                                         No. 12438

          I N THE SUPREME C U T O THE STATE O M N A A
                           OR    F           F OTN

                                             1973



GAZETTE PRINTING COMPANY,
a c o r p o r a t i o n and STRAND HILLEBOE,

                                 P l a i n t i f f s and A p p e l l a n t s ,
          -VS   -
J. J. CARDEN, A s Chairman and a member
of t h e I n d u s t r i a l Accident Board of t h e
S t a t e of Montana, and SIDNEY T, SMITH and
J. C. CARVER, A s members o f t h e I n d u s t r i a l
Accident Board of t h e S t a t e of Montana, and
t h e INDUSTRIAL ACCIDENT BOARD O T E STATE
                                          F H
O MONTANA,
  F
                              Defendants and Respondents,
          and

SHELDON OLSON,                   Applicant f o r
                                 I n t e r v e n e i o n and Respondent          .
Appeal from:          D i s t r i c t Court of t h e F i r s t J u d i c i a l D i s t r i c t ,
                      Honorable S i d G. Ftewart, Judge p r e s i d i n g .

Counsel of Record:

     For Appellants :

             Moulton, Bellingham, Longo & Mather, B i l l i n g s , Montana
             Bernard W. Longo argued, B i l l i n g s , Montana
             Lawrence W. P e t e r s e n argued, B i l l i n g s , Montana
             Small, Cummins and Hatch, Helena, Montana

     For Respondents :

             K e l l e r , Reynolds and Drake, Helena, Montana
             Paul T. K e l l e r argued, Helena, Montana

     For I n t e r v e n o r :

             Keefer and Roybal, B i l l i n g s , Montana
             N e i l S. Keefer argued, B i l l i n g s , Montana

             Amicus Curiae          -
             Hon. Robert L. Woodahl, Attorney General, Helena, Montana
             John P. Connor, A s s i s t a n t Attorney General, argued,
              Helena, Montana


                                                       Submitted : November 28, 1973


Filed :    DEC 2 6 B
                   9n
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 re-
fused.   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 requir-
ing defendants to give plaintiffs access to public records.     Sec-
tion 92-809, R.C.M. provides that information supplied by em-
ployers and insurers shall be confidential.
          After depositions had been taken and answers to inter-
rogatories had been filed, defendants moved for summary judg-
ment, 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 judg-
ment 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 perform-
          ance 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 con-
fidential 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 prin-
ciple 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 de-
fendants 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 en-
titled 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 in-
formation, 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 exam-
ination 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 confi-
dential 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 per-
tinent 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 i n t e r r o g a t o r i e s c a n be c o n s i d e r e d o n l y t o t h e e x t e n t t h a t

they contain admissible evidence.                           6 Moore's F e d e r a l P r a c t i c e ,

11 5 6 . 1 1 ( 4 ) , p.    2 1 9 1 ; Roucher v . T r a d e r s      &   General Insurance

Company, 235 F.2d 423.

                   P a r o l e v i d e n c e of t h e c o n t e n t s of p u b l i c r e c o r d s

v ~ o l a t e st h e b e s t e v i d e n c e r u l e and i s i n a d m i s s i b l e .     29 Am J u r

2 d , Evidence, Sec. 482, p . 541; 32A C.J.S.                            Evidence 6 8 0 4 , p.

137.

                   There was i n s u f f i c i e n t competent e v i d e n c e f o r t h e

c o u r t ' s c o n s i d e r a t i o n i n g r a n t i n g t h e motion f o r summary judgment.

I f t h e r e c o r d i s i n a d e q u a t e , a motion f o r summary judgment must

be d e n i e d .      American S e c u r i t Company v . Hamilton G l a s s Company,

254 F.2d 889.

                   The burden of showing t h e a b s e n c e of a g e n u i n e i s s u e

of m a t e r i a l f a c t i s on t h e movant.              Byrne v . P l a n t e , 154 Mont.

6 , 459 P.2d 266.              T h a t burden h a s n o t been met h e r e .

                   W e f e e l it i s p r o p e r h e r e t o make some o b s e r v a t i o n s .

Wlth l i t e r a l l y t h o u s a n d s of c a s e f i l e s , e x t e n d i n g o v e r many y e a r s ,

~t seems o b v i o u s t h a t f o r a s i n g l e l i t i g a n t such a s p l a i n t i f f

h e r e t o make a b r o a d c a s t s e a r c h and r e q u i r e p e r h a p s numerous

s t a t e employees t o examine i n t o t h e f i l e s , may c r e a t e a n undue

burden upon s t a t e government; b u t t h e d i s t r i c t c o u r t h a s t h e

power under t h e r u l e s by a p p o i n t i n g commissioners, i f need b e ,

o r i n some o t h e r manner a s c e r t a i n i n g a r e a s o n a b l e method of i n -

spection during a reasonable period t o provide t h e information

desired.

                   I t f u r t h e r a p p e a r s from t h e answers t o t h e i n t e r r o g -

a c o r i e s t h a t t h e method of r e c o r d k e e p i n g by t h e I n d u s t r i a l

A c c i d e n t Board i s s u c h t h a t l e g a l l y c o n f i d e n t i a l m a t e r i a l      and

nonconfidential m a t e r i a l i s intermingled, perhaps i n a d v e r t l y o r

deliberately.              But, w h i l e t h i s may c r e a t e d i f f i c u l t problems of
exa~ninationand 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 in-
structions to vacate, set aside and hold for naught its order and
for further proceedings not inconsistent with this opinion.
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                                 Hon. Bernard W. Thomas, district
                                 judge, sitting in place of Mr. Jus-
                                 tice Frank I. Haswell.
