IN THE SUPREME COURT OF THE STATE OF MONTANA 

MONTANA HUMAN RIGHTS DIVISION, 

Petitioner and Appellant, 

v. 

CITY OF BILLINGS, COUNTY OF YELLOWSTONE, 

Respondent and Respondent. 

ORDER 

The first paragraph of the opinion is amended to read, 

"The Montana Human Rights Commission, 

acting through its staff, the Montana Human 

Rights Division (herein referred to as HRC), 

appeals from summary judgment and a final 

judgment of dismissal in the Thirteenth 

Judicial District Court. We vacate the 

judgment and remand the cause for further 

action by the District Court." 

DATED this &&&day of September, 1982. 

For the Court 

%a*%

Chief ~ustice 
NO. 81-453 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

MONTANA HUMAN RIGHTS DIVISION, 

Petitioner and Appellant, 

VS. 

CITY OF BILLINGS, 

Respondent and Respondent. 

Appeal from: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone 

Honorable Diane G. Barz, Judge presiding. 

Counsel of Record: 

For Appellant: 

Frederick F. Sherwood argued, Helena, Montana 

For Respondent: 

McNamer, Thompson and Cashmore, Billings, Montana 

Charles Cashmore argued, Billings, Montana 

K. D. Peterson argued, City Attorney, Billings, Montana 

Submitted: May 20, 1982 

Decided: August 16, 1982 

Filed: AejGIL:j ;982 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

The Montana Human Rights Commission (HRC) appeals from 

summary judgment and a final judgment of dismissal in the 

Thirteenth Judicial District Court, in this employment 

discrimination action. We vacate the judgment and remand 

the cause for further action by the District Court. 

The sole issue before this Court is whether, as a 

matter of law, the HRC may, as part of its investigation of 

a discrimination complaint, require an employer to submit 

certain evidence relating to persons other than the complainants. 

Four persons filed discrimination complaints with the 

HRC against the City of Billings. William Wong alleged that 

he was discriminated against because of his Chinese ancestry, 

in his bid for promotion to Sergeant with the Billings 

Police Department. Jerry Klundt charged that he had been 

denied merit or step increases and had been demoted because 

of his Crow Indian background and in retaliation for union 

activities and for having filed a charge of discrimination. 

Win Poynter alleged that she had been passed over for promotion at Billings' Logan International Airport because of her 

sex, and jobs for which she was qualified had been filled by 

less qualified male applicants. Jesse Gonzales (who has 

since withdrawn his complaint) alleged that he was denied 

a five-year pay increase as a civilian employee of the 

Billings Fire Department and assigned undesirable shifts 

despite his seniority because of his sex and his MexicanAmerican background. 

During its investigation of these complaints, the HRC 

submitted a supplemental interrogatory to the city of 

Billings, requesting personnel files, employee evaluations, 
disciplinary records, test scores and application materials 

for complainants and certain other employees and applicants 

for employment with the City of Billings. When the City did 

not comply with the HRC1s request, the HRC issued subpoenas 

duces tecum, pursuant to section 49-2-203, MCA, demanding 

the information. The City answered that it "would not 

voluntarily turn over to [the HRC] the personnel files and 

test scores for the individuals requested other than the 

charging parties without consent of the persons that are the 

subjects of the personnel files unless of course there was a 

court order directing us to do so." 

On March 12, 1981, the HRC filed a petition with the 

District Court, for enforcement of the subpoenas duces 

tecum, against the City of Billings. The City responded 

that the information sought by the HRC is personal, and 

releasing it without prior consent of the individuals involved "may constitute an invasion of those persons' privacy 

and may render the City liable for that invasion." 

By stipulation, filed June 17, 1981, the parties agreed 

to the consolidation of the HRC's action against the City of 

Billings with a pending action by the HRC against the County 

of Yellowstone. Katherine Webster had filed a complaint 

with the HRC, alleging that she was discriminated against in 

hiring by the Yellowstone County Sheriff's Department on the 

basis of her sex, race, and marital status. Like the City, 

the County had refused to produce employment applications 

and other information pertaining to the other individuals 

who had applied for the position(s) for which Ms. Webster 

had applied. 

