IN THE SUPREME COURT OF THE STATE OF M N A A
O T N
1989
BARRY ENGRAV,
P l a i n t i f f and A p p e l l - a n t ,
-vs-
MOREY CRAGTJN, G r a n i t e County S h e r i f f ,
D e f e n d a 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 Third 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 o f G r a n i t e ,
The H o n o r a b l e Ted L . M i z n e r , J u d g e p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
R a r r y E n g r a v , p r o s e , M i s s o u l a , Montana
For Respondent :
Hon. Marc R a c i c o t , A t t o r n e y G e n e r a l , H e l e n a , Montana
Paul D. Johnson, A s s t . A t t y . General, Helena
J . A l l e n Bradshaw, G r a n i t e County A t t o r n e y , p h i l i p s -
I- b u r g , Montana
C?"
Submitted: Dec. 9 , 1989
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Llll : . Decided: February 27, 1989
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Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Barry Engrav, proceeding pro se, appeals the order of
the District Court of the Third Judicial District, Granite
County, denying his request for records of the Granite County
Sheriff's Department. Appellant requested records of the
daily log of phone calls, case files of criminal
investigations, pre-employment investigations, and lists of
arrested persons. The sheriff's office denied the request,
and the District Court. upheld the sheriff's denial, finding
that the right of privacy of those people on the requested
lists and investigation reports held a riqht of privacv which
outweighed the public right to know.
The issue on appeal is:
Whether the District Court properlv denied the plain-
tiff access to the requested information on the grounds that
the right of privacy of the individuals outweighed the public
right to know?
Appellant is a University of Montana student and a
lifetime resident of Granite County who is interested in
researching and reporting on various aspects of Granite
County law enforcement. He requested information concerninq
records in the Granite County Sheriff's office. These were:
(1) daily log of telephone calls, (2) case files of criminal
investigations, (3) pre-employment investigation reports, and
( 4 ) a list of persons arrested since January 1, 1987.
Appellant alleged that the phone log and list of radio
calls were important to determine the rate of crime reported
by the public, the response of the sheriff's department to
those reported crimes, and the seriousness of the reported
crimes. He alleged that the case files for criminal investi-
gations were important because:
Without access to case files of criminal
investigations, Plaintiff is unable to
assess the quality of the Defendant's
investigative procedures and the rate of
solved crimes.
Appellant requested pre-employment investigation mate-
rials because without them he would not be able to determine
the adequacy of the defendant's hiring policies or the quali-
ty of personnel hired by the defendant. He wanted to see j.5
the policies were up to the standards that taxpaying citizens
were entitled to.
Lastly, appellant wanted the list of persons arrested
since January 1, 1987, to investigate the quality of care
given to incarcerated inmates.
Respondent, Granite County Sheriff, denied these re-
quests by Engrav.
The issue is whether the District Court properly denied
the requests for the daily telephone logs, all criminal
investigatory files, active and inactive pre-employment
investigatory files, and arrest records, declaring that the
right of privacy outweighed the public right to know. The
Constitution of the State of Montana states two confl-icting
rights. Article 11, Section 9, 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.
Article 11, Section 10, reasserts an individual's right to
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 compellinq
state interest.
When reading the transcript from the Constitutional
Convention for the 1972 Montana Constitution, it is clear
that the framers, in wording Article 11, Section 9, took
painstaking care to consider both the public right to know
and an individual's right of privacy. Volume VII, Mont.
Const. Conv. at 2483-2498. The primarv concern of the dele-
gates to the convention was in enacting an article which gave
the public the power to request information from government
agencies and public bodies. The convention delegates specif-
ically inserted the words "except in cases in which the
demand of individual privacy clearly exceeds the merits of
public disclosure."
The committee intends by this provision
that the right to know - be absolute.
not
The right of individual privacy is to be
fully respected in any statutory embel-
lishment of the provision as well as in
the court decisions that will interpret
it. To the extent that a violation of
individual privacy outweighs the public
right to know, the right to know does
not apply. . . .
Volume 11, Mont. Const. Conv. at 632.
Delegates to the convention carefully discussed the
introduction of a specific section for the right of privacy,
and subsequently created Article 11, Section 10. They took
into consideration the fact that neither the United States
Constitution nor the original Montana Constitution expressly
stated a right to privacy in the bill of rights. According
to the delegates, since adopting the original Montana Consti-
tution, the right had clearly developed and should be enumer-
ated in the Constitution.
One of the reasons that the delegates believed the
right should be explicit]-y enumerated was that modern tech--
nology is used today to invade individual privacy, including
wire taps, bugging devices, photo surveillance and computer-
ized data banks.
Appellant declares that § 2-6-102, MCA, is the standard
for the public right to know. It states that "every citizen
has a right to inspect and take a copy of any public writings
of this state." Respondent argues that the governing stat-
utes are within the Montana Criminal Justice Information Act
of 1979, S S 44-5-101 through 44-5-415, MCA, whose purpose is,
in part, to establish effective protection of individual
privacy in confidential and nonconfidential criminal justice
information collection, storage, and dissemination.
