No. 12438 INTHE SUPREME COURT OF THE STATE OF MONTANA 1973

GAZETTE PRINTING COMPANY, a corporation and STRAND HILLEBOE, Plaintiffsand Appellants, -VS

# - J. J. CARDEN, AsChairman and a member of the IndustrialAccident Board of the Stateof Montana, and SIDNEY T, SMITH and J. C. CARVER, 

### As members of the Industrial Accident Board of the Stateof Montana, and the INDUSTRIALACCIDENT BOARD OF THE STATE OF MONTANA, Defendants and Respondents, and SHELDON OLSON, Applicant for Interveneion and Respondent

# .

Appeal from: DistrictCourt of theFirstJudicialDistrict, Honorable Sid G. Ftewart, Judgepresiding. Counsel of Record: For Appellants: Moulton, Bellingham, Longo & Mather, Billings, Montana Bernard W. Longo argued, Billings, Montana Lawrence W. Petersen argued, Billings, Montana Small, Cummins and Hatch, Helena, Montana ForRespondents: Keller, Reynolds and Drake, Helena, Montana Paul T. Keller argued, Helena, Montana For Intervenor: Keefer and Roybal, Billings, Montana Neil S. Keefer argued, Billings, Montana Amicus Curiae 

# - Hon. Robert L. Woodahl, Attorney General, Helena, Montana John P. Connor, AssistantAttorney General, argued,

Helena, Montana

Filed: 

### DEC2

## 6B9n Submitted:November 28, 1973Honorable Bernard 

### W. Thomas,District Judge, sitting in place of Mr. Justice Frank 

### I. Haswell,delivered the Opinion of the Court. Plaintiffs brought this action in the district court for a writ of mandamus to compel the Industrial Accident Board and itsmembers (now the Workmen's Compensation Division of the Department of Labor and Industry) to permit the inspection of those of its recordswhich are open for inspection under the statutesof this state. Plaintiffs appeal from the district court's order granting defendants'motion for summary judgment and dismissing plaintiff's petition. In their petition plaintiffs allege that defendants maintain certain records; that a full descriptionof these records cannotbe given by plaintiffs because defendantshave refused plaintiffs access to them; that plaintiffs desire to have access to all records of defendants with the exception of those specifically covered by section 92-809,R.C.M. 1947; that plaintiffs had demanded access to the records and had been refused. In theprayer of the petition, plaintiffs asked that the Court define and designatewhich specific records of the defendant Industrial Accident Board are excepted by section 92- 809,R.C.M. 1947,and that a writ ofmandamus be issued requiring defendants to give plaintiffs access to public records. Section 92-809,R.C.M. provides that information supplied by employers and insurers shallbe confidential. After depositionshad been taken and answers to interrogatorieshad been filed,defendantsmoved for summary judgment, attaching thereto a listdescribing twenty-eight kinds of their records which they considered to be confidential and not open to public inspection. By its order granting summary judgment and dismissing the petition, the district court denied plaintiffsall relief,making no reference to the list attached to defendants' motion or to any records which might be open toplaintiffs' inspection. In amemorandum opinion, the district judge stated: 

### " 

## * 

## * * Plaintiffs seek either (1)that the Court go through ali the records of the Division and decidewhich arepublic and which are private, or (2) that the Court order all the records to be thrown open to them so that they can decide which arepublic or private. As to the former, it is not the function of the Court to make such a blanket determination. Under our system,the Courts only decide specific controversies,i.e., whether a given document is, or is not, a public record. As to the latter request

## * * * the Court has no power to compel the performance of an actwhich the law does not require as a duty.



### " 

## * * 

## * The sole question before the Court is the legal question of whether the Plaintiffs are entitled to inspect all of the records of the Workmen's Compensation Division." Having reduced the issues to that single legal question and having determined that some of the records are clearly confidentialunder the law, the district court then held that the

case was ripe for summary judgment against plaintiffs. Mandamus lies to compel the performance of an act which the law specifically enjoins as a duty resulting from an office. Section 93-9102,R.C.M. 1947. However, theremust be a clear legalduty. State ex rel. Beach