On August 7, 1981, after a July hearing on the matter, 

the District Court denied the HRC's motion for summary 
judgment, and granted the motion of the City and County for 

summary judgment. The accompanying memorandum of the District Court indicated the court's determination that (1) the 

disputed information is subject to the protection of Article 

11, Section 10, Mont. Const.; (2) respondents are not in a 

position to provide the information without the consent of 

the individuals whose right of privacy is affected; and (3) 

the HRC had shown neither a compelling state interest in 

obtaining the information, nor exhaustion of other sources 

of obtaining the information. The District Court entered 

its judgment of dismissal in favor of the City and County on 

September 28, 1981. The HRC appeals. 

The complainants have filed complaints with the Federal 

Equal Employment Opportunity Commission alleging that respondents' actions violated Title VII of the Civil Rights Act of 

1964, as amended, 42 U.S.C. 2000 et seq. That Commission, 

pursuant to section 706 of Title VII, is awaiting the outcome of this action before moving on complainants' charges. 

Article 11, Section 10, of the Montana Constitution 

states : 

"Right of Privacy. The right of individual 

privacyis essential to the well-being of a 

free society and shall not be infringed without the showing of a compelling state interest." 

The Transcript of the 1972 Constitutional Convention clearly 

indicates the significance to the delegates of this right, 

which nowhere appears in the Federal Constitution but has 

been judicially inferred from the provisions of the Bill of 

Rights. Delegate Campbell read into the record an editorial 

statement from the Montana Standard, February 3, 1972, here 

included in part: 
"We think the right of privacy is like a 

number of other inalienable rights; a 

carefully worded constitutional article 

reaffirming this right is desirable. Wade 

Dahood of Anaconda, Chairman of the Bill 

of Rights Committee, hit the nail on the 

head when he said: 'As government functions 

and controls expand, it is necessary to expand the rights of the individual.' The 

right to privacy deserves specific protection." Tr. of the Montana Constitutional 

Convention, Vol. V, p. 1681. 

Indeed, at one point, the delegates struck out the phrase 

requiring a compelling state interest, because, in the words 

of Delegate Harper: 

". . . that may be interpreted by whatever 

state agency happens to have an interest in 

invading my privacy at that particular time." 

Tr. at p. 1682. 

David Gorman, in an article entitled "Rights in Collision: 

The Individual Right of Privacy and the Public Right to 

Know," 39 Mont. L. Rev. 249, 251 (1978), noted that the 

delegates' decision to include the phrase after all was 

intended to strengthen rather than weaken the constitutional 

protection af f orded the individual right to privacy: 

"When the amended provision was reported out 

of the Style and Drafting Committee the delegate who had offered the deleting amendment 

moved for reconsideration, supporting his 

motion by saying that his general intent, to 

strengthen the protection of the individual, 

was not served by his amendment. The debate 

on the motion to reconsider (which passed) 

and the subsequent motion to reintroduce the 

'compelling state interest' test was lively. 

Various delegates took the positions that the 

standard was implicit, that the right of privacy 

had been rendered absolute, that the amended 

provision was meaningless to a court, and that 

in default of any explicit standard the courts 

could choose to apply a mere 'reasonableness' 

test to defeat privacy rights. It was this 

last argument which apparently swayed the convention as a whole, and the 'compelling state 

interest' test was restored. 

"This explicit statement of the weight to be 

accorded to the right guaranteed by the provision places a heavy burden on the state. It 

has even been suggested that the task faced by 
the state of showing a compelling interest is, 

in most situations, an impossible one. Clearly 

the delegates placed a very high value on the 

right of privacy, and they forcefully indicated 

that the courts were to accord it every protection available under this most stringent 

standard of judicial review." 39 Mont. L. Rev. 

at 251. 

There can be little doubt that the federal protection 

is less stringent and would allow discovery without requiring a showing of compelling state interest under these 

circumstances. The Tenth Circuit Court of Appeals addressed 

the question in the context of privacy rights under the 

Fourth Amendment, in Equal Employment Opportunity Commission 

v. University of New Mexico, Albuquerque (10th Cir. 1974), 504 

F.2d 1296, 1302, a case raising a legal issue similar to 

the present one: 

"The law governing the limits on the administrative power of investigation has evolved 

from the earlier judicial condemnation of 

fishing expeditions to that of enforcement of 

the subpoena power 'if the inquiry is within 

the authority of the agency, the demand is not 

too indefinite, and the information sought is 

reasonably relevant.' United States v. Morton 

Salt Co., 338 U.S. 632, 652, 70 S.Ct, 357, 

369, 94 L.Ed. 401 (1950)." 

