                                   No. 89-86
                IN THE SUPREME COURT OF THE STATE OF MONTANA

                                     1989



GREAT FALLS TRIBUNE COMPANY, INC.,                                                                             .,
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CASCADE COUNTY SHERIFF, BARRY MICHELOTTI,                                                                        c)
and CITY OF GREAT FALLS, a Municipal corp.,                                                                         -+--J
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                 Respondents and Appellants.                                                                          \--'
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APPEAL FROM:     ~istrictCourt of the Eighth ~udicial~istrict,
                 In and for the County of Cascade,
                 The Honorable Thomas ~ c ~ i t t r i c k ,
                                                         Judge presiding.
COUNSEL OF RECORD:
         For Appellant:
                 David V. ~ l i k o ,City Attorney, Great Falls, Montana
         For Respondent:
                 Peter Michael Meloy, Helena, Montana


                                     Submitted on Briefs:     May 18, 1989
                                       Decided:     July 6, 1989
Filed:


                                     Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
      The City of Great Falls appeals from an order of the
District Court for the Eighth ~udicial ~istrict, Cascade
County, that the City must publicly disclose the names of
three law enforcement officers disciplined as the result of a
November 30, 1988, incident. We affirm.
      The issue is whether the privacy rights of the individ-
ual police officers exceed the merits of public disclosure of
the names of the officers in the Great Falls Tribune.
      On November 30, 1988, certain police officers and
deputies from the Cascade County Sheriff's Office engaged in
a high-speed automobile chase through the City of Great Falls
in an attempt to apprehend a suspect. The suspect left his
car and continued his flight on foot.       A deputy sheriff
attempting to stop the suspect ran his squad car up on a city
sidewalk and struck the suspect.
      When the suspect was taken to jail, a jailer noticed
that the suspect had suffered injuries to his head and face.
The jailer brought the injuries to the attention of the
sheriff and an investigation followed.
      As a result of the investigation, a sheriff Is deputy
was suspended for a period of time, one police officer was
fired, and two other police officers were given the option to
resign or be terminated. They resigned. A reporter from the
Great Falls Tribune (~ribune)had been given access to an
"initial offense report" which contained the names of a
number of officers involved in the incident without specify-
ing how they were involved. He attempted to obtain the names
of the officers disciplined. The reporter asked the Cascade
County Sheriff, the Great Falls city police chief, and the
Great Falls City Manager for the names of the officers disci-
plined, but all three refused to disclose the names on the
grounds of the officers' right to privacy.
      The Tribune filed a petition in District Court seeking
an order directing the defendants to release the names of the
law enforcement officers who had been disciplined. The City
of Great Falls (City) moved to dismiss and filed an answer
asserting the individual officers' right to privacy under
Article 11, Section 10 of the Montana Constitution.       The
court held a hearing at which two witnesses for the Tribune
testified.   The City did not call witnesses but filed an
affidavit by the Police Chief which was entered by
stipulation as part of the record.
      On January 17, 1989, the District Court issued its
opinion and order directing the City to disclose the identity
of the officers who were disciplined. The court noted that
the Cascade County Sheriff had disclosed the name of the
deputy sheriff to the Tribune and had been dismissed from the
lawsuit.
      In analyzing the issue before it, the District Court
conducted a balancing of two rights guaranteed under the
Montana Constitution. The right to know is set forth at Art.
11, Section 9, Mont.Const.:
           Section 9.   Right to know.    No person
           shall be deprived of the right to exam-
           ine documents or to observe the deliber-
           ations of all public bodies or agencies
           of state government and its subdivi-
           sions, except in cases in which the
           demand of individual privacy clearly
           exceeds the merits of public disclosure.
The right of privacy is set forth at Art. 11, Section 10,
Mont.Const.:
            Section 10.    Right of privacy.     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 compelling state interest.
The court determined that "the demands of individual privacy
as shown on this record do not clearly exceed the merits of
public disclosure."    It ordered the City to provide the
Tribune with the names of the officers disciplined as a
result of the November 30th incident, along with information
on which officers were terminated and resigned.
      Before conducting our analysis, we will review recent
cases in which this Court has been asked to balance the right
of privacy against the right to know.
      This Court has used a two-part test in determining
