Associated Press, Inc. v. Montana Department of Revenue

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No. 99-175

IN THE SUPREME COURT OF THE STATE OF MONTANA

2000 MT 160

300 Mont. 233

4 P. 3d 5

THE ASSOCIATED PRESS, INC., a New York

not-for-profit corporation registered to do

business in Montana; the MISSOULIAN; the

GREAT FALLS TRIBUNE; the BILLINGS GAZETTE;

KULR-TV; the DAILY INTERLAKE; KTVQ-TV;

the MONTANA NEWSPAPER ASSOCIATION;

and THE MONTANA FREEDOM OF INFORMATION

HOTLINE, INC.,

Petitioners and Appellants,

v.

MONTANA DEPARTMENT OF REVENUE,

Respondent and Respondent.

APPEAL FROM: District Court of the First Judicial District,

In and for the County of Lewis and Clark,

The Honorable Dorothy McCarter, Judge presiding.

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COUNSEL OF RECORD:

For Appellants:

Karl J. Englund, Attorney at Law, Missoula, Montana

Thomas Beers, Beers Law Offices, Missoula, Montana

For Respondent:

Brenda Gilmer, Montana Department of Revenue, Helena, Montana

Submitted and Argued: November 4, 1999

Decided: June 20, 2000

Filed:

__________________________________________

Clerk

Justice Jim Regnier delivered the opinion of the Court.

¶1 The Associated Press, Inc., the Missoulian, the Great Falls Tribune, the Billings
Gazette, KULR-TV, the Daily Interlake, KTVQ-TV, the Montana Newspaper Association,
and the Montana Freedom of Information Hotline, Inc. (Appellants) appeal from the
judgment entered in favor of the Montana Department of Revenue (Department) by the
First Judicial District Court, Lewis and Clark County. We reverse and remand.

¶2 We restate the issues presented on appeal as follows:

¶3 1. Whether Rule 42.2.701, ARM, violates Article II, Section 9 of the Montana
Constitution?

¶4 2. Whether the Department may declare coal severance tax information confidential
when it had been disclosed for a number of years prior to the promulgation of Rule
42.2.701, ARM?

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¶5 3. Whether Rule 42.2.701, ARM, violates the public records statutes?

BACKGROUND

¶6 In 1975 the Montana Legislature enacted a coal severance tax. See § 15-35-103, MCA.
To facilitate collection of the coal severance tax, each coal mine operator is required to
provide the Department with a quarterly statement containing the tonnage produced, the
average Btu value of the production, the contract sales price received for the production,
and such other information as the Department may require. See § 15-35-104, MCA.

¶7 Following the enactment of the coal severance tax, the information provided to the
Department by the coal mine operators was routinely made available to the public in the
form of quarterly coal severance tax collection summaries prepared by the Department.
The information contained in these summaries included the name of the coal company, the
location of each coal mine by county, the total tons produced by each mine, the amount of
tonnage exempt from taxation for each mine, the taxable production for each mine, the
average contract sales price per ton for each mine, the total coal severance tax paid by
each mine, the incentive tax credit (now expired), and the net tax paid by each mine.

¶8 On November 15, 1993, the Department adopted Rule 42.2.701, ARM, which declared
information, such as tax returns, that taxpayers are required to provide to the Department
and Department-prepared documents that identify taxpayers to be confidential. Pursuant to
the adoption of the rule, the Department changed the quarterly coal severance tax
collection summaries to include only the name of the coal company, the location of each
coal mine by county, the total tons produced by each mine, the average sales price per ton
for all Montana coal mines combined, and the total tax paid by all Montana coal mines
combined.

¶9 On January 3, 1994, a Helena law firm representing the Montana Freedom of
Information Hotline requested copies of the 1992 and 1993 quarterly coal severance
collection summaries from the Department on behalf of the Associated Press pursuant to
Article II, Section 9 of the Montana Constitution. Relying on recently adopted Rule
42.2.701, ARM, the Department denied the request on February 10, 1994, claiming that it
had a responsibility to protect the privacy rights of all Montana taxpayers. However, in
light of the public's interest in this information, the Department indicated that it would be
releasing a summary of statistical information including the total tons of coal mined by
each company and the average price of coal and the total amount of severance tax paid for

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all Montana coal mines.

