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 theThird JudicialDistrict, In and for theCounty 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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# "" !Y Submitted: Dec. 9, 1989 Decided: February 27, 1989

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ClerkMr. 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,denyinghis 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 listsand investigation reportsheld a riqht ofprivacvwhich outweighed the public right toknow. The issue on appeal is: Whether the District Court properlv denied the plaintiff access to the requested informationon the grounds that the right ofprivacy of the individualsoutweighed thepublic 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. Thesewere:



### (1)daily log of telephone calls, (2) case files of criminal investigations, (3)pre-employment investigationreports,and (4)a list ofpersons 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 importantbecause:Without access to case filesof 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 hiringpolicies or thequality 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 requestsby Engrav. The issue iswhether the DistrictCourtproperly 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 shallbe 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 individualprivacy clearly exceeds themerits ofpublic 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 conventionwas in enacting an articlewhich 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 intendsby this provision that the right to know 

### - not be absolute. The rightof individual privacy is tobe 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. 

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# .. 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 thedelegates,since adopting the original Montana Constitution,the righthad 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 individualprivacy, includingwire taps,bugging devices,photo surveillanceand computerized databanks. Appellant declares that § 2-6-102,MCA, is the standard for the public right to know. It states that "everycitizen has a right to inspectand take a copy of anypublic writings of this state." Respondent argues that the governing statutes are within the Montana Criminal Justice InformationAct 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 informationcollection,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 theperson involvedhad a subjective or actual expectation of privacy. The second iswhether society iswilling to recognize that expectationas reasonable. In applying the test inMontana Human RightsDivision,we held that therewas
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 Commissionwas not to divul.aeany of

### the information to outside sources. The only instance in which the Commission could do so was if it decided that a public hearingwas 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 expectationwas reasonable. This Court agreed with the Board. The evaluations were self-evaluationsand evaluations by Board members. Itwas 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 employeesorpresidentsh!: 

### those who dislike the individuals. In applving the two-part test to the case at bar, we must first decide whether thepersons involvedhave a suhjective or actual expectation ofprivacy. 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-esin 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 cannotpermit 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,ifmade public,would put the lives of thesepeople and the investigation in jeopardy. The holding in Montana Human Rights Division established that there is an actualprivacy 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 societydoes 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 frompublic exposure. Association with these investigations is accidental and innocent, and the privacy interestsof these victims and familiesmust he

### protected from further traumati-cinjury.The appellant also requested pre-employment information. The sheriff properly denied the information requested. We have stated thatwhere employment records are concerned,



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# . Calthough] we are aware that much of the information contained in employment filesand records isharmlessor 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 tobe disclosed.

Montana Human Rights Division v. City of Billings, 649 P.2d at 1287. In Missoulian, we emphasized some of the areas whichwould be onpre-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 isbeneficial to thepublic. 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. Initialarrest recordsare 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 informationis public with the exception of records or indexeswhich are "compiledby name or universal identifier froma manual or automated system 

# ..." In these cases, onlyinformation about convictions, deferred prosecutions, or deferred sentences is available to thepublic. 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) informationconsidered necessaryby a criminal justice agency to securepublic assistance in the apprehensionof a suspect;

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

## , MCA, specifically states that statistical information which is disseminated in thepublic domain is:



# . .. data derived from records in which individualsare 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.lableto thepublic.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 reviewbecause they enter the area of private records of individuals. There isdebatewhether 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

orpossible discriminatory action. Inconstruing statutes where general termsand specific terms are in conflict, specific intentwill be givenpriority over the general term. City of Billingsv. 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 takesprecedent. We hold that the initial arrest records arepublic. It is important to keep the right of privacy of individuals in mind here. To prevent unnecessary dissemination ofprivate information,appellantwillbe allowed toview 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 fromwhich neither individual identity nor any other unique characteristic that could identify an individual is ascertainable.
The purpose of the information soughtby 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 individualprivacy of the persons involved,a compelling state interest todo 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 criminalhistory 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)

assuranceof confidentialityand security of the information;and (d) sanctions for violations of the agreement. Furthermore, pursuant to § 44-5-304(2), MCA, the agreements, research, studiesand statistical informationgathered from the criminalhistory records is subject to the reviewand approval by the Department of Justice. The requested arrest records are subject to theprovisions 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€ 

### firmed.