whether a person has a constitutionally-protected privacy
interest.   Montana Human Rights Div. v. City of Billings
(1982), 199 Mont. 434, 442, 649 P.2d 1283, 1287. First, we
determine whether the person has a subjective or actual
expectation of privacy. Next, we evaluate whether society is
willing to recognize that expectation as reasonable.       In
Human Rights, the issue was whether the Human Rights Division
had the authority to subpoena employment records of employees
other than the employee who was accusing the employer of
discrimination. The Court concluded that the other employees
had a high expectation of privacy worthy of protection under
Art. 11, section 10, Mont.Const., since their files presum-
ably contained sensitive information.     his Court next bal-
anced the right of privacy of the other employees against the
State's interest in prohibiting employment discrimination,
using as its standard whether there was a compelling state
interest which overrode the right to individual privacy.
Human ~ i g h t s ,649 P.2d at 1288. his Court concluded that
the State had a compelling interest. The Court ordered that
the information sought by the Human Rights Division must be
released, but that a protective order must also issue to
prevent release of names of the other employees outside of
the investigating agency.
       In Missoulian v. Board of Regents of Higher Educ.
 (1984), 207 Mont. 513, 675 P.2d 962, this Court was asked to
balance the public right to know about the performance of a
university president against the president's expectation of
privacy in job performance evaluations.     After determining
that the university president had a constitutionally-
protected privacy interest, the Court used as its standard
the Art. 11, Section 9, Mont.Const., test of whether the
demand of individual privacy clearly exceeded the merits of
public disclosure. Missoulian, 675 P.2d at 970. The Court
ruled that closed job performance evaluations were justified
because the individual privacy interest of the university
president clearly exceeded the public's right to know.
Missoulian, 675 P.2d at 973.
       In Belth v. Bennett (Mont. 1987), 740 P.2d 638, 44
St.Rep. 1133, the balance was between insurance companies'
privacy interests in national regulatory reports on them and
the public's right to disclosure of the reports. The Court
first determined that the insurance companies had a
constitutionally-protected privacy interest. The Court then
stated the balancing test as whether the demand of individual
privacy clearly exceeded the merits of public disclosure.
Belth, 740 P.2d at 641. Because the Court found that there
were ways other than reviewing the reports to obtain similar
information about insurance companies' performance and finan-
cial status, and because the reports had been represented to
the insurance companies as confidential during data gather-
ing, the Court affirmed the ~istrictCourt in denying release
of the requested information.
       In Engrav v. Cragun (Mont. 1989), 769 P.2d 1224, 46
St.Rep. 344, we weighed the public right to know about county
law enforcement operations, as represented by appellant's
desire to do a school research project, against the privacy
interest of persons named in daily logs of telephone calls,
case files of criminal investigations, pre-employment inves-
tigation reports, and a list of persons arrested. We deter-
mined that the individuals whose names would be disclosed by
release of the information had an actual expectation of
privacy which society recognized and that this privacy inter-
est outweighed the appellant's right to do a study for his
school research project. We stated that no compelling state
interest justified invading the privacy of the individuals
affected. Engrav, 769 P.2d at 1229.
      In the present case, the ~istrictCourt declared that
"it is not good public policy to recognize an expectation of
privacy in protecting the identity of a law enforcement
officer whose conduct is sufficiently reprehensible to merit
discipline." We agree. The law enforcement officers in the
present case may have had a subjective or actual expectation
of privacy relating to the disciplinary proceedings against
them. However, law enforcement officers occupy positions of
great public trust. Whatever privacy interest the officers
have in the release of their names as having been disci-
plined, it is not one which society recognizes as a strong
right.
      On the other hand, the public has a right to know when
law enforcement officers act in such a manner as to be sub-
ject to disciplinary action. The public health, safety, and
welfare are closely tied to an honest police force.       The
conduct of our law enforcement officers is a sensitive matter
so that if they engage in conduct resulting in discipline for
misconduct in the line of duty, the public should know. We
conclude that the public's right to know in this situation
represents a compelling state interest.
     When we balance the limited privacy interest of the law
enforcement officers against the public's right to know which
officers have been disciplined for unlawful acts, we conclude
that the ~istrictCourt was correct. The privacy interest of
the officers does not clearly exceed the public's right to
know. We note that we are not ruling that the entirety of
any personnel files must be revealed.     The ~istrict Court
ordered only the release of the names of the officer who was
terminated and those who resigned.
      Affirmed.




We concur:
