 103, '775 P.2d 1267. The District Court took under

advisement the matter of the release of the investigative documents

and award of attorney's fees and~ordered the parties to file briefs

by May 29, 1992.

On July 31, 1992, the District Court entered a Memorandum and

Order requiring the City and the Sheriff to provide the Chronicle

with a copy of the initial offense report but denying the

Chronicle's request for investigative documents. The reason given

for this ruling by the District Court was that the demands of

individual privacy of the alleged victim and witnesses exceeded the

merits of public disclosure. This Memorandum and Order did not

address attorney's fees and, on September 3, 1992, the Chronicle

moved the District Court to amend its Order to include an award of

such fees.

All parties briefed the issue of attorney's fees and, on

October 26, 1992, the District Court ordered that the City pay the

Chroniclets reasonable attorney's fees in bringing its action,

pursuant to 5 2-3-221, MCA. Thereafter, the Chronicle and the City

4
stipulated to a reasonable amount of attorney's fees, with the City

reserving the right to object to the award of attorney's fees

itself. On December 8, 1992, a final judgment in this case was

entered. The City appealed the award of attorney's fees and the

Chronicle cross--appealed the denial of the release of the

investigative documents.

Our standard of review relating to discretionary trial court

rulings, such as awarding attorney's fees, is whether the trial

court abused its discretion. Steer, Inc. v. Department of Revenue

(1990) I 245 Mont. 470, 474-75, 803 P.2d 601, 604. Our standard of

review relating to conclusions of law is whether the trial court's

interpretation of the law is correct. Steer, 803 P.2d at 603.

I - RELEASE OF INVESTIGATIVE DOCLJMENTS

In addition to the name of the police officer, the Chronicle

sought release of the investigative documents prepared in

connection with the alleged sexual assault by the police officer

against an Academy cadet. The District Court determined that such

documents were primarily confidential criminal justice information

and refused to release the same to the Chronicle.

Criminal justice information under the Montana Criminal

Justice Information Act of 1979 (the Act), 5s 44-5-101, et seq.,

MCA, is classified as public criminal justice information and

confidential criminal justice information.

Public criminal justice information means information:

made public by law:

i:i of court records and proceedings*

(cl of convictions, deferred sentekes, and deferred

prosecutions;

Cd) of postconviction proceedings and status;

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(e) originated by a criminal justice agency, including:

(i) initial offense reports;

(ii) initial arrest records;

(iii) bail records: and

(iv) daily jail occupancy rosters;

(f) considered necessary by a criminal justice agency

to secure public assistance in the apprehension of

a suspect; or

(9) statistical information.

Section 44-5-103(12), MCA.

Confidential criminal justice information means:

I;;

criminal investigative information:

criminal intelligence information:

(c) fingerprints and photographs:

Cd) criminal justice information or records made

confidential by law; and

(e) any other criminal justice information not clearly

defined as public criminal justice information.

Section 44-5-103(3), MCA.

With some qualifications, public criminal justice information

may be disseminated without restriction. Section 44-5-301, MCA.

The dissemination of confidential criminal justice information, on

the other hand, is restricted

to criminal justice agencies, to those authorized by law

to receive it, and to those authorized to receive it by

a district court upon a written finding that the demands

of individual privacy do not clearly exceed the merits of

public disclosure[.]

Section 44-5-303, MCA.

In this case, because the Chronicle is not a criminal justice

agency, the only way that the Chronicle can obtain access to the

confidential criminal justice information at issue is (1) if it is

authorized by law to receive such information; or (2) upon order by

a district court after the statutory written finding is made.

A. Authorized by Law

Article II, Section 9 of the Montana Constitution, the "Right

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to Know" provision, 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.

We have previously held that a person is "authorized by law" to

receive confidential criminal justice information on the basis of

that constitutional provision. Allstate Ins. Co. v. City of

Billings (1989), 239 Mont. 321, 325, 780 P.2d 186, 188.

In Allstate, an insurance company sought police investigation

files relating to the death of its insured. The insured, who was

HIV positive at the time of his death, died of an intravenous drug

overdose. Allstate, 780 P.2d at 187. In his application with the

insurance company, the insured denied ever being treated for AIDS

and denied prior illegal drug use. Allstate, 780 P.2d at 186-87.

The insurance company believed that the investigative files would

assist it in determining whether the insured had misrepresented

facts in his insurance application, which would preclude coverage.