¶10 On July 14, 1994, Appellants filed an Application for Writ of Mandate and Petition
for Declaratory Judgment, requesting the following relief:

1. A writ of mandate compelling the Department to provide Appellants with
information and documents contained in the Department's files that were provided
to the Department pursuant to § 15-35-104, MCA.

2. An order declaring the provisions of Rule 42.2.701, ARM, to be invalid because it
conflicts with § 2-6-102, MCA.

3. An order declaring the provisions of Rule 42.2.701, ARM, to be unconstitutional.

4. An award of reasonable attorney fees and costs to Appellants pursuant to § 2-3-
221, MCA.

5. Any other relief the District Court deems just and proper.

The Department responded to the Appellants' application by alleging, inter alia, that it
failed to state a claim upon which relief could be granted and should be dismissed.

¶11 Subsequently, both parties moved for summary judgment regarding the validity of
Rule 42.2.701, ARM. Appellants alleged that Rule 42.2.701, ARM, violates the public's
constitutionally guaranteed "right to know" in two respects. First, 42.2.701, ARM,
conflicts with Montana's public records statutes, which allow citizens the right to examine
and copy all records held by the government. Second, Rule 42.2.701, ARM, directly
conflicts with Article II, Section 9 of the Montana Constitution, which guarantees the
public the right to inspect documents held by state agencies unless the demands of
individual privacy clearly exceed the merits of public disclosure.

¶12 Regarding the constitutionality of Rule 42.2.701, ARM, the Department contended
that it was validly enacted as an interpretive rule pursuant to its general rulemaking
authority under § 15-1-201, MCA, with respect to supervision of the administration of all
revenue laws of the state, and as such, it is constitutional. The Department also asserted
that its purpose for adopting the rule was to inform the public of the Department's
procedures regarding the confidentiality of certain tax information.

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¶13 The Department also asserted that Appellants were asking the District Court to ignore
the taxpayers' right to privacy guaranteed by Article II, Section 10 of the Montana
Constitution. The Department went on to state that prior to authorizing release of the
requested information, the District Court must first determine whether a privacy interest
exists and if it does, then balance that interest against the public's right to know. Further,
the Department alleged that whether or not the taxpayers have a subjective expectation of
privacy in the requested information is a factual question, necessitating the denial of
summary judgment.

¶14 After the motions for summary judgment had been fully briefed and orally argued by
the parties, the District Court entered its Decision and Order denying summary judgment
in all respects. The basis for the District Court's denial was that the issue of whether the
taxpayers have a subjective expectation of privacy involves questions of fact, requiring an
evidentiary hearing to determine the issue.

¶15 More than a year after the District Court had entered its Decision and Order,
Appellants filed a Motion for Reconsideration. The basis for this motion was the
Appellants' belief that the District Court's Decision and Order failed to address several
dispositive arguments. Appellants stated that this case concerns the issue of whether Rule
42.2.701, ARM, is an invalid infringement on the public's statutory and constitutional
right to examine government records. Appellants went on to state that they were not
challenging whether they were entitled to receive the information at issue; they were
simply challenging the rule itself on constitutional and statutory grounds. Appellants
argued, inter alia, that Rule 42.2.701, ARM, is facially unconstitutional because it fails to
provide for a case-by-case determination concerning whether the demands of individual
privacy clearly exceed the merits of public disclosure.

¶16 The Department opposed the Motion for Reconsideration on the grounds that
Appellants' motion was not allowed under the Montana Rules of Civil Procedure; if
allowed by Rules 59 or 60, M.R.Civ.P., it was time-barred; and Appellants had failed to
provide the District Court with any new reasoning or legal precedent upon which the
District Court should alter its decision. The Department also asserted that the District
Court had previously determined Rule 42.2.701, ARM, to be valid as a matter of law. The
Department further argued that the requisite balancing test was the foundation for the rule.

