No. 89-153
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
IN RE THE APPLICATION FOR
PRODUCTION OF POLICE RECORDS
RE: MICHAEL LACY.
ALLSTATE INSURANCE CO.,
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CITY OF ~JLLINGS,
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Respondent.
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APPEAL F R ~ M : District Court of the Thirteenth Judicial District,
.- 7 In and for the County of Yellowstone,
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"Ihe Honorable Robert Holmstrom, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Janice L. Rehberg; Crowley, Haughey, Hanson, Toole and
Dietrich, Billings, Montana
For Respondent:
Paul Luwe, City Attorney's Office, Billings, Montana
Submitted on Briefs: Aug. 10, 1989
Decided: September 27, 1989
Filed:
Justice R. C. McDonough delivered the Opinion of the Court.
This is an appeal from an order denying appellant,
Allstate Insurance Company's (Allstate) application for an
order directing the Billings Police Department (Department)
to release to Allstate copies of its records relating to
Michael Lacy, Allstate's insured. We reverse and remand.
The sole issue in this case is:
Whether the District Court erred in denying Allstate ' s
application for the production of police records pertaining
to the Billings Police Department's investigation into the
death of Allstate's insured, Michael Lacy, for use during the
insurance company investigation of policy coverage.
On January 11, 1988, Michael Lacy (Lacy) submitted an
application to Allstate for a $130,000 life insurance policy.
In the application, Lacy responded negatively to questions
concerning prior use of illegal drugs, treatment for Acquired
Immune Deficiency Syndrome (AIDS) and the presence of any
mental or physical disorders. Based upon these
representations, a policy was issued covering the life of
Lacy. The policy was to be owned by and payable to Donn
Cornelia.
Lacy died on September 5, 1988, at the War Bonnet Inn in
Billings, Montana. The police were called to investigate his
death. Upon arriving at the scene, the police found used
syringes, quantities of white powder and other substances
believed to be illegal drugs. The coroner's report revealed
that Lacy was a frequent drug user, that there was evidence
of "recent and old" intravenous drug use, and that Lacy
tested positive for HIV (the AIDS vir,us). The report
determined that Lacy died of an intravenous drug overdose.
Because there was inconclusive evidence to support a
finding of suicide, the coroner termed Lacy's death
accidental. Allstate believes, however, that further
investigation may reveal that the death was, in fact,
suicidal. Acting upon this belief and the circumstances
surrounding the death, Allstate made a request to the
Billings Police Department, to allow it access to files
prepared during investigation of the incident. Allstate
believes that the records may assist it in determining
whether Lacy made misrepresentations in his application which
would preclude the beneficiary from recovering any of the
proceeds.
In order to comply with the Department's interpretation
of the Montana Criminal Justice Information Act, Allstate
filed an application with the District Court seeking
production of police records concerning the death of Michael
Lacy. The Department objected to the general release of its
records and requested the court to conduct an in camera
review in order to decide which evidence should properly be
released to Allstate. The Department also sought a
protective order to limit further dissemination of any
information released to Allstate. Allstate did not object to
any of these conditions, and in fact drafted a proposed
protective order.
The District Court, however, denied Allstate's
application. It held that Allstate was not authorized by law
to receive the documents and was not, therefore, entitled to
their production under the Criminal Justice Information Act.
Allstate appealed the lower court's ruling.
In any free society there is tension between competing
rights allocated among the citizens. This tension is
apparent when the right of personal privacy collides with
society's right to know relative to governmental operation.
Because these two rights have been constitutionalized, this
dilemma has been intensified in Montana.
The 1972 Montana Constitution elevated the right to
privacy and the right to know to constitutional status. The
right to privacy is found at Article 11, Section 10, which
provides :
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 right to know is found at Article 11, Section 9,
which states:
No person shall be deprived of the right to examine
documents or to observe the deliberations of all
public bodies or agencies of state government and
its subdivisions, except in cases in which the
demand of individual privacy clearly exceeds the
merits of public disclosure.
As the language of the right to know provision
indicates, the tension between these two guarantees is
aggravated by the fact that they are textually
interdependent. In general, all citizens have an absolute
right to observe and examine the operation of agencies within
government. Curtailment of this right is only justified "in
cases in which the demand of individual privacy clearly
exceeds the merits of public disclosure."
An easy solution which would provide concrete and
uniform guidance in the balancing of these two guarantees has
evaded both the courts and the legislature. The legislature
has attempted to more clearly define and set the boundaries
of the two rights. Of interest to this case is the Criminal
Justice Information Act, which governs the dissemination of
confidential criminal justice information. See, § 44-5-101,
MCA, et seq.
