IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

BARRY ENGRAV, 

Plaintiff and Appell-ant, 

-vsMOREY CRAGTJN, Granite County Sheriff, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Third Judicial District, 

In and for the County of Granite, 

The Honorable Ted L. Mizner, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Rarry Engrav, pro se, Missoula, Montana 

For Respondent : 

Hon. Marc Racicot, Attorney General, Helena, Montana 

Paul D. Johnson, Asst. Atty. General, Helena 

J. Allen Bradshaw, Granite County Attorney, philipsI- burg, Montana C?" 

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a1 a - P etFiled: 2- w "" !Y 

Submitted: Dec. 9, 1989 

Decided: February 27, 1989 

0 

Clerk 
Mr. Chief Justice J. A. Turnage delivered the Opinion of the 

Court. 

Barry Engrav, proceeding pro se, appeals the order of 

the District Court of the Third Judicial District, Granite 

County, denying his request for records of the Granite County 

Sheriff's Department. Appellant requested records of the 

daily log of phone calls, case files of criminal 

investigations, pre-employment investigations, and lists of 

arrested persons. The sheriff's office denied the request, 

and the District Court. upheld the sheriff's denial, finding 

that the right of privacy of those people on the requested 

lists and investigation reports held a riqht of privacv which 

outweighed the public right to know. 

The issue on appeal is: 

Whether the District Court properlv denied the plaintiff access to the requested information on the grounds that 

the right of privacy of the individuals outweighed the public 

right to know? 

Appellant is a University of Montana student and a 

lifetime resident of Granite County who is interested in 

researching and reporting on various aspects of Granite 

County law enforcement. He requested information concerninq 

records in the Granite County Sheriff's office. These were: 

(1) daily log of telephone calls, (2) case files of criminal 

investigations, (3) pre-employment investigation reports, and 

(4) a list of persons arrested since January 1, 1987. 

Appellant alleged that the phone log and list of radio 

calls were important to determine the rate of crime reported 

by the public, the response of the sheriff's department to 

those reported crimes, and the seriousness of the reported 

crimes. He alleged that the case files for criminal investigations were important because: 
Without access to case files of criminal 

investigations, Plaintiff is unable to 

assess the quality of the Defendant's 

investigative procedures and the rate of 

solved crimes. 

Appellant requested pre-employment investigation materials because without them he would not be able to determine 

the adequacy of the defendant's hiring policies or the quality of personnel hired by the defendant. He wanted to see j.5 

the policies were up to the standards that taxpaying citizens 

were entitled to. 

Lastly, appellant wanted the list of persons arrested 

since January 1, 1987, to investigate the quality of care 

given to incarcerated inmates. 

Respondent, Granite County Sheriff, denied these requests by Engrav. 

The issue is whether the District Court properly denied 

the requests for the daily telephone logs, all criminal 

investigatory files, active and inactive pre-employment 

investigatory files, and arrest records, declaring that the 

right of privacy outweighed the public right to know. The 

Constitution of the State of Montana states two confl-icting 

rights. Article 11, Section 9, states: 

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. 

Article 11, Section 10, reasserts an individual's right to 

The right of individual privacy is 

essential to the well-being of a free 

society and shall not be infringed 

without the showing of a compellinq 

state interest. 
When reading the transcript from the Constitutional 

Convention for the 1972 Montana Constitution, it is clear 

that the framers, in wording Article 11, Section 9, took 

painstaking care to consider both the public right to know 

and an individual's right of privacy. Volume VII, Mont. 

Const. Conv. at 2483-2498. The primarv concern of the delegates to the convention was in enacting an article which gave 

the public the power to request information from government 

agencies and public bodies. The convention delegates specifically inserted the words "except in cases in which the 

demand of individual privacy clearly exceeds the merits of 

public disclosure." 

The committee intends by this provision 

that the right to know - not be absolute. 

The right of individual privacy is to be 

fully respected in any statutory embellishment of the provision as well as in 

the court decisions that will interpret 

it. To the extent that a violation of 

individual privacy outweighs the public 

right to know, the right to know does 

not apply. . . . 

Volume 11, Mont. Const. Conv. at 632. 

Delegates to the convention carefully discussed the 

introduction of a specific section for the right of privacy, 

and subsequently created Article 11, Section 10. They took 

into consideration the fact that neither the United States 

Constitution nor the original Montana Constitution expressly 

stated a right to privacy in the bill of rights. According 

to the delegates, since adopting the original Montana Constitution, the right had clearly developed and should be enumerated in the Constitution. 

One of the reasons that the delegates believed the 

right should be explicit]-y enumerated was that modern tech-- 

nology is used today to invade individual privacy, including 
wire taps, bugging devices, photo surveillance and computerized data banks. 

Appellant declares that § 2-6-102, MCA, is the standard 

for the public right to know. It states that "every citizen 

has a right to inspect and take a copy of any public writings 

of this state." Respondent argues that the governing statutes are within the Montana Criminal Justice Information Act 

of 1979, SS 44-5-101 through 44-5-415, MCA, whose purpose is, 

in part, to establish effective protection of individual 

privacy in confidential and nonconfidential criminal justice 

information collection, storage, and dissemination. 