The court concluded that, under federal law, 

". . . today that which we have previously 

considered to be administrative 'fishing 

expeditions' are often permitted; and that 

administrative subpoenas may be enforced 

for investigative purposes unless they are 

plainly incompetent or irrelevant to any lawful purpose." 504 F.2d at 1303. 

In the present case, the HRC seeks information which the District Court recognized as relevant to proper investigation by 

the HRC of the employment discrimination complaints; the 

subpoenas clearly indicate the information which is sought. 

Under the federal standard, discovery of the personnel files 

and records would not be restricted by a penumbral right of 

privacy. 
However, as noted, Montana's constitutional right of 

privacy is explicit. This Court has recognized that the 

protection it offers is more substantial than that inferred 

from the Federal Constitution. In State v. Hyem (1981), 

Mont. , 630 P.2d 202, 38 St.Rep. 891, we upheld the 

application of the exclusionary rule to private searches 

which invaded the privacy rights of individuals, a protection not found under the Federal Constitution. Therein we 

stated: 

"Privacy has been defined as the ability to 

control access to information about oneself. 

Fried, Privacy (1968), 77 Yale L.J. 475, 482, 

483." 630 P.2d at 209, 38 St.Rep. at 898. 

The HRC argues that enforcement of the subpoenas duces 

tecum would not be an infringement of a privacy right here, 

because no privacy right exists where there is no statutory 

privilege (see section 26-1-801, et seq., MCA), and where 

an employee or applicant for employment voluntarily submits 

the information to a third party. The HRC relies upon 

Hastetter v. Behan (1982), Mont. -- , 639 P.2d 510, 39 

St.Rep. 100, wherein this Court relied upon federal case law 

in upholding the respondent's disclosure of appellant's 

telephone records. We quoted Smith v. Maryland (1979), 442 

U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220: 

"'Second, even if petitioner did harbor some 

subjective expectation that the phone numbers 

he dialed would remain private, this expectation is not "one that society is prepared to 

recognize as 'reasonable.'" This Court consistently has held that a person has no legitimate expectation of privacy in information he 

voluntarily turns over to third parties.'" 

(Citations omitted.) 639 P.2d at 512-513, 39 

St.Rep. at 103. 

We find the HRC's reliance upon Hastetter, supra, 

misplaced. This Court is not bound to give precedential 

value to dicta, State v. Gopher (1981), Mont. , 631 
P.2d 293, 296, 38 St.Rep. 1078, 1081-82, and we must abandon 

that language of -- Smith, supra, which, incorporated into 

Hastetter, - appears to deny the protection of section 10 to 

--- all communications voluntarily given to third parties. 

Hastetter's holding was that the appellant had no reasonable 

expectation of privacy in telephone records justifying 

constitutional protection. In Hastetter, the disputed 

information was not the contents of the communication, the 

privacy of which was not addressed by this Court, but the 

fact of communication. That information was known by 

appellant to be recorded by the phone company for a number 

of business purposes. We were not persuaded that appellant 

could have reasonably expected the numbers he dialed to 

remain secret. 

In the present case, the personal information submitted 

to employers by prospective and current employees, and that 

contained in materials compiled by employers is quite different from the relatively innocuous telephone records in 

Hastetter. 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. The standard set forth in 

-- Hastetter is whether the party involved subjectively expetted the information to be and remain private, and whether 

society is willing to recognize that expectation as reasonable. This standard was adopted by the Supreme Court in 

Katz v. United States (1967), 389 U.S. 347, 88 S.Ct. 507, 19 

L.Ed.2d 576. 

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's constitutional right of privacy (510). 

The HRC argues that because an employee knows information concerning his employment may be sought by prospective 

employers in the future, he may not reasonably expect it 

will never be divulged to anyone else. It may well be 

unreasonable for an employee to expect that this information 

will never be divulged to prospective employers. It does 

not necessarily follow that, therefore, this information is 

unprotected by the right of privacy under all other circumstances, even where an employee can reasonably expect it 

will - not be divulged, such as in an investigation or during 
a public hearing in which the employee is only remotely 

involved. 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. 

