IN THE SUPREME COURT OF THE STATE OF MONTANA
MONTANA HUMAN RIGHTS DIVISION,
Petitioner and Appellant,
v.
CITY OF BILLINGS, COUNTY OF YELLOWSTONE,
Respondent and Respondent.
O R D E R
The first paragraph of the opinion is amended to read,
"The Montana Human Rights Commission,
acting through its staff, the Montana Human
Rights Division (herein referred to as HRC),
appeals from summary judgment and a final
judgment of dismissal in the Thirteenth
Judicial District Court. We vacate the
judgment and remand the cause for further
action by the District Court."
DATED this & & a
&dy of September, 1982.
For the Court
%a*% Chief ~ustice
NO. 81-453
I N THE SUPREME COURT O F THE STATE O F M N A A
OTN
1982
M N A A HUMAN RIGHTS DIVISION,
OTN
P e t i t i o n e r and A p p e l l a n t ,
VS.
CITY O BILLINGS,
F
R e s p o n d e n t and R e s p o n d e n t .
Appeal from: D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e County of Y e l l o w s t o n e
Honorable Diane G. Barz, Judge p r e s i d i n g .
C o u n s e l o f Record:
For Appellant:
F r e d e r i c k F. Sherwood a r g u e d , H e l e n a , Montana
For Respondent:
McNamer, Thompson and Cashmore, B i l l i n g s , Montana
C h a r l e s Cashmore a r g u e d , B i l l i n g s , Montana
K . D. P e t e r s o n a r g u e d , C i t y A t t o r n e y , B i l l i n g s , Montana
Submitted: May 20, 1982
Decided: August 1 6 , 1982
Filed: A e j G I L : j ;982
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
The Montana Human Rights Commission (HRC) appeals from
summary judgment and a final judgment of dismissal in the
Thirteenth Judicial District Court, in this employment
discrimination action. We vacate the judgment and remand
the cause for further action by the District Court.
The sole issue before this Court is whether, as a
matter of law, the HRC may, as part of its investigation of
a discrimination complaint, require an employer to submit
certain evidence relating to persons other than the com-
plainants.
Four persons filed discrimination complaints with the
HRC against the City of Billings. William Wong alleged that
he was discriminated against because of his Chinese ancestry,
in his bid for promotion to Sergeant with the Billings
Police Department. Jerry Klundt charged that he had been
denied merit or step increases and had been demoted because
of his Crow Indian background and in retaliation for union
activities and for having filed a charge of discrimination.
Win Poynter alleged that she had been passed over for promo-
tion at Billings' Logan International Airport because of her
sex, and jobs for which she was qualified had been filled by
less qualified male applicants. Jesse Gonzales (who has
since withdrawn his complaint) alleged that he was denied
a five-year pay increase as a civilian employee of the
Billings Fire Department and assigned undesirable shifts
despite his seniority because of his sex and his Mexican-
American background.
During its investigation of these complaints, the HRC
submitted a supplemental interrogatory to the city of
Billings, requesting personnel files, employee evaluations,
disciplinary records, test scores and application materials
for complainants and certain other employees and applicants
for employment with the City of Billings. When the City did
not comply with the HRC1s request, the HRC issued subpoenas
duces tecum, pursuant to section 49-2-203, MCA, demanding
the information. The City answered that it "would not
voluntarily turn over to [the HRC] the personnel files and
test scores for the individuals requested other than the
charging parties without consent of the persons that are the
subjects of the personnel files unless of course there was a
court order directing us to do so."
On March 12, 1981, the HRC filed a petition with the
District Court, for enforcement of the subpoenas duces
tecum, against the City of Billings. The City responded
that the information sought by the HRC is personal, and
releasing it without prior consent of the individuals in-
volved "may constitute an invasion of those persons' privacy
and may render the City liable for that invasion."
By stipulation, filed June 17, 1981, the parties agreed
to the consolidation of the HRC's action against the City of
Billings with a pending action by the HRC against the County
of Yellowstone. Katherine Webster had filed a complaint
with the HRC, alleging that she was discriminated against in
hiring by the Yellowstone County Sheriff's Department on the
basis of her sex, race, and marital status. Like the City,
the County had refused to produce employment applications
and other information pertaining to the other individuals
who had applied for the position(s) for which Ms. Webster
had applied.
On August 7, 1981, after a July hearing on the matter,
the District Court denied the HRC's motion for summary
judgment, and granted the motion of the City and County for
summary judgment. The accompanying memorandum of the Dis-
trict Court indicated the court's determination that (1) the
disputed information is subject to the protection of Article
11, Section 10, Mont. Const.; (2) respondents are not in a
position to provide the information without the consent of
the individuals whose right of privacy is affected; and (3)
the HRC had shown neither a compelling state interest in
obtaining the information, nor exhaustion of other sources
of obtaining the information. The District Court entered
its judgment of dismissal in favor of the City and County on
September 28, 1981. The HRC appeals.
The complainants have filed complaints with the Federal
Equal Employment Opportunity Commission alleging that respon-
dents' actions violated Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. 2000 et seq. That Commission,
pursuant to section 706 of Title VII, is awaiting the out-
come of this action before moving on complainants' charges.
Article 11, Section 10, of the Montana Constitution
states:
"Right of Privacy. The right of individual
privacyis essential to the well-being of a
free society and shall not be infringed with-
out the showing of a compelling state inter-
est."
The Transcript of the 1972 Constitutional Convention clearly
indicates the significance to the delegates of this right,
which nowhere appears in the Federal Constitution but has
been judicially inferred from the provisions of the Bill of
Rights. Delegate Campbell read into the record an editorial
statement from the Montana Standard, February 3, 1972, here
included in part:
"We think the right of privacy is like a
number of other inalienable rights; a
carefully worded constitutional article
reaffirming this right is desirable. Wade
Dahood of Anaconda, Chairman of the Bill
of Rights Committee, hit the nail on the
head when he said: 'As government functions
and controls expand, it is necessary to ex-
pand the rights of the individual.' The
right to privacy deserves specific protec-
tion." Tr. of the Montana Constitutional
Convention, Vol. V, p. 1681.
Indeed, at one point, the delegates struck out the phrase
requiring a compelling state interest, because, in the words
of Delegate Harper:
". . . that may be interpreted by whatever
state agency happens to have an interest in
invading my privacy at that particular time."
Tr. at p. 1682.
David Gorman, in an article entitled "Rights in Collision:
The Individual Right of Privacy and the Public Right to
Know," 39 Mont. L. Rev. 249, 251 (1978), noted that the
delegates' decision to include the phrase after all was
intended to strengthen rather than weaken the constitutional
protection afforded the individual right to privacy:
"When the amended provision was reported out
of the Style and Drafting Committee the dele-
gate who had offered the deleting amendment
moved for reconsideration, supporting his
motion by saying that his general intent, to
strengthen the protection of the individual,
was not served by his amendment. The debate
on the motion to reconsider (which passed)
and the subsequent motion to reintroduce the
'compelling state interest' test was lively.
Various delegates took the positions that the
standard was implicit, that the right of privacy
had been rendered absolute, that the amended
provision was meaningless to a court, and that
in default of any explicit standard the courts
could choose to apply a mere 'reasonableness'
test to defeat privacy rights. It was this
last argument which apparently swayed the con-
vention as a whole, and the 'compelling state
interest' test was restored.
"This explicit statement of the weight to be
accorded to the right guaranteed by the provi-
sion places a heavy burden on the state. It
has even been suggested that the task faced by
the state of showing a compelling interest is,
in most situations, an impossible one. Clearly
the delegates placed a very high value on the
right of privacy, and they forcefully indicated
that the courts were to accord it every pro-
tection available under this most stringent
standard of judicial review." 39 Mont. L. Rev.
at 251.
There can be little doubt that the federal protection
is less stringent and would allow discovery without requir-
ing a showing of compelling state interest under these
circumstances. The Tenth Circuit Court of Appeals addressed
the question in the context of privacy rights under the
Fourth Amendment, in Equal Employment Opportunity Commission
v. University of New Mexico, Albuquerque (10th Cir. 1974), 504
F.2d 1296, 1302, a case raising a legal issue similar to
the present one:
"The law governing the limits on the adminis-
trative power of investigation has evolved
from the earlier judicial condemnation of
fishing expeditions to that of enforcement of
the subpoena power 'if the inquiry is within
the authority of the agency, the demand is not
too indefinite, and the information sought is
reasonably relevant.' United States v. Morton
Salt Co., 338 U.S. 632, 652, 70 S.Ct, 357,
369, 94 L.Ed. 401 (1950)."
The court concluded that, under federal law,
". . . today that which we have previously
considered to be administrative 'fishing
expeditions' are often permitted; and that
administrative subpoenas may be enforced
for investigative purposes unless they are
plainly incompetent or irrelevant to any law-
ful purpose." 504 F.2d at 1303.
