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With new ruling, newspaper gains access to old document

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NEWS MEDIA UPDATE   ·   MONTANA   ·   Freedom of Information   ·   Sep. 12, 2006

NEWS MEDIA UPDATE   ·   MONTANA   ·   Freedom of Information   ·   Sep. 12, 2006

With new ruling, newspaper gains access to old document

  • The state Supreme Court ruled that a lower court improperly redacted entire pages from a public document when blocking names was sufficient to protect privacy interests.

Sep. 12, 2006  ·   A state district court in Montana improperly redacted information from a deposition before turning it over to a local newspaper, the state Supreme Court ruled last week, granting the Billings Gazette access to a document it has sought for three years.

Under the “right to know” provision of the Montana Constitution, only the names of private third parties need be redacted from sensitive public documents before being released to the press, the court said. The lower court had improperly redacted the entire contents of five deposition pages in an effort to protect the privacy interests of the people who were discussed.

“[T]he public’s right to access [the] deposition clearly outweighs any privacy interest [that] might otherwise be assert[ed] in this material,” Justice Patricia Cotter wrote for the court.

The decision was a victory for the Billings Gazette, which had sought a copy of the deposition while gathering information related to an ongoing legal dispute between Yellowstone County’s chief public defender and his deputy. That dispute grabbed headlines three years ago when the chief fired the deputy, who subsequently filed a human rights complaint against the county and a federal discrimination lawsuit against the chief.

The deposition was part of a larger request served on the county three years ago by reporters for the Gazette pursuant to the state’s Public Records Act. According to Martha Sheehy, counsel for the newspaper, county officials resisted releasing the complete contents of the deposition out of fear of infringing on the privacy rights of the people named in the deposition, who were not involved in the lawsuit. Those privacy rights, like the “right to know,” are protected by the Montana Constitution, Sheehy said.

The Supreme Court emphasized that the text of the constitution clearly states that in so-called “right to know” cases, information will be withheld from the public only if the demand of individual privacy “clearly exceeds” the benefits of public disclosure.

“I got the impression that the reason these materials were redacted was because they were embarrassing – that is clearly not the standard,” Sheehy said. “Embarassing is not the same as being a right to privacy.”

The tension between the “right to know” and the “right to privacy” is an often-litigated one in Montana, Sheehy said. The rights are defined broadly in the constitution and state law outlines a relatively straightforward framework to help guide public officials in how to ensure that both rights are protected, Sheehy said.

In fact, it was the county, following those statutory procedures, that first went to court in this case to determine what information it was allowed to disclose to the Gazette. Thus, the Supreme Court was technically overturning the lower court judge’s decision to redact entire pages of information instead of just the third parties’ names.

Sheehy said during initial negotiations prior to the lawsuit, the Gazette agreed that the names – but only the names –should be redacted from the deposition, which is precisely the result the Supreme Court ordered last week. Unfortunately for the Gazette, the county would not agree and instead initiated the lengthy lawsuit, rendering the news value of the now public deposition stale.

“Sometimes the delay renders the right to know meaningless,” Sheehy said.

In his strongly worded concurring opinion, Supreme Court Justice James C. Nelson wrote that in cases such as this, the government officials are constitutionally compelled to presume disclosure over costly and time-consuming litigation.

“It is wholly unacceptable that the media and public are . . . met with intransigence, stalling tactics, and delay, and are ultimately forced to litigate to obtain public documents to which they are constitutionally — and presumptively — entitled,” Nelson wrote.

Though the decision won’t make for gripping headlines in Billings like it might have three years ago, Sheehy said she is glad to have a precedent on the books that should make future disclosures of public documents containing private information go more smoothly.

“While the actual content itself may be old news at best, the decision is incredibly timely because it is the first decision to say if there are privacy interests, they can be handled in this redaction process,” Sheehy said.

(Yellowstone v. Billings Gazette; Media counsel: Martha Sheehy, Sheehy Law Firm, Billings, Mont.)NW

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