¶17 After the Motion for Reconsideration had been fully briefed by the parties, the District
Court entered an Order denying the motion based upon its conclusion that the motion was

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untimely and without merit. At a subsequent scheduling conference, the District Court set
the evidentiary hearing concerning the issue of the taxpayers' subjective right of privacy
for August 27, 1998.

¶18 Prior to the evidentiary hearing, the parties submitted proposed findings of fact and
conclusions of law. In addition, the District Court entered a Pre-Trial Order, which was
approved by the parties. Several witnesses testified at the hearing, including the former
director of the Department during the time Rule 42.2.701, ARM, was promulgated; the
former bureau chief for the Natural Resource Corporation Taxation Division of the
Department; a certified public accountant; representatives from several Montana coal
companies; and the Montana bureau chief for the Associated Press. At the conclusion of
the hearing, the District Court offered the parties the opportunity to submit supplemental
proposed findings of fact and conclusions of law within 30 days, which the parties did.

¶19 On December 29, 1998, the District Court entered its Findings of Fact, Conclusions of
Law and Order awarding judgment to the Department. The District Court found that the
Department adopted Rule 42.2.701, ARM, after balancing the public's right to know with
the coal producers' right to privacy. In addition, the District Court concluded that the coal
severance taxpayers had, and continue to have, a reasonable expectation of privacy with
respect to the information they provide to the Department, which exceeds the public's right
to know. Appellants appeal from the District Court's Findings of Fact, Conclusions of Law
and Order awarding judgment in favor of the Department.

STANDARD OF REVIEW

¶20 "We review a district court's conclusions of law to determine whether they are
correct." Brady v. Montana Dept. of Justice, 1999 MT 153, ¶ 6, 295 Mont. 75, ¶ 6, 983
P.2d 292, ¶ 6.

ISSUE 1

¶21 Whether Rule 42.2.701, ARM, violates Article II, Section 9 of the Montana
Constitution?

¶22 Appellants contend that Rule 42.2.701, ARM, directly conflicts with Article II,
Section 9 of the Montana Constitution in that it fails to balance the competing interests of
privacy and public disclosure on a case-by-case basis. Appellants also contend that the

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rule contains a facially unconstitutional presumption in favor of confidentiality. At oral
argument, the Department alleged that its adoption of Rule 42.2.701, ARM, was premised
on the balancing of the taxpayers' right to privacy and the public's right to know.

23 ¶Rule 42.2.701, ARM, reads as follows:

PUBLIC ACCESS TO TAXPAYER INFORMATION

(1) The Montana Constitution guarantees individuals and corporations the right to
privacy in Article II, Section 10. Under this provision of the Constitution, and in
conjunction with various statutes in the Montana Code Annotated, the department
will protect the privacy interests of taxpayers with regard to information they submit
to the department.

(a) A protected privacy interest exists when a person expects the information
they submit to remain private and that expectation of privacy is reasonable by
societal standards.

(b) It is generally accepted that most taxpayers have a reasonable expectation
that income and financial data and other information provided to the
department will remain private, unless courts or the legislature have
specifically recognized that the information is subject to public disclosure.

(2) The Montana Constitution guarantees the public's right to know. The right-to-
know provision of the Montana Constitution is intended to keep the public informed
about the workings of state government. The public's right to know must be
balanced against the individual right of privacy.

(3) Information, such as tax returns, that taxpayers are required to provide to the
department, and department-prepared documents, such as audit reports, that identify
taxpayers are confidential, unless it is clear that a taxpayer does not have a protected
privacy interest in information found in the documents.

(4) Documents prepared by the department that do not identify taxpayers and their
associated private information are not confidential and will be released.

(5)(a) The department considers the following to be confidential information based
on the Montana Constitution:
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(i) tax returns, certain reports and audits for natural resource taxes such as net
and gross proceeds and severance taxes;

(ii) tax returns, certain reports and audits for miscellaneous taxes such as
cigarettes, lodging facilities, and dangerous drugs; and

(iii) tax returns, certain reports and audits of alcoholic beverage taxes.

(b) The department considers the following to not be confidential information based
on the Montana Constitution:

(i) information describing the physical characteristics of property or other
information which is used to determine values for property tax assessments.
Examples include personal property reports, real property record cards, and
allocation reports;

(ii) information the department obtains from public sources rather than the
taxpayer; and

(iii) statistical compilations of confidential information which do not identify
sensitive information about taxpayers. Examples of these include oil and gas
quantity reports provided to the board of oil and gas conservation, coal
production reports which do not identify taxpayers, and masked individual
income tax information which does not identify taxpayers.

(c) The list of taxes is not intended to be all inclusive but simply provide examples
of information which is not covered by a specific statute. Statutes which require
confidentiality are presumed constitutional.

(6) Confidential information must be provided to the taxpayer themselves, or to their
designee. Requests for this information must be submitted by the taxpayer in writing to the
department. These requests will be maintained in the files of the department.

(History: Sec. 15-1-201, MCA; IMP, Montana Constitution, Art. II, Sections 8, 9, & 10;
Attorney General Opinions 38-59 and 39-17; Secs. 2-4-501; 2-4-623; 2-6-109; 15-7- 308;
15-30-303; 15-31-507; 15-35-205; 15-38-109; 15-50-205; 15-50-206; 15-50-207; 16-3-

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211; 16-3-404; 16-11-120; and 16-11-122, MCA; NEW, 1993 MAR p. 2811, Eff.
11/25/93.)

¶24 The public's right to know is contained in Article II, Section 9 of the Montana
Constitution, which states:

Right to know. 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.

This constitutional provision generally requires information regarding state government to
be disclosed to the public, except in cases where the demand of individual privacy clearly
exceeds the merits of public disclosure. Hence, the right to know is not absolute. See
Missoulian v. Board of Regents (1984), 207 Mont. 513, 529, 675 P.2d 962, 971; see also
Order Selecting the Fifth Member of the Montana Districting and Apportionment
Commission (Aug. 3, 1999) (Regnier, J., specially concurring). It requires a balancing of
"the competing constitutional interests in the context of the facts of each case, to determine
whether the demands of individual privacy clearly exceed the merits of public disclosure."
Missoulian, 207 Mont. at 529, 675 P.2d at 971 (emphasis added).

¶25 Based on the assumption that most taxpayers have a reasonable expectation that
income and financial information provided to the Department will remain private, the
Department declared such information, including tax returns, to be confidential, unless it
is clear that the taxpayer does not have a protected privacy interest in the information. See
Rule 42.2.701(3), ARM. Information required to be provided to the Department by
taxpayers, including tax returns, as well as some Department-prepared documents that
identify taxpayers are deemed confidential under Rule 42.2.701, ARM. This is in direct
conflict with the public's right to know contained in Article II, Section 9 of the Montana
Constitution.

¶26 Rule 42.2.701, ARM, presumes that all taxpayers have a properly-recognized,
constitutionally-protected right to privacy in the information they provide to the
Department, which prevails over the merits of public disclosure. In order to determine
whether the demands of individual privacy clearly exceed the merits of public disclosure,
a balancing of the public's right to know with the individual's right to privacy in the
context of the facts of each case is required.

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¶27 As conceded by the Appellants in their reply brief in support of their motion for
summary judgment, if Rule 42.2.701, ARM, were struck down as facially unconstitutional
the Department could, nevertheless, withhold some or all of the requested information if it
properly determined in the context of the facts of each particular case that the taxpayer's
right to privacy outweighed the merits of public disclosure. For instance, the type of
taxpayer involved (i.e., individual, corporate, partnership, etc.), the source of the
information provided by the taxpayer, and the public's interest in the information provided
are only some of the factors that will need to be considered when determining whether a
taxpayer's right to privacy outweighs the public's right to know.

¶28 Conversely, Rule 42.2.701, ARM, declares information to be confidential on a
wholesale basis for all taxpayers without balancing the taxpayers' right to privacy with the
public's right to know. As a result, we conclude that Rule 42.2.701, ARM, is
unconstitutional on its face.

¶29 In light of our determination that Rule 42.2.701, ARM, is unconstitutional on its face,
we need not address whether the rule violates the public records statutes. Therefore, Issue
3 will not be addressed.

ISSUE 2

¶30 Whether the Department may declare coal severance tax information confidential
when it had been disclosed for a number of years prior to the promulgation of Rule
42.2.701, ARM?

¶31 Appellants assert that there can be no reasonable expectation of privacy in the
information at issue in this case, the average contract sales price for each mine and the
taxes paid by each mine. Due to the fact that this information had been made public for
nearly 20 years, Appellants argue that this is not information in which members of the coal
industry could have an actual expectation of privacy that society is willing to recognize as
reasonable.

¶32 The Department, on the other hand, asserts that the District Court correctly
determined that the coal severance taxpayers had, and continue to have, a constitutionally
protected right of privacy in the information provided to the Department. The Department
also asserts that there is sufficient evidence in the record to support the District Court's
findings of subjective and objective expectations of privacy on the part of the coal

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severance taxpayers in the information at issue.

¶33 Upon denying the parties' cross-motions for summary judgment, the District Court
conducted an evidentiary hearing to determine whether the mine operators had a
reasonable expectation of privacy in the information provided to the Department and, if
so, whether there was a compelling state interest requiring disclosure of that information.
Several coal company managers and officers, a certified public accountant, and a bureau
chief for the Associated Press testified at the hearing. Based on the evidence and
testimony presented, the District Court concluded that the coal severance taxpayers
established a subjective and objective expectation of privacy with respect to the
information provided to the Department in their coal severance tax returns. In addition, the
District Court found that the taxpayers' expectation of privacy outweighed the public's
right to know.

¶34 The fundamental issue presented by Appellants is whether the District Court erred
when it determined that the coal severance taxpayers had, and continue to have, a
constitutionally protected privacy interest in the information they provide to the
Department. The issue of whether corporations or other business entities have a right of
privacy pursuant to Article II, Section 10 of the Montana Constitution has not been raised
by the parties on appeal. Therefore, for purposes of addressing this issue we will assume,
without agreeing with the District Court, that corporations have a right of privacy.

¶35 In discussing the adoption and scope of the privacy clause in Montana Human Rights
Division v. City of Billings (1982), 199 Mont. 434, 440, 649 P.2d 1283, 1286, we noted
that the Montana Constitution provides more privacy protection than the United States
Constitution. To determine whether a constitutionally protected privacy interest exists
under the Montana Constitution, we apply the following two-part test: "whether the person
involved had a subjective or actual expectation of privacy and whether society is willing to
recognize that expectation as reasonable." Great Falls Tribune Co. v. Day, 1998 MT 133,
¶ 20, 289 Mont. 155, ¶ 20, 959 P.2d 508, ¶ 20.

¶36 Pursuant to § 15-35-104, MCA, each coal mine operator is required to compute the
severance tax due on each quarter-year's worth of production. Each quarterly statement
must include the amount of tonnage produced, the average Btu value of the production, the
contract sales price received for the production, and any other information the Department
may require. See § 15-35-104, MCA.

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¶37 Prior to the adoption of Rule 42.2.701, ARM, in 1994, coal mine operators had no
assurance that the information submitted pursuant to § 15-35-104, MCA, would be kept
confidential. Unlike the chapters in Title 15 of the Montana Code Annotated involving
individual income tax and corporate license or income tax, the chapter involving the coal
severance tax does not contain a statutory provision declaring tax records to be
confidential. See §§ 15-30-303 and 15-31-511, MCA.

¶38 The record reflects that prior to 1994, the Department disclosed certain coal
production information in the form of a quarterly coal severance collection summary.
Despite this, the testimony of the mine managers and officers at the evidentiary hearing
indicated that they were not aware this information had been disseminated by the
Department prior to 1994 and that if they had known they would have objected to it.

¶39 However, none of the coal mine managers or officers testified that prior to 1994 they
expected the coal severance tax information submitted pursuant to § 15-35-104, MCA, to
be kept confidential. They did testify that they would like this information to remain
confidential because of the competition in the coal industry today, the problems it might
cause with their customers who are paying more than the average price, and the possibility
that the information could give their competitors an unfair advantage.

¶40 In response to the coal mine operators' economic concerns, we note that in Great Falls
Tribune Co., we concluded that economic advantage is not a privacy interest. Great Falls
Tribune Co., ¶ 29. Furthermore, we fail to see how a competitor could determine the
contract price of coal for a specific contract from the average contract sales price or the
amount of severance tax paid by each mine. The information published before and after
the adoption of Rule 42.2.701, ARM, does not reveal the number of contracts a coal mine
has nor the type of contracts (i.e., short- or long-term or both). Several factors impact the
price of coal paid by a purchaser, including the quality of the coal being purchased,
whether the purchaser has a short- or long-term contract, and the transportation costs for
delivery of the coal.

¶41 Given the fact that the Department did not restrict access to this information for nearly
20 years and that the coal mine operators within a highly regulated industry were given no
assurances that this information would be kept confidential nor did they request that it be
kept confidential, we conclude that prior to 1994 the coal mine operators within Montana
did not have an actual or subjective expectation of privacy in the information submitted to
the Department pursuant to § 15-35-104, MCA.

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¶42 Following the adoption of Rule 42.2.701, ARM, the coal mine operators could assert a
subjective expectation of privacy in the information provided to the Department pursuant
§ 15-35-104, MCA. However, a subjective expectation of privacy based on a facially
unconstitutional rule is not one society would be willing to recognize as reasonable. We
also note that this information had routinely been made available for nearly 20 years prior
to the adoption of Rule 42.2.701, ARM. As a result, neither prong of the two-part privacy
test has been met, ruling out the existence of a constitutionally protected privacy interest.

¶43 Appellants also assert that they should be awarded their reasonable attorney fees and
costs incurred in bringing this action in accordance with § 2-3-221, MCA. Section 2-3-
221, MCA, reads as follows:

Costs to plaintiff in certain actions to enforce constitutional right to know. A
plaintiff who prevails in an action brought in district court to enforce his rights
under Article II, section 9, of the Montana constitution may be awarded his costs
and reasonable attorneys' fees.

We have already concluded that Rule 42.2.701, ARM, is unconstitutional on its face
because it does not balance the public's right to know with the taxpayers' right to privacy
on a case-by-case basis in violation of Article II, Section 9 of the Montana Constitution.
Hence, the Appellants have performed a service for the citizens of the State by enforcing a
portion of our Constitution that would otherwise be violated. Due to the public benefits
gained by Appellants' efforts, the cost of the litigation should be spread among its
beneficiaries. See Associated Press v. Board of Pub. Educ. (1991), 246 Mont. 386, 393,
804 P.2d 376, 380. Therefore, we remand this matter to the District Court pursuant to § 2-
3-221, MCA, for an award of costs and reasonable attorney fees incurred by Appellants in
bringing this action, including the fees and costs incurred on appeal.

¶44 Reversed and remanded.

/S/ JIM REGNIER

We Concur:

/S/ J. A. TURNAGE

/S/ WILLIAM E. HUNT, SR.

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/S/ TERRY N. TRIEWEILER

/S/ KARLA M. GRAY

Justice James C. Nelson specially concurs.

Introduction

¶45 I concur in the result of our opinion. I would, however, reach the issue of whether the
corporate coal company taxpayers and other non-human entities in this state enjoy the
right of individual privacy which is guaranteed under Article II, Section 10, of Montana's
Constitution and which is excepted from the right-to-know provision, Article II, Section 9.
Having reached this issue, I would hold that only individuals, not corporations and other
non-human entities, enjoy this constitutional right.

¶46 It is necessary that we address this important issue for two reasons. First, the trial
court's decision was premised on a legal conclusion--i.e., that the corporate taxpayers had
and continue to have a reasonable expectation of privacy, guaranteed by Article II, Section
10, of Montana's Constitution, which must be balanced against and, as it turned out here,
trumps the public's right to know, guaranteed under Article II, Section 9. While the court
was following Montana case law as it presently exists, the legal underpinnings of the
court's basic premise--that corporations enjoy a constitutionally-guaranteed right of
privacy--is wrong, as I will demonstrate in this separate opinion.