Allstate, 780 P.2d at 187.

The trial court interpreted 5 44-5-303, RCA, to mean that

"authorized by law" required specific authorization by statute. We

concluded that the trial court's interpretation was too narrow and

held that the word lIlaw'W includes constitutional law as well as

statutory law. Allstate, 780 P.2d at 188.

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.

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Allstate, 780 P.2d at 188.

In accordance with Allstate, we reaffirm that a person -- in

this case, the Chronicle -- is "authorized by law" to receive

confidential criminal justice information under the Right to Know

provision of the Montana Constitution, qualified only by Article

II, Section 10, of the Constitution, the "Right to Privacy"

provision, which provides:

The right of individual privacy is essential to the well

being of a free society and shall not be infringed

without a showing of a compelling state interest.

While the Ch:ronicle has a right to know under the Constitution

and is, therefore, "authorized by law" to receive the investigatory

documents at issue, our inquiry must not stop there. We must, of

necessity, also consider the constitutional limitation of the right

to privacy on the Chronicle's right to know.

B. Proper Showing to Receive Information

The public's right to know and the individual's right to

privacy inevitably conflict in cases involving a request for

confidential criminal justice information under the Act.

Accordingly, in view of the purpose to protect individual privacy

underpinning the Act, as set forth in § 44-5-102, MCA, "it is

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

eligible to receive such specific confidential information."

Allstate, 780 P.2d at 189.

In this case, the Chronicle maintains that its right to the

confidential criminal justice information at issue exceeds the

privacy rights of the police officer because the police officer was

accused of improper sexual activity with an Academy cadet and by

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reason of the conclusion of Mr. Deschamps that "because of [his]

inappropriate use of his position in relation to contacts with

women," the police officer should not be allowed to continue

working in law enforcement.

The Chronicle contends that it has not asked for the names of

the alleged victim or witnesses and that the privacy rights of

these people can be protected under a protective order.

In order to evaluate whether the Chronicle has met its burden

and has made a proper showing of entitlement to receive the

investigatory documents at issue, we looktotwo previous decisions

of this Court. In Great Falls Tribune, we utilized the nowfamiliar two-part test to determine whether an individual has a

protected privacy interest under Article II, Section 10, of the

Montana Constitut.ion. This test requires answering two queries:

first, we determine whether the person involved has a subjective or

actual expectation of privacy: next, we evaluate whether society is

willing to recognize that expectation as reasonable. Great Falls

Tribune, 775 P.2d at 1268.

In Great Falls Tribune, holding that "[wlhatever privacy

interest the officers have in the release of their names as having

been disciplined . . . is not one which society recognizes as a

strong right," we stated that "it is not good public policy to

recognize an expectation of privacy in protecting the identity of

a law enforcement officer whose conduct is sufficiently

reprehensible to merit discipline." Great Falls Tribune, 775 P.2d

at 1269. We observed that:

law enforcement officers occupy positions of great

9
public trust . . _ [and] . . . the public has a right to

know when law enforcement officers act in such a manner

as to be subject to disciplinary action. The public

health, safety, and welfare are closely tied to an honest

police force. The conduct of our law enforcement

officers is a sensitive matter so that if they engage in

conduct resulting in discipline for misconduct in the

line of duty, the public should know. We conclude that

the public's right to know in this situation represents

a compelling state interest.

Great Falls Tribune, 775 P.2d at 1269.

In that case, we only required the release of the identities

of the police officers who were terminated and those who resigned,

declining to rule that the entirety of any personnel files need

also be revealed. Similarly, in the instant case, the District

Court required only the release of the police officer's name (along

with the initial offense report, which was public criminal justice

information).

It is important to point out, however, that in Great Falls

Tribune, the newspaper's petition only sought the release of the

names of the law enforcement officers. Additionally, since our

decision in that case, we have had occasion to consider and rule

upon a request for the release of a report detailing the results of

an investigation of a public official's alleged sexual harassment

of a city employee.