### v. District Court, 29 Mont. 265, 74 P. 498. The statutes of Montana provide a general right of inspection of public records. Sections 59-512, and 93-1001-4, R.C.M. 1947. There appears to be no disagreement with the principle that mandamus is an appropriate means of enforcing the right to inspectpublic records. State ex rel. Holloran v. McGrath, 104 Mont. 490, 67 P.2d 838; Statev. State Bank of Moore, 90 Mont. 539, 4 P.2d 717. Plaintiffs argue that the district court erred in not giving them partial relief, in refusing to ascertain the natureor records sought to be inspected, and in failing to grant the writ as to those records which are not confidential. Since it appears from the face of the record that defendantsclaim only part of their records to be confidential and admit that others are open to public inspection, at the least, plaintiffs were entitled to a judgment assuring them access to the recordswhich are admittedly public. The question remainsas to whether defendants were entitled to summary judgment on the issue of access to records claimed by them to be privileged and not open to public inspection. The answer to this question depends upon the resolution of two further questions: (1)Was the district court correct in its view that it was not required to review the records and make a determination as to which of them are public and which private? and (2) Is there any genuine issue of material fact as to the confidentialcharacter of the records which defendants claim to be confidential? This Court has held that it isproper in amandamus action for the Court to determine whether the plaintiff is entitled to partial relief. Statev. State Bank of Moore, supra. Particularly where the public interest is involved,the Court should grant such relief as the circumstances warrant,whether it is all or less than that sought. State ex rel. Stuewe v. Hindson, 44Mont. 429, 120 P. 485;State ex rel. Morgan v. Ret. Sys., 136 Mont. 470, 348 P.2d 991. Although it is true that neither plaintiffs nor the general public have a direct financial interest which will be affected by the outcome of this action, protection of those who have sustained injury while engaged in industry is amatter of public interest,and the proper operation of the compensation program designed for their protection is a matter of general public interest,as, indeed, is the effectiveadministrationof all agencies of the state government. In the present situation, the court should give such relief as the circumstances justify. As to the first question posed, it is our view that the courtwas in error. As to the second question defendants contend that it is apparent from the depositions and answers to interrogatories

on file that the records in question contain informationwhich is confidential in character, thus leaving no genuine issue of material fact to be decided. However, the question as to the extent towhich confidential and nonconfidential information may be unnecessarily intermingled,and the question as towhether nonconfidential informationhas been withheld because it happens to appear in individual claim files along with confidential information,are genuine issues of material fact which have not been decided. Further, information available to the district court on the nature and contents of the records in question isbased largelyupon descriptions, opinions and conclusions. An examination of answers to interrogatories shows that they contain such statements as these: "This again is completely confidential because it is an indexpurely for the employees of the board and gives entirely toomuch information on claimantsand is confidential under the rules of the board"; "Thisitem gives claimants

name and address, the amount he received in settlement,and other confidential information."; "This file contains

## * 

## * * other pertinent records, confidential under section 92-809." The district courtdid not have before it the original records or true copies thereof and depended upon descriptions of the records and their contentsas provided in the depositions and answers to interrogatories. On amotion for summary judgment, depositions and answerseo interrogatories can be considered only tothe extent that they contain admissible evidence. 6 Moore's Federal Practice, 11 56.11(4), p. 2191; Roucher v. Traders & General Insurance Company, 235 F.2d 423. Parol evidence of the contents of public records v~olates the best evidence rule and is inadmissible. 29 Am Jur 2d, Evidence, Sec. 482, p. 541; 32A C.J.S. Evidence 6 804, p. 137. There was insufficient competent evidence for the court's consideration ingranting themotion for summary judgment. If the record is inadequate, a motion for summary judgment must be denied. American SecuritCompany v. Hamilton Glass Company, 254 F.2d 889. The burden of showing the absence of a genuine issue of material fact is on themovant. Byrne v. Plante, 154 Mont. 6, 459 P.2d 266. That burden has not been met here. We feel it isproper here tomake some observations. Wlth literallythousands of case files, extending over many years, ~t seems obvious that for a single litigant such asplaintiff here tomake a broadcast searchand require perhaps numerous stateemployees toexamine intothe files, may createan undue burden upon stategovernment; but the districtcourt has the power under the rulesby appointing commissioners, if need be,

or insome other manner ascertaining a reasonablemethod of inspection during a reasonable period toprovide the information desired. It further appears from the answers tothe interrogacoriesthat themethod of record keeping by the Industrial Accident Board is such that legally confidential material and nonconfidential material is intermingled, perhaps inadvertly or deliberately. But, while thismay createdifficult problems ofexa~nination and segregation of the material, the district court

nas sufficientpower and a duty to ascertain what materials are not confidential and to make suchmaterials available for public inspection. While there are other specific problems presented here, including the effective use of attorney general's "opinions"

or "directives"we think itpremature at this time to discuss thesematters since this cause is being returned to the district court for further proceedings. For these reasons the court's order granting themotion for summary judgment and dismissing plaintiffs' petition was in

error and the case is remanded to the district courtwith instructions to vacate, set aside and hold for naught its order and for further proceedings not inconsistentwith this opinion.

i \ 

### ,"i 

# j4:

si.. Lkiifi 0 lt ,' 

### \,\' 

### f ' Ltc)bL G~ ! -> -----------------------*----------- Hon. Bernard W. Thomas, district judge, sitting in place of Mr. Justice Frank 

### I. Haswell.