In the present case, the HRC seeks information which the Dis-
trict Court recognized as relevant to proper investigation by
the HRC of the employment discrimination complaints; the
subpoenas clearly indicate the information which is sought.
Under the federal standard, discovery of the personnel files
and records would not be restricted by a penumbral right of
privacy.
However, as noted, Montana's constitutional right of
privacy is explicit. This Court has recognized that the
protection it offers is more substantial than that inferred
from the Federal Constitution. In State v. Hyem (1981),
Mont. , 630 P.2d 202, 38 St.Rep. 891, we upheld the
application of the exclusionary rule to private searches
which invaded the privacy rights of individuals, a protec-
tion not found under the Federal Constitution. Therein we
stated:
"Privacy has been defined as the ability to
control access to information about oneself.
Fried, Privacy (1968), 77 Yale L.J. 475, 482,
483." 630 P.2d at 209, 38 St.Rep. at 898.
The HRC argues that enforcement of the subpoenas duces
tecum would not be an infringement of a privacy right here,
because no privacy right exists where there is no statutory
privilege (see section 26-1-801, et seq., MCA), and where
an employee or applicant for employment voluntarily submits
the information to a third party. The HRC relies upon
Hastetter v. Behan (1982), Mont. - , 639 P.2d 510, 39
-
St.Rep. 100, wherein this Court relied upon federal case law
in upholding the respondent's disclosure of appellant's
telephone records. We quoted Smith v. Maryland (1979), 442
U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220:
"'Second, even if petitioner did harbor some
subjective expectation that the phone numbers
he dialed would remain private, this expecta-
tion is not "one that society is prepared to
recognize as 'reasonable.'" This Court con-
sistently has held that a person has no legiti-
mate expectation of privacy in information he
voluntarily turns over to third parties.'"
(Citations omitted.) 639 P.2d at 512-513, 39
St.Rep. at 103.
We find the HRC's reliance upon Hastetter, supra,
misplaced. This Court is not bound to give precedential
value to dicta, State v. Gopher (1981), Mont. , 631
P.2d 293, 296, 38 St.Rep. 1078, 1081-82, and we must abandon
that language of --
Smith, supra, which, incorporated into
-
Hastetter, appears to deny the protection of section 10 to
--- communications voluntarily given to third parties.
all
Hastetter's holding was that the appellant had no reasonable
expectation of privacy in telephone records justifying
constitutional protection. In Hastetter, the disputed
information was not the contents of the communication, the
privacy of which was not addressed by this Court, but the
fact of communication. That information was known by
appellant to be recorded by the phone company for a number
of business purposes. We were not persuaded that appellant
could have reasonably expected the numbers he dialed to
remain secret.
In the present case, the personal information submitted
to employers by prospective and current employees, and that
contained in materials compiled by employers is quite dif-
ferent from the relatively innocuous telephone records in
Hastetter. While we are aware that much of the information
contained in employment files and records is harmless or is
already a matter of general knowledge, we are not persuaded
that the records are entirely free of damaging information
which the individuals involved would not wish and in fact
did not expect to be disclosed. The standard set forth in
Hastetter is whether the party involved subjectively ex-
--
petted the information to be and remain private, and whether
society is willing to recognize that expectation as reason-
able. This standard was adopted by the Supreme Court in
Katz v. United States (1967), 389 U.S. 347, 88 S.Ct. 507, 19
L.Ed.2d 576.
Employment records would reasonably contain, among less
sensitive information, references to family problems, health
problems, past and present employers' criticism and observa-
tions, military records, scores from IQ tests and performance
tests, prison records, drug or alcohol problems, and other
matters, many of which most individuals would not willingly
disclose publicly. Some testing and disclosure (e.g., past
employment records, prison records, drug or alcohol use) is
a necessary part of many applications for employment; other
information may be compiled by present employers or may be
submitted by an employee in explanation of absence from work
or poor performance on the job. It is clear that there is
frequently pressure upon an employee to communicate these
matters to his employer in the privacy of his boss's office
or on an application for employment or promotion. And
while, as far as we know, respondents gave their employees
no specific assurances of confidentiality, we believe that
employees would reasonably expect such communication normally
would be kept confidential. Therefore, we find that under
the circumstances of this case, the information requested by
the HRC is subject to the protection of Montana's constitu-
tional right of privacy (510).