In Citizens to Recall Mayor v. Whitlock (1992), 255 Mont. 517,

a44 P.2d 74, the Hamilton City Judge filed a complaint with the

Human Rights Commission against the City of Hamilton and the mayor,

alleging that the mayor sexually harassed and discriminated against

her. The City hired an investigator to inquire into the

allegations, and the investigator prepared a report with his

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findings. Whitlock, 844 P.2d at 76. Thereafter, the City entered

into negotiations and, ultimately, into a settlement with the City

Judge. The City, however, refused to release the investigative

report to the public. Whitlock, 844 P.2d at 76. A citizens group

in Hamilton filed a complaint in the district court, requesting the

district court to order the City to release copies of the

investigator's report. After a hearing, the district court held

that an elected official had no reasonable expectation of privacy

when accused of misconduct in office and ordered the release of the

investigator's report. Whitlock, 844 P.2d at 76.

On appeal, we found that the investigator's report did not

discuss protected information such as personnel records or job

performance evaluations. Whitlock, 844 P.2d at 78. Rather, the

report, while not generated by a criminal justice agency (5 44-5-

103(7), MCA), and while not criminal justice information (5 44-5-

103(8), MCA), was the result of an investigation into the mayor's

alleged misconduct related to the performance of his official

duties. Applying the two-part test, we held that the mayor's

expectation of privacy was unreasonable as a matter of law.

Whitlock, 844 P.2d at 77-78. We also stated that the merits of

public disclosure were great because public funds were used to

settle the dispute. Whitlock, 844 P.2d at 78. Therefore, we held

that the public's right to know outweighed the mayor's right to

privacy. Whitloclc, 844 P.2d at 78.

Our decision in Whitlock was based on two reasons that apply

equally to police officers, given our discussion in Great Falls

Tribune regarding the position of great public trust which law

11

-.
enforcement officers occupy. Specifically, the nature of the

office [job] mandates that the office holder [officer] be properly

subject to public scrutiny in the performance of his duties, and

the public has the right to be informed of the actions and conduct

of such office holders [officers]. Whitlock, 844 P.2d at 77. In

Whitlock, we pointed out that allegations of sexual misconduct went

directly to the official's ability to properly carry out his duties

and, therefore, should not be withheld from public scrutiny.

Whitlock, 844 P.2d at 78.

Similarly, in the instant case and notwithstanding that the

police officer was off-duty at the time of the alleged incident,

the nature of the alleged misconduct ran directly counter to the

police officer's sworn duty to uphold the law, to prevent crime,

and to protect the public. We note the allegations of sexual

misconduct by the police officer; the fact that, before he

resigned, the City planned to take further disciplinary action

against the police officer regardless of whether he was criminally

charged; and the conclusion of Mr. Deschamps that the police

officer should not have been allowed to continue working as a law

enforcement officer because of inappropriate use of his position in

relation to his contacts with women. We hold that, notwithstanding

the police officer's resignation, such alleged misconduct went

directly to the police officer's breach of his position of public

trust; that, therefore, this conduct is a proper matter for public

scrutiny; and that, accordingly, the Chronicle has met its initial

burden to make a proper showing to receive the confidential

criminal justice information at issue.

C. Right to Privacy

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OIK-2 a party authorized by law to receive confidential

criminal justice information has met his initial burden to make a

proper showing .to receive that information, it then becomes

incumbent upon the agency or person in possession of the

information to demonstrate why all or portions thereof should not

be released because the rights of individual privacy outweigh the

merits of public disclosure.

In Allstate, we required the district court to balance the

competing right to know and right to privacy to determine what, if

any, information should be given to the party requesting the

information from the government. Allstate, 780 P.2d at 189.

While, as indicated above, the police officer's right to

privacy in the investigative documents at issue does not clearly

exceed the public's right to know, we must, nevertheless, also

consider the competing privacy rights of other persons involved in

the investigation of the alleged sexual assault. The alleged

victim and possibly witnesses and other persons have constitutional

privacy rights that must be considered in the release of the

investigative documents at issue. As we pointed out in Allstate:

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.

Allstate, 780 P.2d at 188.

Similarly, in Engrav v. Cragun (1989), 236 Mont. 260, 769 P.2d

1224, we reemphasized that the public's right to know is not

13
absolute and that the privacy rights of individuals, which, in

Montana, are more substantial than such rights guaranteed in the

United States Constitution, must be fully respected. Enarav, 769

P.2d at 1229. In that case, applying the two-part test, we held

that a student's, request for a broad category of confidential

criminal justice information for a research project was beyond the

reach of the public sector and that the public's right to know was

outweighed by the right of privacy protected by the Act and the

Montana Constitution. Enqrav, 769 P.2d at 1227-29.