We hold that the District Court correctly found that 

the information sought by the HRC is protected by Montana's 

constitutional right of privacy. 

We note in passing the HRC's claim that respondents 

have no standing to assert the constitutional rights of 

their employees in refusing to comply with the HRC's subpoenas duces tecum. One who is neither injured nor jeopardized by the operation of a statute cannot challenge its 

constitutionality. State v. Kirkland (1979), Mon t . 

, 602 P.2d 586, 590, 36 St.Rep. 1963, 1966. Here, 

respondents argue that disclosing personal information about 

employees and applicants for employment without the consent 

of those individuals involved or without a court order 

forcing them to disclose, places them in jeopardy because it 

could lead to their being sued by those individuals for 

revealing private information. Other courts have held, and 

we agree, that potential economic injury is sufficient to 

establish standing. In Falcon v. Alaska Public Offices Commission (Alaska, 1977), 570 P.2d 469, the court found a 

doctor had the right to deny, on behalf of his patients, 

government access to his files, because such disclosure 

could discourage prospective patients. 

The delegates to the 1972 Constitutional Convention 

recognized that the right of privacy is not absolute, and 

that under certain circumstances, the State's interest in 

obtaining information about individuals may outweigh the 
individuals' right of privacy. Tr. of the Montana Constitutional Convention, Vol. VI, p. 1851. 

In State ex rel. Zander v. District Court (1979), 181 

Mont. 454, 458-459, 591 P.2d 656, 660, we recognized the 

rule: 

"From these cases and our constitutional 

language certain principles of law emerge. 

The right of individual privacy is a fundamental constitutional right expressly recognized as essential to the well-being of our 

society. The constitutional guarantee of 

individual privacy is not absolute. It must 

be interpreted, construed and applied in the 

light of other constitutional guarantees and 

not in isolation. The right of individual 

privacy must yield to a compelling state interest. " 

See Hyem, supra, 630 P.2d at 205-206, 38 St.Rep. at 894: 

"Under the 1972 Montana Constitution, the only 

exception to the restriction against the invasion of individual privacy is a compelling 

state interest." 

Here we find a compelling state interest which itself 

arises from the Montana Constitution. Article 11, Section 

4, of the Montana Constitution states: 

"The dignity of the human being is inviolable. No person shall be denied the equal 

protection of the laws. Neither the state 

nor any person, firm, corporation, or institution shall discriminate against any person 

in the exercise of his civil or political 

rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas." 

This section was unanimously adopted by the delegates. 

Under the Montana Human Rights Act of 1974, section 49- 

1-102, MCA, provides that the right to be free from discrimination includes the right to obtain and hold employment 

without discrimination. The Human Rights Commission, administrative watchdog over discriminatory practices in 

Montana, possesses subpoena power as provided under section 

49-2-203, MCA: 
''1) The commission may subpoena witnesses, 

take the testimony of any person under oath, 

administer oaths, and, in connection therewith, require the production for examination 

of books, papers, or other tangible evidence 

relating to a matter either under investigation by the commission staff or in question 

before the commission. . ." 

The investigative powers of the HRC must be broad 

enough to allow a thorough scrutiny of the circumstances 

surrounding complaints of discrimination. The scrutiny in 

the present case must involve comparison of employee records, 

applications, evaluations, tests, etc. There is simply no 

other way for the HRC to determine whether the City and 

County discriminated in the ways alleged by complainants. A 

consideration of the complainants' files alone would not 

yield the comparative data which is essential here. To deny 

the HRC access to the material it seeks renders ineffectual 

a substantial portion of its statutory investigative powers, 

and is a large step toward drawing the teeth of the HRC. 

That we are unwilling to do. 

Respondents argue, and the District Court found, that 

because the HRC did not seek the consent of the individuals 

involved to its perusal of their employment records, that it 

had not exhausted its means of obtaining the information, 

and thus had not established a compelling state interest. 

