                                                                                             March 31 2015


                                            DA 14-0473
                                                                                         Case Number: DA 14-0473

                   IN THE SUPREME COURT OF THE STATE OF MONTANA

                                            2015 MT 95


IN RE PETITION OF MISSOULA COUNTY
PUBLIC SCHOOLS, MISSOULA, COUNTY,

               Petitioner and Appellee,

         v.

BITTERROOT STAR, MISSOULA INDEPENDENT, KECI,

               Respondents and Appellees,

         and

VALARIE ADDIS,

               Respondent and Appellant.


APPEAL FROM:            District Court of the Fourth Judicial District,
                        In and For the County of Missoula, Cause No. DV-14-151
                        Honorable Karen S. Townsend, Presiding Judge

COUNSEL OF RECORD:

                 For Appellant:

                        Robert C. Myers, Montana Resources and Asset Protection PC,
                        Hamilton, Montana

                 For Appellee Missoula County Public Schools:

                        Elizabeth A. Kaleva, Megan D. Morris, Kaleva Law Office,
                        Missoula, Montana

                 For Media Appellees:

                        Peter Michael Meloy, Meloy Law Firm, Helena, Montana


                                                    Submitted on Briefs: February 25, 2015
                                                               Decided: March 31, 2015

Filed:

                        __________________________________________
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1     Valerie Addis appeals from the District Court’s Order and Memorandum filed July

18, 2014. We affirm.

                                    BACKGROUND

¶2     Addis was formerly employed as supervisor of food services by the Missoula

County Public Schools (Schools), a public school district and a political subdivision of

the State of Montana.     During her employment in 2010 the Schools conducted an

investigation of Addis and whether she had engaged in fraudulent or illegal financial

transactions. Following that investigation the Schools instituted disciplinary action.

Addis left the Schools position and filed a wrongful discharge suit.

¶3     The Ravalli County Commission appointed her to serve as Ravalli County

Treasurer. Subsequently, the Ravalli County Commission investigated irregularities in

Addis’ performance as Treasurer and imposed sanctions against her.

¶4     In January 2014 the respondent media organizations, the Bitterroot Star and

Missoula Independent (weekly newspapers) and KECI (a television station) requested

that the Schools release documents related to Addis’ termination as food services

director, and particularly records concerning the investigation of fraudulent or illegal

activity. The Schools notified Addis; she asserted that she had a right to privacy in the

documents and that they should not be released. The Schools released Addis’ resignation

letter and separation agreement and, in February 2014, commenced the present action in

District Court. The Schools sought an in camera review of the Addis documents and a


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determination as to whether they should be released. The Schools took no position on the

release of the documents and stated that they had filed the petition to avoid being sued by

either the media outlets or Addis. The media outlets counterclaimed that the Schools

violated their rights by not immediately releasing all of the documents.

¶5     The media outlets moved for summary judgment, seeking an order that the

Schools release the documents. Addis appeared by brief, contesting the release of the

records. The District Court conducted an in camera examination of the Schools’ records

and concluded that Addis had a right of privacy in some of them and that those

documents should not be released. However, the District Court determined that six

documents that related to “misuse of public money, misuse of public facilities, and

careless management practices” should be released. The District Court found that the

Schools had acted prudently in filing the action, and granted summary judgment to the

Schools on the media outlets’ counterclaim. Addis appeals.

                               STANDARD OF REVIEW

¶6     This Court reviews a district court’s decision on summary judgment to determine

whether it is correct, using the same criteria under Rule 56, M. R. Civ. P. Pilgeram v.

GreenPoint Mortgage, 2013 MT 354, ¶ 9, 373 Mont. 1, 313 P.3d 839.

                                      DISCUSSION

¶7     Addis contends that the District Court erred by either not determining or failing to

give sufficient consideration to whether the documents in question are documents of a

public body subject to public inspection. She contends that any documents found in her

personnel file are not public records and are not subject to disclosure.