In the instant case, the District Court ruled that the alleged

victim and witnesses have an expectation of privacy which exceeds

the merits of public disclosure. We agree. In this case,

especially in view of the fact that criminal charges were not

filed, the victim of the alleged sexual assault and the witnesses

involved in the investigation have a subjective or actual

expectation of privacy which society is willing to recognize as

reasonable. Accordingly, the privacy rights of the alleged victim

and of the witnesses outweigh the public's right to know and must

be accorded adequate protection in the release of any of the

investigative documents at issue.

While not directly related to privacy concerns, we also

pointed out in Encrrav that public exposure of law enforcement files

relating to ongoing criminal investigations would have a disastrous

effect upon law enforcement agencies in the performance of their

duty to protect the lives, safety and property of persons within

their jurisdictions and would have the potential effect of allowing

criminals and their allies to track the progress of investigations

14

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into their activities. Enurav, 769 P.2d at 1227. Here, a criminal

investigation will not be compromised as the investigation of the

alleged incident is not ongoing. It was determined that no

criminal action would be pursued against the police officer; the

investigation has terminated and he has resigned.

D. InCamera Inspection and Protective Order

Given our holding that the Chronicle is authorized by law and

has made a proper showing to receive the investigative documents at

issue: that the privacy rights of the police officer in such

information do not outweigh the public's right to know; and that

the privacy rights of the alleged victim and witnesses in such

information do outweigh the public's right to know, we must also

address the proper method of giving effect to the public's right to

know about the conduct of the police officer, while, at the same

time, protecting the rights to privacy of the alleged victim and

witnesses involved in the investigation of this case.

In Allstate, we spelled out the proper procedure to effect the

protection of the privacy rights of persons who are legitimately

entitled to such protection under the Constitution and under the

Act while, at the same time, balancing the public's competing right

to know as set forth above. Specifically, we required the district

court to conduct an in camera inspection of the documents at issue

in order to determine what material could properly be released,

taking into account and balancing the competing interests of those

involved, and conditioning the release of information upon limits

contained within a protective order. Allstate, 780 P.2d at 189.

While the Chronicle has not requested the names of the alleged

15

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victim and witnesses, the above procedure should, nevertheless, be

utilized in this case. Here, there is no indication from the

record that the District Court reviewed the investigative documents

requested by the Chronicle. The District Court simply ruled that

the investigative documents could not be released.

A review of such documents is, however, essential in

determining whether or not the privacy interests of the victim and

witnesses can be protected while disseminating the remainder of the

information. The District Court's failure to review the documents

at issue and its subsequent refusal to release any of them to the

Chronicle, while understandable because of the limited information

requested and released in Great Falls Tribune, was, nevertheless,

error, given our discussion in that case of the unique position of

police officers and our subsequent holding in Whitlock.

Accordingly, we remand this case to the District Court with

instructions to conduct an in camera inspection of the

investigative documents at issue in order to determine what

material can be released to the Chronicle. To the extent that they

have not already had an opportunity to do so, and while keeping in

mind our application of Great Falls Tribune and Whitlock to this

case, the City and the Sheriff should be given the opportunity to

demonstrate why all or portions of the investigative documents

should not be released because the rights of individual privacy

outweigh the merits of public disclosure. The Chronicle should be

given as much information as possible while maintaining the privacy

rights of the alleged victim and witnesses. If, on remand, the

District Court determines that the privacy rights of other persons

16
involved in this case, besides the police officer, also merit

protection under the two-part test, then those persons' privacy

rights should be protected, as well. To the extent the District

Court deems necessary, the release of any information should be

conditioned upon limits contained within a protective order,

II - AWARD OF ATTORNEY'S FEES

The District. Court awarded the Chronicle its attorney's fees

against the City. This award was based upon 5 2-3-221, MCA, which

provides:

A plaintiff who prevails in an action brought in district

court to enforce his rights to know under Article II,

Section 9 of the Montana Constitution may be awarded his

costs and reasonable attorney fees.

This section is discretionary. See Associated Press v. Bd. of Pub.

Educ. (1991), 246 Mont. 386, 804 P.2d 376.

In the instant case, the Chronicle's complaint alleged that

the refusal of the City and Sheriff to release the police officer's

name and the investigative documents violated Article II, Section

9 of the Montana Constitution. The Chronicle prevailed in

obtaining the name of the police officer involved, and therefore an

award of attorney's fees is within the purview of 9 2-3-221, MCA.