The HRC argues that because an employee knows informa-
tion concerning his employment may be sought by prospective
employers in the future, he may not reasonably expect it
will never be divulged to anyone else. It may well be
unreasonable for an employee to expect that this information
will never be divulged to prospective employers. It does
not necessarily follow that, therefore, this information is
unprotected by the right of privacy under all other circum-
stances, even where an employee can reasonably expect it
will - be divulged, such as in an investigation or during
not
a public hearing in which the employee is only remotely
involved. The right of privacy turns on the reasonableness
of the expectation, which may vary, even regarding the same
information and the same recipient of that information.
We hold that the District Court correctly found that
the information sought by the HRC is protected by Montana's
constitutional right of privacy.
We note in passing the HRC's claim that respondents
have no standing to assert the constitutional rights of
their employees in refusing to comply with the HRC's sub-
poenas duces tecum. One who is neither injured nor jeopar-
dized by the operation of a statute cannot challenge its
constitutionality. State v. Kirkland (1979), Mon t .
, 602 P.2d 586, 590, 36 St.Rep. 1963, 1966. Here,
respondents argue that disclosing personal information about
employees and applicants for employment without the consent
of those individuals involved or without a court order
forcing them to disclose, places them in jeopardy because it
could lead to their being sued by those individuals for
revealing private information. Other courts have held, and
we agree, that potential economic injury is sufficient to
establish standing. In Falcon v. Alaska Public Offices Com-
mission (Alaska, 1977), 570 P.2d 469, the court found a
doctor had the right to deny, on behalf of his patients,
government access to his files, because such disclosure
could discourage prospective patients.
The delegates to the 1972 Constitutional Convention
recognized that the right of privacy is not absolute, and
that under certain circumstances, the State's interest in
obtaining information about individuals may outweigh the
individuals' right of privacy. Tr. of the Montana Consti-
tutional Convention, Vol. VI, p. 1851.
In State ex rel. Zander v. District Court (1979), 181
Mont. 454, 458-459, 591 P.2d 656, 660, we recognized the
rule:
"From these cases and our constitutional
language certain principles of law emerge.
The right of individual privacy is a funda-
mental constitutional right expressly recog-
nized as essential to the well-being of our
society. The constitutional guarantee of
individual privacy is not absolute. It must
be interpreted, construed and applied in the
light of other constitutional guarantees and
not in isolation. The right of individual
privacy must yield to a compelling state in-
terest. "
See Hyem, supra, 630 P.2d at 205-206, 38 St.Rep. at 894:
"Under the 1972 Montana Constitution, the only
exception to the restriction against the in-
vasion of individual privacy is a compelling
state interest."
Here we find a compelling state interest which itself
arises from the Montana Constitution. Article 11, Section
4, of the Montana Constitution states:
"The dignity of the human being is inviola-
ble. No person shall be denied the equal
protection of the laws. Neither the state
nor any person, firm, corporation, or insti-
tution shall discriminate against any person
in the exercise of his civil or political
rights on account of race, color, sex, cul-
ture, social origin or condition, or politi-
cal or religious ideas."
This section was unanimously adopted by the delegates.
Under the Montana Human Rights Act of 1974, section 49-
1-102, MCA, provides t h a t t h e r i g h t to be free from dis-
crimination includes the right to obtain and hold employment
without discrimination. The Human Rights Commission, ad-
ministrative watchdog over discriminatory practices in
Montana, possesses subpoena power as provided under section
49-2-203, MCA:
' ' 1 ) The commission may subpoena witnesses,
take the testimony of any person under oath,
administer oaths, and, in connection there-
with, require the production for examination
of books, papers, or other tangible evidence
relating to a matter either under investiga-
tion by the commission staff or in question
before the commission. . ."
The investigative powers of the HRC must be broad
enough to allow a thorough scrutiny of the circumstances
surrounding complaints of discrimination. The scrutiny in
the present case must involve comparison of employee records,
applications, evaluations, tests, etc. There is simply no
other way for the HRC to determine whether the City and
County discriminated in the ways alleged by complainants. A
consideration of the complainants' files alone would not
yield the comparative data which is essential here. To deny
the HRC access to the material it seeks renders ineffectual
a substantial portion of its statutory investigative powers,
and is a large step toward drawing the teeth of the HRC.
That we are unwilling to do.
Respondents argue, and the District Court found, that
because the HRC did not seek the consent of the individuals
involved to its perusal of their employment records, that it
had not exhausted its means of obtaining the information,
and thus had not established a compelling state interest.