We do not agree, for several reasons. In the first 

place there are well over one hundred files involved. The 

time, cost, and inconvenience of the search for individual 

employees, past and present, and the attempt to gain their 

consent, would be prohibitive. Undoubtedly, a good many 

individuals, particularly those who may have been hired or 

promoted because of an employer's discriminatory rejection 

of more qualified or equally qualified applicants, would 
refuse the HRC access to the files. The respondents have 

suggested that, in that event, the files could be subpoenaed 

directly from the individual employees; that would be impracticable and would lead to yet more litigation. Finally, 

some employees whose files are sought may have died or left 

the area, or simply may be impossible to track down. The 

only reasonable, thorough and relatively efficient means of 

obtaining access to the files is through the employer. We 

do not find that the HRC has failed to establish a compelling state interest by failing to contact and obtain the 

permission of those employees and ex-employees of the City 

and County whose files they seek. The practical realities 

of the situation, and the greater importance of the protection from discrimination convince us that the HRC has made a 

sufficient showing of a compelling state interest, and that 

the disputed files and materials must be made available to 

the HRC. 

The respondents suggest that test scores and other 

arguably sensitive material could be altered in such a way 

that the names of the employees would not be disclosed to 

the HRC, and thus the intrusion would be less objectionable. 

The HRC correctly points out that many names are indicators 

of racial origin, frequently of sex, and in some cases of 

marital status, which information might not be available in 

the file itself. Furthermore, the HRC objects to any alteration of files because, at that point, the accuracy of the 

HRC's investigation depends upon the good faith of the 

employer, the very party charged with discriminatory behavior, whose temptation to doctor files undoubtedly increases 

with the likelihood the HRC will find that employer guilty 

of discriminatory practices. 
We agree with the HRC, that all information in the 

employers' personnel files, which could reasonably cast some 

light on the truth or falsity of complainants' allegations, 

and which is included under section 49-2-203, MCA, should be 

subject to the investigative subpoena of the HRC. 

We have concluded that it is necessary that respondents 

provide the requested information to the HRC. It is also 

necessary to establish some substantial protection of the 

privacy of those individuals whose files are made available 

to the HRC. It is apparent that there must be a step by 

step learning process involved, in which the administrative 

agencies and the courts will determine on a case by case 

basis how the right to privacy and the right to know should 

be balanced. 

The HRC argues that its regulation providing for 

confidentiality in investigations sufficiently protects the 

individuals involved. The regulation states: 

"Confidentiality. (1) Neither a charge nor 

information obtained in the investigation of 

a charge, nor any records required by the 

Commission to be filed with the Commission 

shall be made matters of public information 

by the Commission prior to the certifying 

of a case for public hearing (including hearing 

on a no cause finding, a default hearing or 

a hearing alleging violation of a conciliation 

agreement). This provision does not apply to 

such earlier disclosures to the Charging Party, 

the Respondent, witnesses, counsel, and representatives of interested Federal, State and 

local agencies as may be appropriate or necessary to the carrying out of the Commission's 

functions under the act, nor to the publication 

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. The Commission may enter into agreements with any federal, 

state, or local governmental agency for the 

deferral of complaints or sharing of information regarding complaints which agreements may 
require more stringent standards of confidentiality with regard to such complaints or such 

information." Administrative Rules of Montana 

$24.9.212. 

There is very limited protection in this regulation so 

far as the right of privacy is concerned. The restriction 

on the Commission does not apply to an early disclosure to 

the charging party, the respondent, witnesses, counsel, and 

representatives of interested agencies. In itself, this 

disclosure could be sufficient to eliminate the effective 

protection of the right of privacy. In addition, if the HRC 

certifies a case for public hearing, then it is up to the 

Commission to decide the extent and nature of the information to be given at the public hearing. We do not find this 

regulation to be an adequate protection of the right of 

privacy. 

We are aware that clamping too tight a lid on the HRC's 

freedom to disseminate the information obtained from respondents establishes yet another constitutional conflict. 

In Kuiper v. District Court (1981), - Mont. - , 632 

P.2d 694, 696-698, 38 St.Rep. 1288, 1290-1292, this Court 

reversed a District Court order forbidding use of certain 

documents already in the possession of the appellant "for 

any purpose whatsoever," finding the order unconstitutionally 

proscribed appellant's freedom of expression. We agreed 

that First Amendment protection extended to litigation and 

to the fruits of discovery, 632 P.2d at 698, 38 St.Rep. at 

1291, and agreed with Judge Bazelon in In re Halkin (D.C. 

Cir. 1979), 598 F.2d 176, 186, that while a protective order 

is not automatically a prior restraint, "the fact that [it] 

poses many of the dangers of a prior restraint is sufficient 

to require close scrutiny of its impact on protected First 
Amendment expression." 632 P.2d at 697, 38 St.Rep. at 1291. 