Section 44-5-103(3), MCA, defines confidential criminal
information as:
a) criminal investigative information
b) criminal intelligence information
c) fingerprints and photographs
d) criminal justice information or records made
confidential by law, and
e) any other criminal justice information not
clearly defined as public criminal justice
information.
One of the purposes of the act is to "establish
effective protection of individual privacy in confidential
and nonconfidential criminal justice information collection,
storage and dissemination." Section 44-5-102, MCA.
Obviously in certain situations investigatory material must
be shielded from public review. Victims of sex crimes, for
example, may have a legitimate expectation of privacy. On
the other hand, suspects may have such an expectation in
certain circumstances because criminal investigations
occasionally result in the designation of the innocent as
suspects, particularly in the early stages of investigation.
See 42 Op.Attly Gen. No. 119 at 7 (1988).
The legislature, therefore, in balancing the right of
society to know of the existence and treatment of crime and
'
the individ.ua1 s right to privacy, provided guidelines which
dictate when this information would be subject to
dissemination. Section 44-5-303, MCA, provides that
"dissemination of confidential criminal justice information
is restricted to criminal justice agencies or to those
authorized - - to receive it." (~mphasis
by law added.)
The trial court interpreted this statute to mean that in
order to be "authorized by law," one must be specifically
authorized by statute to receive criminal justice
information. Because Allstate could not point to any statute
which authorized insurance companies to receive criminal
justice records, it was precluded from obtaining them. This
interpretation does not take into consideration basic tenants
of our constitutional system of qovernment and statutory
construction. The office of ultimately interpreting the
Constitution lies exclusively in the judiciary. State v.
Toomey (1959), 135 Mont. 35, 44, 335 P.2d at 1051, 1056.
The trial court's opinion requiring statutory
authorization for release of confidential criminal justice
information effectively delegates to the legislature the
authority to place binding construction upon the State
Constitution. However, its provisions control the
legislature, not vice versa. While the legislature is free
to pass laws implementing constitutional provisions, its
interpretations and restrictions will not be elevated over
the protections found within the Constitution.
As we stated earlier the dissemination of confidential
criminal justice information is restricted to criminal
justice agencies or to those authorized by - to receive it.
law
Section 44-5-303, MCA, (~mphasisadded.) The trial court
held that in order to be "authorized by law," one must be
specifically authorized by statute. We find that this
reading of § 44-5-303, MCA, is too narrow.
Words utilized in a statute are to be given their
natural, plain, ordinary and commonly understood meaning.
State v. Perez (1952), 126 Mont. 15, 22, 243 P.2d 309, 312.
Under its commonly understood meaning the word "law" includes
constitutional as well as statutory law. See §§ 1-1-101 and
-102, MCA, State ex rel. Burns v. Lachlen (1955), 129 Mont.
243, 284 P.2d 998. Accordingly, one is "authorized by law"
to receive criminal justice information by the Right to Know
provision of the Constitution. The only limitation on the
right to receive this information is the constitutional right
to privacy.
This conclusion is further bolstered by our finding that
the "Right to Know" as contained in Article 11, Section 9 of
the Montana Constitution, is a self executing provision. A
provision of a constitution is self executing when
legislation is not required to give it effect. State ex rel.
Stafford v. Fox-Great Falls Theater Corp. (1942), 114 Mont.
52, 74, 132 P.2d 689, 700. The clear language contained
within Article 11, Section 9, indicates that there was no
intent on the part of the drafters to require any legislative
action in order to effectuate its terms.
The legislature does not have the power to provide
through the passage of statute who can exercise this right
unless it finds that such curtailment is necessary to protect
the right of individual privacy. Accordingly, any
interpretation of S 44-5-303, MCA, which requires specific
legislative authorization to review criminal justice
information would render the statute unconstitutional. In
determining the meaning of a statute, this Court will
construe its terms in a manner which will preserve its
constitutionality. Parker v. Yellowstone County (1962), 140
Mont. 538, 543, 374 P.2d 328, 330.
Because the judiciary has authority over the
interpretation of the Constitution, it is the courts' duty to
balance the competing rights at issue in order to determine
what, if any information, should be given to a party
requesting information from the government. In view of the
policies behind the Criminal Justice Information Act, it is
incumbent upon a party to make a proper showing in order to
be eligible to receive such specific confidential
information. It appears Allstate has met this initial
burden. Therefore, on remand the District Court shall
conduct an in camera inspection of the documents at issue in
order to determine what material could properly be released
to Allstate. In making this examination, the court shall
take into account and shall balance the competing interests
of those involved.
Allstate should be accorded the widest breadth of
information possible. However, its request should be
reviewed with deference towards the privacy rights of those
named in the police records. Any release of information, of
co.urse, can be conditioned upon limits contained within a
protective order. This case is remanded and the trial court
is instructed to conduct proceedings consistent with this
opinion.
We Concur:
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