We do not agree, for several reasons. In the first
place there are well over one hundred files involved. The
time, cost, and inconvenience of the search for individual
employees, past and present, and the attempt to gain their
consent, would be prohibitive. Undoubtedly, a good many
individuals, particularly those who may have been hired or
promoted because of an employer's discriminatory rejection
of more qualified or equally qualified applicants, would
refuse the HRC access to the files. The respondents have
suggested that, in that event, the files could be subpoenaed
directly from the individual employees; that would be imprac-
ticable and would lead to yet more litigation. Finally,
some employees whose files are sought may have died or left
the area, or simply may be impossible to track down. The
only reasonable, thorough and relatively efficient means of
obtaining access to the files is through the employer. We
do not find that the HRC has failed to establish a compel-
ling state interest by failing to contact and obtain the
permission of those employees and ex-employees of the City
and County whose files they seek. The practical realities
of the situation, and the greater importance of the protec-
tion from discrimination convince us that the HRC has made a
sufficient showing of a compelling state interest, and that
the disputed files and materials must be made available to
the HRC.
The respondents suggest that test scores and other
arguably sensitive material could be altered in such a way
that the names of the employees would not be disclosed to
the HRC, and thus the intrusion would be less objectionable.
The HRC correctly points out that many names are indicators
of racial origin, frequently of sex, and in some cases of
marital status, which information might not be available in
the file itself. Furthermore, the HRC objects to any altera-
tion of files because, at that point, the accuracy of the
HRC's investigation depends upon the good faith of the
employer, the very party charged with discriminatory beha-
vior, whose temptation to doctor files undoubtedly increases
with the likelihood the HRC will find that employer guilty
of discriminatory practices.
We agree with the HRC, that all information in the
employers' personnel files, which could reasonably cast some
light on the truth or falsity of complainants' allegations,
and which is included under section 49-2-203, MCA, should be
subject to the investigative subpoena of the HRC.
We have concluded that it is necessary that respondents
provide the requested information to the HRC. It is also
necessary to establish some substantial protection of the
privacy of those individuals whose files are made available
to the HRC. It is apparent that there must be a step by
step learning process involved, in which the administrative
agencies and the courts will determine on a case by case
basis how the right to privacy and the right to know should
be balanced.
The HRC argues that its regulation providing for
confidentiality in investigations sufficiently protects the
individuals involved. The regulation states:
"Confidentiality. (1) Neither a charge nor
information obtained in the investigation of
a charge, nor any records required by the
Commission to be filed with the Commission
shall be made matters of public information
by the Commission prior to the certifying
of a case for public hearing (including hearing
on a no cause finding, a default hearing or
a hearing alleging violation of a conciliation
agreement). This provision does not apply to
such earlier disclosures to the Charging Party,
the Respondent, witnesses, counsel, and repre-
sentatives of interested Federal, State and
local agencies as may be appropriate or neces-
sary to the carrying out of the Commission's
functions under the act, nor to the publication
of data or abstracts derived from such informa-
tion in a form which does not reveal the iden-
tity of the charging party, respondent, or
person supplying the information. The Commis-
sion may enter into agreements with any federal,
state, or local governmental agency for the
deferral of complaints or sharing of informa-
tion regarding complaints which agreements may
require more stringent standards of confiden-
tiality with regard to such complaints or such
information." Administrative Rules of Montana
$24.9.212.
There is very limited protection in this regulation so
far as the right of privacy is concerned. The restriction
on the Commission does not apply to an early disclosure to
the charging party, the respondent, witnesses, counsel, and
representatives of interested agencies. In itself, this
disclosure could be sufficient to eliminate the effective
protection of the right of privacy. In addition, if the HRC
certifies a case for public hearing, then it is up to the
Commission to decide the extent and nature of the informa-
tion to be given at the public hearing. We do not find this
regulation to be an adequate protection of the right of
privacy.
We are aware that clamping too tight a lid on the HRC's
freedom to disseminate the information obtained from respon-
dents establishes yet another constitutional conflict.
,
In Kuiper v. District Court (1981), - Mont. - 632
P.2d 694, 696-698, 38 St.Rep. 1288, 1290-1292, this Court
reversed a District Court order forbidding use of certain
documents already in the possession of the appellant "for
any purpose whatsoever," finding the order unconstitutionally
proscribed appellant's freedom of expression. We agreed
that First Amendment protection extended to litigation and
to the fruits of discovery, 632 P.2d at 698, 38 St.Rep. at
1291, and agreed with Judge Bazelon in In re Halkin (D.C.