In considering the possible conflict between the Arti-
cles of the Constitution and among the Montana statutes, it
is important to remember that in all of the relevant laws the
right of privacy for the individual is expressly regarded.
We adopted. a two-part test in Montana Human Rights
Division v. City of Billings (1982), 199 Mont. 434, 649 P.2d
1283, which determines whether a person has constitution all^^
protected privacy interest. The first part of the test is
whether the person involved had a subjective or actual expec-
tation of privacy. The second is whether society is willing
to recognize that expectation as reasonable. In applying the
test in Montana Human Rights Division, we held that there was
an individual privacy interest concerning personnel records
and employment applications. In that case, the Human Rights
Commission requested employment information as part of an
investigation of a discrimination case. Defendant City of
Billings refused to relinquish the information. We held that
the Human Rights Commission could require an employer to
submit certain evidence concerning employee records hut that
the Commission had to prevent invasion into the privacy of
those people whose names appeared on the employment informa-
tion. The Human Riqhts Commission was not to divul.ae any of
the information to outside sources. The only instance in
which the Commission could do so was if it decided that a
public hearing was necessary, and only then if it altered the
information sufficiently to guarantee anonymity of the per-
sons involved.
The test was also applied in Missoulian v. Board of
Regents of Higher Education (1984), 207 Mont. 513, 675 P.2d
962, where the Missoulian requested information concerning
job performance evaluations of the six Montana university
presidents. The Board of Regents refused to submit the
information, declaring that the information was within the
actual expectation of the individuals' privacy rights and
that the expectation was reasonable. This Court agreed with
the Board. The evaluations were self-evaluations and evalua-
tions by Board members. It was clear that if these evalua-
tions were open to public scrutiny, none of the evaluators
would be as candid as when evaluations are confidential.
Moreover, the evaluations could be used as a vindictive
mechanism against university employees or presidents : those
!
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who dislike the individuals.
In applving the two-part test to the case at bar, we
must first decide whether the persons involved have a suhjec-
tive or actual expectation of privacy. It is clear from the
expectations of the individuals involved, that there i s an
.
actual expectation of privacy. It is obvious that when
individuals call the police station, they have an actual
expectation of privacy for the information they give. For
those citizens who are willing to report crimes that they
witness but wish to remain anonymous, the expectation is
actual.
Public exposure of law enforcement files relating to
ongoing criminal investigations would also have a disastrous
effect upon law enforcement agencj-es in the performance of
their duty to protect the lives, safety and property OF
persons within their jurisdictions. If criminals and their
allies could daily track the progress of investigations into
their criminal activities, Montana would become a worldwide
mecca for criminal entrepreneurs. The public policy of this
state cannot permit this to occur.
There is an actual privacy interest where criminal
investigations are concerned because investigations are
conducted concerning people under scrutiny but are later
dismissed from suspicion. Those persons do not expect to
have their names publicized for something with which they
have no actual involvement. Moreover, names of informants
involved in criminal investigations, or undercover police
officers, if made public, would put the lives of these people
and the investigation in jeopardy.
The holding in Montana Human Rights Division estab-
lished that there is an actual privacy expectation for those
who apply for employment positions. They are required. to
disseminate information about themselves which they expect to
remain private. The expectation here is actual and not
subjective.
The second part of the test is whether society is
willing to recognize the privacy expectation as reasonah1.e.
We hold that society does recognize the expectation.
In the case of both phone logs and criminal investiga-
tions, situations arise where the information is of a highly
personal nature. These instances include cases of sexual
crimes and domestic crimes where both the victims and their
families should be protected from public exposure. Associa-
tion with these investigations is accidental and innocent,
and the privacy interests of these victims and families must
he protected from further traumati-c injury.
The appellant also requested pre-employment
information. The sheriff properly denied the information
requested. We have stated that where employment records are
concerned,
.
. . Calthough] we are aware that much
of the information contained in employ-
ment 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 informa-
tion which the individua1.s involved
would not wish and in fact did not
expect to be disclosed.
Montana Human Rights Division v. City of Billings, 649 P.2d
at 1287. In Missoulian, we emphasized some of the areas
which would be on pre-employment and employment files. These
include family and health problems, employers1 criticisms,
employees1 criticisms of the employer, interpersonal rela-
tionships, and subjective view of employers. These must all
be protected under constitutional privacy interests. More-
over, if the investigations are confidential, more candidness
is guaranteed the sheriff's department prior to hiring new
employees. This is beneficial to the public.
Section 44-5-103, MCA, specifically declares what
information can be publicly disseminated. Included in
"public criminal justice information" are arrest records.
Section 44-5-103 (12)(e)(ii), MCA. Initial arrest records are
not excluded from review by the public when reviewed in
cooperation with the agency which holds the information
during normal business hours of the agency. Section
44-5-301 (2), MCA. Section 44-5-301 (I), MCA, states that all
information is public with the exception of records or index-
es which are "compiled by name or universal identifier from a
manual or automated system . . . " In these cases, only
information about convictions, deferred prosecutions, or
deferred sentences is available to the public.
There appears to be a distinct conflict between
S S 44-5-103 and 44-5-301, MCA. Section 44-5-103(12) clearly
states that arrest records are "public criminal justice
information." Arrest records are included in a list of
public information which includes information, (a) made
public by law; (b) of court records and court proceedings;
(c) of convictions, deferred sentences, and deferred
prosecutions; (dl of post-conviction proceedings and status;
(e) originated by a criminal justice agency, including (i)
initial offense reports, (ii) initial arrest records, (iii)
hail records, and (iv) daily jail occupancy rosters; (f)
information considered necessary by a criminal justice agency
to secure public assistance in the apprehension of a suspect;
or ( g ) statistical. information. Section 44-5-103 (14), MCA,
specifically states that statistical information which is
disseminated in the public domain is:
... data derived from records in which
individuals are not identified or identi-
fication is deleted and from which nei-
ther individual identity nor any other
unique characteristic that could identify
an individual is ascertainable.
Although 5 44-5-103 specifically regards initial arrest
records as public criminal justice information,
S 44-5-301 (1) (a) declares:
(1) There are no restrictions on the
dissemination of public criminal justice
information except for the following:
(a) Whenever a record or index is com-
piled by name or universal identifier
from a manual or automated system, only
information about convictions, deferred
prosecutions, or deferred sentences is
avai.lable to the public.
It is obvious that any initial arrest record is going to be
compiled by name of those arrested or by another universal
identifier, such as a social security number. Therefore,
under S 44-5-301, the same initial arrest records which are
allegedly available to the public are also restricted from
public review because they enter the area of private records
of individuals.
There is debate whether the information sought concern-
ing arrest records is more beneficial subject to public
scrutiny, or whether it should not be available as public
criminal justice information. Individuals arrested under
suspicion of committing a crime and who are subsequently
released without charges or incarceration must he protected
from public persecution. On the other hand, law enforcement
must be under the view of the public to deter false arrests
or possible discriminatory action.
In construing statutes where general terms and specific
terms are in conflict, specific intent will be given priority
over the general term. City of Billings v. Smith (1971), 158
Mont. 197, 490 P.2d 221; Wymont Tractor and Equipment Co. v.
Unemployment Compensation Commission of Mont. (1955), 128
Mont. 501, 278 P.2d 208. The definitional statute,
§ 44-5-103, specifically states that arrest records are
public information. Section 44-5-301 relates to any record
or index which is compiled by name or universal identifier.
As to initial arrest records, 5 44-5-103 takes precedent. We
hold that the initial arrest records are public.
It is important to keep the right of privacy of indi-
viduals in mind here. To prevent unnecessary dissemination
of private information, appellant will be allowed to view and
record the information pursuant to S44-5-103 (14), MCA.
Section 44-5-103(14) specifically states:
"Statistical information" means data
derived from records in which individu-
als are not identified or identification
is deleted and from which neither indi-
vidual identity nor any other unique
characteristic that could identify an
individual is ascertainable.
The purpose of the information sought by appellant can
be accomplished without dissemination of the names of those
individuals listed on the initial arrest records. He can
review and disseminate the information without including the
names of arrested individuals.
Privacy rights of individuals in Montana are more
substantial than the rights guaranteed in the United States
Constitution. Montana Human Rights Division, 649 P.2d at
1286. Before this Court will invade the individual privacy
of the persons involved, a compelling state interest to do so
must be found. There is no compelling state interest here
which allows the dissemination of the requested information.
Appellant wishes to do a study for a school research project;
this is not a sufficient state interest.
Section 44-5-303, MCA, states that dissemination of
confidential criminal justice information is restricted to
criminal justice agencies or to those authorized by law to
receive it. Appellant is neither part of a criminal justice
agency nor authorized to receive the information.
Section 44-5-304, MCA, allows individuals to have
access to criminal history record information for the express
purpose of developing statistical information pursuant to an
agreement with a criminal justice agency. The information
may be disseminated according to (a) specific authorization
of the information; ( b ) limitation on the use of the informa-
tion, to research, evaluative, or statistical purposes; (c)
assurance of confidentiality and security of the information;
and (d) sanctions for violations of the agreement. Further-
more, pursuant to § 44-5-304(2), MCA, the agreements, re-
search, studies and statistical information gathered from the
criminal history records is subject to the review and approv-
al by the Department of Justice. The requested arrest
records are subject to the provisions of § 44-5-304.
We affirm the finding of the District Court and hold
that the requested information is beyond the reach of the
public sector. The information is protected under the Mon-
tana Constitution and the Criminal Justice Information Act of
1979.
A € firmed.