NEWS MEDIA UPDATE · MONTANA · Freedom of Information · Dec. 15, 2006
High court refuses newspaper’s request for legal fees
Dec. 15, 2006 · The Montana Supreme Court this week rejected a newspaper’s request to recoup attorney fees for its court fight to obtain the disciplinary records of two teachers accused of sexual activity at a high school.
In its Tuesday decision, the high court also declined to review the merits of a lower court’s decision that the documents were public records, saying the issue was moot because the documents already had been released.
In 2004, The Billings (Mont.) Gazette requested the teachers’ disciplinary records and documents related to the investigation of the incident. The teachers asserted a privacy right, and the school district asked a trial court which documents should be made public.
That judge sided with the newspaper, saying the teachers had no reasonable expectation of privacy and even if they did, it would be overcome by the public’s right to know.
The documents were subsequently released to the Gazette, but the teachers and their union appealed, saying the Supreme Court should review the lower court’s decision because the case presented questions that could arise again.
The high court dismissed that idea and said the teachers and union had not taken the necessary steps at the lower court level to preserve the issue for an appeal.
The majority said, however, that the Gazette could not recover attorney fees because fees are only allowed for a “plaintiff who prevails” in court, and the newspaper was not a plaintiff.
Justice Brian Morris, joined by another justice, wrote separately to say that a government body cannot shield itself from paying fees by taking the matter to court, as the school district did in this case.
Two other justices dissented on the issue of attorney fees, saying the school district should have known “from the outset” that the public’s right to know outweighed any privacy concerns.
“Here, a student allegedly walked into an unlocked room between the locker rooms at the high school and encountered one teacher on top of the other with one of the teacher’s bare buttocks showing,” Justice James C. Nelson wrote. “For the teachers involved and the School District to even entertain the idea that the teachers retained a subjective privacy interest … is patently ridiculous.”
Nelson said the majority’s refusal to award attorney fees “encourages governmental entities to continue to play hide-the-ball when a newspaper requests public documents to which the media is constitutionally entitled.”
(Billings High School District No. 2 v. The Billings Gazette, Media Counsel: Martha Sheehy, Sheehy Law Firm, Billings, Mont.) — RG