We referred to the three-prong test used in Nebraska Press 

Ass'n. v. Stuart (1976), 427 U.S. 539, 96 S.Ct. 2791, 49 

L.Ed.2d 683, and Halkin, supra, requiring the court to find 

that the harm posed by dissemination is substantial and 

serious, the restraining order is narrowly drawn and precise, and there is no less intrusive alternative means of 

protecting the public interest. 

In Mountain States Telephone & Telegraph Company v. 

Department of Public Service Regulation (1981), Mont. 

, 634 P.2d 181, 38 St.Rep. 1479, this Court issued a 

protective order to prevent the public disclosure of "trade 

secrets" which the Court held could be obtained by the 

agency during its investigation. The broad rationale applies to this case: During an appropriate investigation, the 

agency is entitled to all pertinent information possessed by 

an entity subject to its regulating power; when the public 

right to know collides with that entity's right to protect 

certain private information, a balancing of rights is necessary; a protective order may be fashioned which allows the 

agency the "fullest available information," while providing 

the public with "all information required to enable citizens 

to determine the propriety of governmental actions affecting 

them." We relied upon Pennzoil Co. v. Federal Power Commission (5th Cir. 1976), 534 F.2d 627, 631: 

"Implicit in [F.C.C. v. Schreiber (1965), 381 

U.S. 279, 85 S.Ct. 1459, 14 L.Ed.2d 3831 is 

the proposition that the balancing of the public and private interests might compel secrecy. . . Therefore, in reviewing this case we must 

likewise determine whether the Commission abused 

its discretion in balancing the public and private interest." 634 P.2d at 187, 38 St.Rep. at 

1485. 
We found that the District Court's failure to protect the 

trade secrets was improper because a satisfactory balancing 

of interests could have been achieved, and we issued a 

directive for a protective order. The order allowed full 

disclosure to the PSC and sought to limit the release of 

private information by "provisions which protect the confidentiality of the trade secret information." 634 P.2d at 

187, 38 St.Rep. at 1485-1486. 

In the case at bar, much of the problem with restricting dissemination by the HRC, or public access to the information 

in the disputed personnel files, lies in the fact that some 

of that information is undoubtedly neither sensitive nor 

private information, and, if viewed apart from the more 

damaging information, as it must be if a protective order is 

to be narrowly drawn, is neither subject to the protection 

of the privacy right, nor particularly relevant to the 

investigation at hand. 

We conclude that the needs and rights of the parties 

and the persons whose files are sought, as well as the 

general public, are best met by allowing broad discovery to 

the HRC, but restricting the release of information which 

suggests the identity of employees whose files may be used 

in investigating the alleged discriminatory practices by 

respondents. We therefore direct the District Court to 

prepare an order requiring respondents to furnish the requested information to the HRC, but providing that the HRC 

shall not disclose the information to any individual, agency 

or party (other than respondents) outside of the HRC except 

under the following circumstances: 

(1) In the event that the HRC deems it necessary to 

hold a public hearing on the alleged discriminatory prac- 
tices, or to disclose the information to anyone outside the 

HRC (other than respondents), it shall protect the privacy 

of any person(s) as to the elements of such information by 

altering the information to provide for the anonymity of the 

person(s) involved. This will include the elimination of 

names, specific ethnic designations and other classifications which reasonably might allow identification of the 

person(s) whose privacy right is to be protected; except 

that 

(2) In the event that the HRC determines that the 

release of information reasonably subject to a right of 

privacy claim is required in a way which may disclose the 

identity of person(s) involved; then prior to the release of 

that information the HRC shall obtain from the District 

Court a further order of authorization and protection. 

The orders of the District Court shall provide that 

failure by the HRC or other persons or agencies to whom the 

information is released to comply with the above order(s) 

shall make the offending party subject to contempt proceedings. 

We suggest to the legislature that it consider legislation similar to 42 U.S.C. 52000e8(e) which would protect the 

right of privacy by fines and penal sanctions. 

We vacate the judgment of the District Court and remand 

to the District Court for such further proceedings, including the entry of a protective order, as are required under 

this opinion. 
We concur: 

d, %e& 

Chief Justice 

cl-d+ Justices k.sdn~d,