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¶8    The Montana Constitution, Article II, Section 9, provides that “[n]o person shall

be deprived of the right to examine documents . . . 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.” “Public writings” are defined in

§ 2-6-101(2), MCA, but the range of documents that are held by public bodies and that

are subject to disclosure under the Constitution is broader. Bryan v. Yellowstone County

Elem. School Dist., 2002 MT 264, ¶¶ 34-35, 312 Mont. 257, 60 P.3d 381. The Schools

are clearly a public body for purposes of the constitutional right to know. Becky v.

Butte-Silver Bow School District No. 1, 274 Mont. 131, 136-37, 906 P.2d 193, 197

(1996). There is no blanket exemption from the right to know for documents simply

because they are contained in a personnel file. Billings Gazette v. Billings, 2011 MT 293,

¶¶ 23-24, 362 Mont. 522, 267 P.3d 11. We find no merit in Addis’ argument.

¶9    We concur with the District Court’s determination that the Schools followed a

prudent course in this matter. The Schools initiated a proceeding asking the District

Court to conduct an in camera review of the documents sought by the media, when both

the entities seeking the documents and the individual who was the subject of the

documents invoked important constitutional rights.

¶10   In the case of criminal records that may contain confidential criminal justice

information, § 44-5-303(5), MCA, provides that a prosecutor may initiate a declaratory

judgment action requesting an in camera review of the records and may ask the court to

determine whether the demands of individual privacy exceed the merits of public

disclosure. We agree that the initiation of a similar proceeding in this case seeking a

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judicial determination regarding the release of personnel records in a non-criminal case

was an appropriate process for the Schools to invoke to resolve the request by the media.

We affirm the District Court’s exercise of its discretion in this matter, reviewing the

disputed documents and determining which should be released after balancing the

demand for individual privacy against the merits of public disclosure.

¶11    In a situation like this, balancing the public’s right to know with an individual’s

right to privacy requires a fact-specific analysis of the interests at stake to determine

whether the demands of individual privacy exceed the merits of public disclosure.

Billings Gazette v. City of Billings, 2013 MT 334, ¶¶ 14-15, 372 Mont. 409, 313 P.3d

129.   The court must consider whether the individual has a subjective or actual

expectation of privacy, and if so whether society should recognize that the expectation is

reasonable. Havre Daily News v. City of Havre, 2006 MT 215, ¶ 23, 333 Mont. 331, 142

P.3d 864. Documents are not shielded from public disclosure simply because they are in

a public official’s personnel file when that official occupies a position of trust. Billings

Gazette, ¶ 22 (2011) (investigation report alleging that a police department clerk

misappropriated funds should be released because the clerk occupied a position of trust).

¶12    The District Court applied settled Montana law in reviewing the disputed

documents, concluding that Addis had an actual or subjective expectation of privacy in

some of the records in her personnel file. Those included information in the employment

application, a medical evaluation, beneficiary designation forms and “other benign

information that has no relationship to the investigation of misconduct.” As to the

records pertaining to the investigation of misconduct, the District Court found that they

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concerned misuse of public money, misuse of public facilities and careless management

practices. The District Court found that Addis’ position as supervisor of food services

was “one of public trust because she was responsible for the expenditure of public

money.” Finally, the District Court concluded that Addis could have no reasonable

expectation of privacy in documents relating to a violation of public trust, citing the

similarities to the 2011 Billings Gazette case involving the clerk at the police department.

¶13    Under the facts of this case, the District Court determined that Addis did not have

a protectable privacy interest in the investigatory documents, and that any privacy interest

she had was outweighed by her position involving the public trust. The District Court

determined that “the public has a compelling and substantial interest in investigatory

documents concerning the misuse and misappropriation of public funds.”

¶14    The District Court conscientiously and correctly determined and applied Montana

law, and properly determined that the six disputed documents should be released. Addis

has not presented a substantial reason in fact or law to demonstrate that the District

Court’s decision was error.

¶15    Affirmed.


                                                 /S/ MIKE McGRATH

We Concur:

/S/ MICHAEL E WHEAT
/S/ JAMES JEREMIAH SHEA
/S/ PATRICIA COTTER
/S/ JIM RICE



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