Cir. 1979), 598 F.2d 176, 186, that while a protective order
is not automatically a prior restraint, "the fact that [it]
poses many of the dangers of a prior restraint is sufficient
to require close scrutiny of its impact on protected First
Amendment expression." 632 P.2d at 697, 38 St.Rep. at 1291.
We referred to the three-prong test used in Nebraska Press
Ass'n. v. Stuart (1976), 427 U.S. 539, 96 S.Ct. 2791, 49
L.Ed.2d 683, and Halkin, supra, requiring the court to find
that the harm posed by dissemination is substantial and
serious, the restraining order is narrowly drawn and pre-
cise, and there is no less intrusive alternative means of
protecting the public interest.
In Mountain States Telephone & Telegraph Company v.
Department of Public Service Regulation (1981), Mont.
, 634 P.2d 181, 38 St.Rep. 1479, this Court issued a
protective order to prevent the public disclosure of "trade
secrets" which the Court held could be obtained by the
agency during its investigation. The broad rationale ap-
plies to this case: During an appropriate investigation, the
agency is entitled to all pertinent information possessed by
an entity subject to its regulating power; when the public
right to know collides with that entity's right to protect
certain private information, a balancing of rights is neces-
sary; a protective order may be fashioned which allows the
agency the "fullest available information," while providing
the public with "all information required to enable citizens
to determine the propriety of governmental actions affecting
them." We relied upon Pennzoil Co. v. Federal Power Commis-
sion (5th Cir. 1976), 534 F.2d 627, 631:
"Implicit in [F.C.C. v. Schreiber (1965), 381
U.S. 279, 85 S.Ct. 1459, 14 L.Ed.2d 3831 is
the proposition that the balancing of the pub-
lic and private interests might compel secrecy.
. . Therefore, in reviewing this case we must
likewise determine whether the Commission abused
its discretion in balancing the public and pri-
vate interest." 634 P.2d at 187, 38 St.Rep. at
1485.
We found that the District Court's failure to protect the
trade secrets was improper because a satisfactory balancing
of interests could have been achieved, and we issued a
directive for a protective order. The order allowed full
disclosure to the PSC and sought to limit the release of
private information by "provisions which protect the confi-
dentiality of the trade secret information." 634 P.2d at
187, 38 St.Rep. at 1485-1486.
In the case at bar, much of the problem with restrict-
ing dissemination by the HRC, or public access to the information
in the disputed personnel files, lies in the fact that some
of that information is undoubtedly neither sensitive nor
private information, and, if viewed apart from the more
damaging information, as it must be if a protective order is
to be narrowly drawn, is neither subject to the protection
of the privacy right, nor particularly relevant to the
investigation at hand.
We conclude that the needs and rights of the parties
and the persons whose files are sought, as well as the
general public, are best met by allowing broad discovery to
the HRC, but restricting the release of information which
suggests the identity of employees whose files may be used
in investigating the alleged discriminatory practices by
respondents. We therefore direct the District Court to
prepare an order requiring respondents to furnish the re-
quested information to the HRC, but providing that the HRC
shall not disclose the information to any individual, agency
or party (other than respondents) outside of the HRC except
under the following circumstances:
(1) In the event that the HRC deems it necessary to
hold a public hearing on the alleged discriminatory prac-
tices, or to disclose the information to anyone outside the
HRC (other than respondents), it shall protect the privacy
of any person(s) as to the elements of such information by
altering the information to provide for the anonymity of the
person(s) involved. This will include the elimination of
names, specific ethnic designations and other classifica-
tions which reasonably might allow identification of the
person(s) whose privacy right is to be protected; except
that
(2) In the event that the HRC determines that the
release of information reasonably subject to a right of
privacy claim is required in a way which may disclose the
identity of person(s) involved; then prior to the release of
that information the HRC shall obtain from the District
Court a further order of authorization and protection.
The orders of the District Court shall provide that
failure by the HRC or other persons or agencies to whom the
information is released to comply with the above order(s)
shall make the offending party subject to contempt proceed-
ings.
We suggest to the legislature that it consider legisla-
tion similar to 42 U.S.C. 52000e8(e) which would protect the
right of privacy by fines and penal sanctions.
We vacate the judgment of the District Court and remand
to the District Court for such further proceedings, includ-
ing the entry of a protective order, as are required under
this opinion.
We concur:
d, % &
e
Chief Justice
c l - Justices
d + k.sdn~d,