The City, nevertheless, argues that it should not have to pay

attorney's fees because it complied with 5 44-5-303, MCA, and the

directive of Allstate. The City states that it is faced with

Hobson's choice: if it releases investigative documents upon

request, it runs the risk of invasion of privacy lawsuits, whereas

if it does not release the demanded documents, it faces paying

attorney's fees if a plaintiff prevails in obtaining such

17
information under the Right to Know provision of the Constitution.

The City bases its argument on the proposition that the

Chronicle is not "authorized by law" to receive confidential

criminal justice information and that it becomes eligible to

receive such information only when so authorized by a district

court upon a written finding that the demands of individual privacy

do not clearly exceed the merits of public disclosure. The City

argues that the latter language was added to 5 44-5-303, RCA, by

the 1991 Legislature in response to our decision in Allstate.

In effect, the City maintains that the amendment to that

statute requires a lawsuit and order from the district court each

time there is a request for confidential criminal justice

information under the Act, and that, in having to comply with the

statutorily mandated procedure, it should not, thereafter, be

required to pay attorney's fees if a requesting party prevails in

obtaining the information demanded.

While we appreciate the damned-if-you-do, damned-if-you-don't

choice which criminal justice agencies face in these types of

cases, nevertheless, the City's argument must fail. We held in

Allstate, and reaffirm in this case, the principle that one is

"authorized by law" to receive criminal justice information by the

Right to Know provision of the Constitution. As we pointed out in

the former case, the Right to Know provision of the Constitution is

"self-executing" -- that is, legislation is not required to give it

effect.

The clear language contained within Article II, Section

9, indicates that there was no intent on the part of the

drafters to require any legislative action in order to

18
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 § 44-5-303, MCA, which requires

specific legislative authorization to review criminal

justice information would render the statute

unconstitutional.

Allstate, 780 P.2d at 188-89.

We have reviewed the legislative history associated with the

1991 amendment to § 44-5-303, MCA, and are unable to locate any

direct reference to our Allstate decision. We do note that one

proponent of the bill, John MacMaster, stated that "[wlithout this

[the amendment] in there, the District Court cannot allow someone

to look at [the information]."

While the legislature may have determined that it was

necessary or advisable to provide a classification of persons

eligible to receive criminal justice information, i.e., those

authorized by court order and a written finding, the fact remains

that one is still "authorized by law 'I to receive criminal justice

information by the Right to Know provision of the Constitution, and

n o further statutory authority is required to give that

constitutional right effect. The Chronicle premised its request on

its right to know under Article II, Section 9, and not on the

provision of § 44-5-303, RCA, requiring a court order and written

finding. Although the legislature amended § 44-5-303, MCA, it

nevertheless did not repeal or modify the district court's

discretionary authority to award attorney's fees under § 2-3-221,

MCA.

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Furthermore, and recognizing that the City and the Sheriff

acted conservatively in a good faith effort to comply with the Act

and our decision in Allstate, we nevertheless held in Associated

Press that such motives will not preclude a discretionary award of

attorney's fees under § 2-3-221, MCA. Associated Press, 804 P.2d

at 380. As in that case, here, the public benefits from receiving

full disclosure of relevant information, and will benefit because

of the Chronicle"s efforts. By awarding attorney's fees against

the City, the cost of litigation is properly spread among the

beneficiaries.

Finally, the City urges us to limit 5 2-3-221, MCA, to actions

under the Open Meetings Law, codified at Title 2, Chapter 3, Part

2, MCA. While that argument has some superficial appeal given the

fact that § 2-3-221, MCA, is found in the Open Meetings Law,

nevertheless, the plain language of the statute militates against

the City's position.

Section 2-3-221, MCA, allows a discretionary award of

attorney's fees when a plaintiff prevails in its rights under

Article II. Section 9 of the Constitution. That Article and

Section guarantee the right of the public to observe deliberations

and examine documents. Accordingly, unless and until the

legislature repeals or modifies 5 2-3-221, MCA, we decline to limit

the plain meaning of that statute to the interpretation urged by

the City.

Because the Chronicle's complaint was grounded in the Montana

Constitution, and because the Chronicle prevailed in this action,

the District Court's award of attorney's fees is affirmed.

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Attorney's fees on appeal are also allowable and should be

determined and awarded on remand.

REMANDED to the District Court for further proceedings

consistent with this opinion.

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