In considering the possible conflict between the Articles of the Constitution and among the Montana statutes, it 

is important to remember that in all of the relevant laws the 

right of privacy for the individual is expressly regarded. 

We adopted. a two-part test in Montana Human Rights 

Division v. City of Billings (1982), 199 Mont. 434, 649 P.2d 

1283, which determines whether a person has constitution all^^ 

protected privacy interest. The first part of the test is 

whether the person involved had a subjective or actual expectation of privacy. The second is whether society is willing 

to recognize that expectation as reasonable. In applying the 

test in Montana Human Rights Division, we held that there was 

an individual privacy interest concerning personnel records 

and employment applications. In that case, the Human Rights 

Commission requested employment information as part of an 

investigation of a discrimination case. Defendant City of 

Billings refused to relinquish the information. We held that 

the Human Rights Commission could require an employer to 

submit certain evidence concerning employee records hut that 

the Commission had to prevent invasion into the privacy of 

those people whose names appeared on the employment information. The Human Riqhts Commission was not to divul.ae any of 
the information to outside sources. The only instance in 

which the Commission could do so was if it decided that a 

public hearing was necessary, and only then if it altered the 

information sufficiently to guarantee anonymity of the persons involved. 

The test was also applied in Missoulian v. Board of 

Regents of Higher Education (1984), 207 Mont. 513, 675 P.2d 

962, where the Missoulian requested information concerning 

job performance evaluations of the six Montana university 

presidents. The Board of Regents refused to submit the 

information, declaring that the information was within the 

actual expectation of the individuals' privacy rights and 

that the expectation was reasonable. This Court agreed with 

the Board. The evaluations were self-evaluations and evaluations by Board members. It was clear that if these evaluations were open to public scrutiny, none of the evaluators 

would be as candid as when evaluations are confidential. 

Moreover, the evaluations could be used as a vindictive 

mechanism against university employees or presidents h!: those 

who dislike the individuals. 

In applving the two-part test to the case at bar, we 

must first decide whether the persons involved have a suhjective or actual expectation of privacy. It is clear from the 

expectations of the individuals involved, that there i.s an 

actual expectation of privacy. It is obvious that when 

individuals call the police station, they have an actual 

expectation of privacy for the information they give. For 

those citizens who are willing to report crimes that they 

witness but wish to remain anonymous, the expectation is 

actual. 

Public exposure of law enforcement files relating to 

ongoing criminal investigations would also have a disastrous 

effect upon law enforcement agencj-es in the performance of 
their duty to protect the lives, safety and property OF 

persons within their jurisdictions. If criminals and their 

allies could daily track the progress of investigations into 

their criminal activities, Montana would become a worldwide 

mecca for criminal entrepreneurs. The public policy of this 

state cannot permit this to occur. 

There is an actual privacy interest where criminal 

investigations are concerned because investigations are 

conducted concerning people under scrutiny but are later 

dismissed from suspicion. Those persons do not expect to 

have their names publicized for something with which they 

have no actual involvement. Moreover, names of informants 

involved in criminal investigations, or undercover police 

officers, if made public, would put the lives of these people 

and the investigation in jeopardy. 

The holding in Montana Human Rights Division established that there is an actual privacy expectation for those 

who apply for employment positions. They are required. to 

disseminate information about themselves which they expect to 

remain private. The expectation here is actual and not 

subjective. 

The second part of the test is whether society is 

willing to recognize the privacy expectation as reasonah1.e. 

We hold that society does recognize the expectation. 

In the case of both phone logs and criminal investigations, situations arise where the information is of a highly 

personal nature. These instances include cases of sexual 

crimes and domestic crimes where both the victims and their 

families should be protected from public exposure. Association with these investigations is accidental and innocent, 

and the privacy interests of these victims and families must 

he protected from further traumati-c injury. 
The appellant also requested pre-employment 

information. The sheriff properly denied the information 

requested. We have stated that where employment records are 

concerned, 

. . . Calthough] 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 individua1.s involved 

would not wish and in fact did not 

expect to be disclosed. 

Montana Human Rights Division v. City of Billings, 649 P.2d 

at 1287. In Missoulian, we emphasized some of the areas 

which would be on pre-employment and employment files. These 

include family and health problems, employers1 criticisms, 

employees1 criticisms of the employer, interpersonal relationships, and subjective view of employers. These must all 

be protected under constitutional privacy interests. Moreover, if the investigations are confidential, more candidness 

is guaranteed the sheriff's department prior to hiring new 

employees. This is beneficial to the public. 

Section 44-5-103, MCA, specifically declares what 

information can be publicly disseminated. Included in 

"public criminal justice information" are arrest records. 

