Mont. supreme court orders release of investigation letter

The Montana Supreme Court ruled 4-3 that the city of Billings must release an internal investigation letter issued to a police department employee who allegedly made personal purchases on a department credit card.

The court rejected the city’s argument that Deanna Anthony, as an administrative coordinator, rather than “a sworn officer or an elected official,” had an expectation of privacy in the letter. Instead, the court held that she had no right to privacy in a letter related to the investigation of potential misconduct in her position – one that was authorized to purchase department supplies with public money.

When the allegations against Anthony arose in 2010, the department conducted an internal investigation, at the completion of which the Billings Gazette requested a 16-page “due process” letter describing the evidence gathered and notifying Anthony of her opportunity to respond to the allegations.

The city – citing its concern that releasing the letter could taint the ongoing criminal investigation or related proceedings – refused to release it, prompting the Billings Gazette to file suit.

The district court held – and the court affirmed – that as the letter could not be used in criminal proceedings against Anthony, this argument would not bar the letter’s release.

However, the city also argued against release based on a state constitutional provision that provides for the public’s right to view public documents, except in cases where “the demand of individual privacy clearly exceeds the merits of public disclosure.”

In balancing these two considerations – Anthony’s privacy and the public’s right to know – the court considered whether she had an actual expectation of privacy in the letter and, if so, whether such an expectation was objectively reasonable.

The three members of the primary opinion believed she could, by virtue of her “position of trust,” have no actual expectation of privacy in the letter, despite the city’s argument that she was not the type of “sworn” or “elected” employee who occupied such a position.

“At the oral argument, Mr. Justice Nelson said, ‘Where do you think the [district] court was wrong?’” said deputy city attorney John Addy. “I said, ‘Well, frankly, judge, I’m surprised to be standing here having to argue that a clerical employee is in a position of trust as the court has defined it in the past.”

Justice Patricia O’Connor, writing for three members of the court, disagreed.

“[Anthony] was being investigated for allegations that she misappropriated public funds,” said O’Connor in her opinion, “which is the very aspect of her job that renders it a ‘position of trust.’”

Chief Justice Mike McGrath, in his concurrence, agreed that in Anthony’s case, she did not have an objective privacy interest in a document related to allegations of her embezzlement of public funds.

However, McGrath argued that the controlling opinion was wrong in “automatically” placing Anthony in “a position of public trust” because her job involved spending public money.

“This Court should not endorse an analysis that is mechanical and rigid and thereby undermine the necessity to balance each case individually,” said McGrath.

McGrath also said Anthony could have had an actual expectation of privacy because, during the police captain’s interviews with Anthony, he issued a Garrity warning – named after a U.S. Supreme Court case – saying “that she did not have the right to remain silent, but that nothing she said could be used against her in a criminal proceeding.”

The three dissenting judges also relied on this last argument, arguing the warnings gave Anthony a reasonable privacy interest in the letter, which the dissent considered to be a confidential personnel document.

“The character of the documents at issue should control the outcome of the balancing test rather than the position of the character whom the report documents in those circumstances,” said Justice Brian Morris, writing for the dissent.

Billings Gazette editor Steve Prosinski said he was pleased with the result, as the letter “went to the heart of the public’s right to know.”

The case has been sent back to the district court so that third party interviewees’ identities can be redacted from the letter prior to its release. Addy said the criminal investigation has been completed as well, and the case has now been assigned to a prosecutor, who will then decide whether to press charges against Anthony.