No. 12438 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

19 73 

GAZETTE PRINTING COMPANY, 

a corporation and STRAND HILLEBOE, 

Plaintiffs and Appellants, 

-VS - 

J. J. CARDEN, As Chairman and a member 

of the Industrial Accident Board of the 

State of Montana, and SIDNEY T, SMITH and 

J. C. CARVER, As members of the Industrial 

Accident Board of the State of Montana, and 

the INDUSTRIAL ACCIDENT BOARD OF THE STATE 

OF MONTANA, 

Defendants and Respondents, 

and 

SHELDON OLSON, Applicant for 

Interveneion and Respondent . 

Appeal from: District Court of the First Judicial District, 

Honorable Sid G. Ftewart, Judge presiding. 

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 

For Respondents : 

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, Assistant Attorney General, argued, 

Helena, Montana 

Filed : DEC 2 6 B9n 

Submitted : November 28, 1973 
Honorable 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 its members (now the Workmen's Compensation Division of the 

Department of Labor and Industry) to permit the inspection of 

those of its records which are open for inspection under the 

statutes of 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 description of these 

records cannot be given by plaintiffs because defendants have 

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 the prayer of the petition, plaintiffs asked that 

the Court define and designate which specific records of the 

defendant Industrial Accident Board are excepted by section 92- 

809, R.C.M. 1947, and that a writ of mandamus 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 shall be confidential. 

After depositions had been taken and answers to interrogatories had been filed, defendants moved for summary judgment, attaching thereto a list describing 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 to 
plaintiffs' inspection. 

In a memorandum opinion, the district judge stated: 

" * * * Plaintiffs seek either (1) that the 

Court go through ali the records of the 

Division and decide which are public 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 are public 

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 act which 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 confidential under 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, there must be a clear 

legal duty. 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 inspect public records. State ex rel. Holloran v. McGrath, 

104 Mont. 490, 67 P.2d 838; State v. 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 nature 
or 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 defendants claim 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 records which are admittedly public. 

The question remains as 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 

confidential character of the records which defendants claim to 

be confidential? 

This Court has held that it is proper in a mandamus 

action for the Court to determine whether the plaintiff is entitled to partial relief. State v. 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, 44 Mont. 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 a matter 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 effective 
administration of 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 court was 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 information which 

is confidential in character, thus leaving no genuine issue of 

material fact to be decided. However, the question as to the 

extent to which confidential and nonconfidential information 

may be unnecessarily intermingled,and the question as to whether 

nonconfidential information has 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 is based 

largely upon 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 index purely for the employees of the board and 

gives entirely too much information on claimants and is confidential under the rules of the board"; "This item 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 court did not have before it the original 

records or true copies thereof and depended upon descriptions 

of the records and their contents as provided in the depositions 

and answers to interrogatories. 

On a motion for summary judgment, depositions and answers 
eo interrogatories can be considered only to the 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 in granting the motion for summary judgment. 

If the record is inadequate, a motion for summary judgment must 

be denied. American Securit Company v. Hamilton Glass Company, 

254 F.2d 889. 

The burden of showing the absence of a genuine issue 

of material fact is on the movant. Byrne v. Plante, 154 Mont. 

6, 459 P.2d 266. That burden has not been met here. 

We feel it is proper here to make some observations. 

Wlth literally thousands of case files, extending over many years, 

~t seems obvious that for a single litigant such as plaintiff 

here to make a broadcast search and require perhaps numerous 

state employees to examine into the files, may create an undue 

burden upon state government; but the district court has the 

power under the rules by appointing commissioners, if need be, 

or in some other manner ascertaining a reasonable method of inspection during a reasonable period to provide the information 

desired. 

It further appears from the answers to the interrogacories that the method 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 this may create difficult problems of 
exa~nination and segregation of the material, the district court 

nas sufficient power and a duty to ascertain what materials are 

not confidential and to make such materials 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 it premature at this time to discuss 

these matters since this cause is being returned to the district 

court for further proceedings. 

For these reasons the court's order granting the motion 

for summary judgment and dismissing plaintiffs' petition was in 

error and the case is remanded to the district court with instructions to vacate, set aside and hold for naught its order and 

for further proceedings not inconsistent with this opinion. 

i \ ,"i j4: si.. L kiifi 0 lt , ' \,\' f ' Ltc)bL G~ ! 

-> -----------------------*----------- 

Hon. Bernard W. Thomas, district 

judge, sitting in place of Mr. Justice Frank I. Haswell.