Section 44-5-103 (12) (e) (ii) , MCA. Initial arrest records are 

not excluded from review by the public when reviewed in 

cooperation with the agency which holds the information 

during normal business hours of the agency. Section 

44-5-301 (2), MCA. Section 44-5-301 (I), MCA, states that all 

information is public with the exception of records or indexes which are "compiled by name or universal identifier from a 

manual or automated system . . ." In these cases, only 
information about convictions, deferred prosecutions, or 

deferred sentences is available to the public. 

There appears to be a distinct conflict between 

SS 44-5-103 and 44-5-301, MCA. Section 44-5-103(12) clearly 

states that arrest records are "public criminal justice 

information." Arrest records are included in a list of 

public information which includes information, (a) made 

public by law; (b) of court records and court proceedings; 

(c) of convictions, deferred sentences, and deferred 

prosecutions; (dl of post-conviction proceedings and status; 

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

initial offense reports, (ii) initial arrest records, (iii) 

hail records, and (iv) daily jail occupancy rosters; (f) 

information considered necessary by a criminal justice agency 

to secure public assistance in the apprehension of a suspect; 

or (g) statistical. information. Section 44-5-103 (14) , MCA, 

specifically states that statistical information which is 

disseminated in the public domain is: 

. . . data derived from records in which 

individuals are not identified or identification is deleted and from which neither individual identity nor any other 

unique characteristic that could identify 

an individual is ascertainable. 

Although 5 44-5-103 specifically regards initial arrest 

records as public criminal justice information, 

S 44-5-301 (1) (a) declares: 

(1) There are no restrictions on the 

dissemination of public criminal justice 

information except for the following: 

(a) Whenever a record or index is compiled by name or universal identifier 

from a manual or automated system, only 

information about convictions, deferred 

prosecutions, or deferred sentences is 

avai.lable to the public. 
It is obvious that any initial arrest record is going to be 

compiled by name of those arrested or by another universal 

identifier, such as a social security number. Therefore, 

under S 44-5-301, the same initial arrest records which are 

allegedly available to the public are also restricted from 

public review because they enter the area of private records 

of individuals. 

There is debate whether the information sought concerning arrest records is more beneficial subject to public 

scrutiny, or whether it should not be available as public 

criminal justice information. Individuals arrested under 

suspicion of committing a crime and who are subsequently 

released without charges or incarceration must he protected 

from public persecution. On the other hand, law enforcement 

must be under the view of the public to deter false arrests 

or possible discriminatory action. 

In construing statutes where general terms and specific 

terms are in conflict, specific intent will be given priority 

over the general term. City of Billings v. Smith (1971), 158 

Mont. 197, 490 P.2d 221; Wymont Tractor and Equipment Co. v. 

Unemployment Compensation Commission of Mont. (1955) , 128 

Mont. 501, 278 P.2d 208. The definitional statute, 

§ 44-5-103, specifically states that arrest records are 

public information. Section 44-5-301 relates to any record 

or index which is compiled by name or universal identifier. 

As to initial arrest records, 5 44-5-103 takes precedent. We 

hold that the initial arrest records are public. 

It is important to keep the right of privacy of individuals in mind here. To prevent unnecessary dissemination 

of private information, appellant will be allowed to view and 

record the information pursuant to S44-5-103 (14) , MCA. 

Section 44-5-103(14) specifically states: 
"Statistical information" means data 

derived from records in which individuals are not identified or identification 

is deleted and from which neither individual identity nor any other unique 

characteristic that could identify an 

individual is ascertainable. 

The purpose of the information sought by appellant can 

be accomplished without dissemination of the names of those 

individuals listed on the initial arrest records. He can 

review and disseminate the information without including the 

names of arrested individuals. 

Privacy rights of individuals in Montana are more 

substantial than the rights guaranteed in the United States 

Constitution. Montana Human Rights Division, 649 P.2d at 

1286. Before this Court will invade the individual privacy 

of the persons involved, a compelling state interest to do so 

must be found. There is no compelling state interest here 

which allows the dissemination of the requested information. 

Appellant wishes to do a study for a school research project; 

this is not a sufficient state interest. 

Section 44-5-303, MCA, states that dissemination of 

confidential criminal justice information is restricted to 

criminal justice agencies or to those authorized by law to 

receive it. Appellant is neither part of a criminal justice 

agency nor authorized to receive the information. 

Section 44-5-304, MCA, allows individuals to have 

access to criminal history record information for the express 

purpose of developing statistical information pursuant to an 

agreement with a criminal justice agency. The information 

may be disseminated according to (a) specific authorization 

of the information; (b) limitation on the use of the information, to research, evaluative, or statistical purposes; (c) 

assurance of confidentiality and security of the information; 
and (d) sanctions for violations of the agreement. Furthermore, pursuant to § 44-5-304(2), MCA, the agreements, research, studies and statistical information gathered from the 

criminal history records is subject to the review and approval by the Department of Justice. The requested arrest 

records are subject to the provisions of § 44-5-304. 

We affirm the finding of the District Court and hold 

that the requested information is beyond the reach of the 

public sector. The information is protected under the Montana Constitution and the Criminal Justice Information Act of 

1979. 

A€ f irmed.