¶47 Second, the Department's regulation, which we have now declared facially
unconstitutional, likewise presupposes that non-human taxpayers are guaranteed the right
to individual privacy under Montana's Constitution. It thus logically follows that when the
Department adopts a new version of this regulation, presumably the replacement rule will
be bottomed in this same fundamental, but legally flawed, premise. Just as important,
while we have declared that the Department's regulation is facially unconstitutional for
failing to incorporate an Article II, Section 9, balancing test, such a test, even if included
in an amended rule, will be meaningless as to non-human taxpayers. These taxpayers have
no constitutional privacy right to "balance" against the public's right to know.

¶48 Since the rule is the focus of our decision, I begin there.

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I.

¶49 As our opinion and the plain language of the Department's regulation clearly
demonstrate, Rule 42.2.701, ARM, purports to deny public access to taxpayer information
because "[t]he Montana Constitution guarantees individuals and corporations the right to
privacy in Article II, Section 10." Rule 42.2.701(1), ARM (emphasis added). Indeed, it is
"[u]nder this provision of the Constitution . . ." in conjunction with Montana statutes, that
the Department has determined it "will protect the privacy interests of taxpayers." Rule
42.2.701(1), ARM. Further, it will balance the public's right to know against the individual
right of privacy, and that it will opt for confidentiality "unless it is clear that a taxpayer
does not have a protected privacy interest in information found in the documents." Rule
42.2.701(2) and (3), ARM. Finally, grounding its determination in "the Montana
Constitution," the Department then goes on to classify by way of example certain
information as confidential and other information as not confidential. Rule 42.2.701(5),
ARM.

¶50 While, as I will explain in more detail later, individuals are clearly guaranteed the
right of privacy set out in Article II, Section 10, of Montana's Constitution (and excepted
from the right-to-know provision, Article II, Section 9), it is equally clear that this right is
constitutionally guaranteed only to individuals and not to other non-human entities--for
example, corporations, firms, partnerships, associations, organizations, institutions, and
governments, their agencies and subdivisions.

¶51 Article II, Section 10, guarantees "the right of individual privacy;" likewise, the
Article II, Section 9 exception to the public's right to know applies only with respect to
matters involving "individual privacy" (emphasis added). While non-human entities may
enjoy confidentiality in some of their property interests under Montana statutory law--the
Uniform Trade Secrets Act, Title 30, Ch. 14, part 4, serves as one example--and under
some sections of the federal and state constitutions--the protection against the "taking" of
private property for public use without just compensation, comes to mind--these rights of
confidentiality are not grounded in "privacy" under Article II, Section 10, nor are such
rights excepted from public disclosure by reason of the individual privacy provision of
Article II, Section 9. The privacy protection afforded by Article II, Sections 9 and 10, is
limited to individuals--i.e, to human beings.

¶52 It is for this reason that the Department's present regulation is fundamentally flawed in
lumping human and non-human taxpayers together for constitutional privacy purposes.

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Notwithstanding, whatever rights of confidentiality the two different classes of taxpayers
enjoy in their tax filings with the Department, as a matter of law, corporations and other
non-human taxpayers may not look to Article II, Section 10, and Article II, Section 9, for
protection of those filings from public disclosure.

¶53 That the Department failed to recognize this legal distinction in drafting its regulation
is understandable. The Department, no doubt, took its lead from this Court which,
unfortunately, has been similarly indiscriminate in its jurisprudence and interpretation of
Montana's constitutional right to know and right of individual privacy.

¶54 Therefore, and with that in mind, I will begin with some general observations about
the Constitution itself.

II.

¶55 If it is anything, the 1972 Constitution of Montana and, in particular, its Article II
Declaration of Rights is a compact with the people. The Declaration of Rights serves as a
shield to protect each individual from the excesses of government, from the tyranny of the
majority, and from the sorts of abuses perpetrated by persons, firms, corporations,
associations, organizations, and institutions that, in pursuit of their own interests and
agenda, effectively would deprive the people of those things essential to their humanity
and to their lawful individual pursuits. As we observed in Armstrong v. State, 1999 MT
261, 296 Mont. 361, 989 P.2d 364:

Montana's Constitution, and especially the Declaration of Rights, is not simply a
cook book of disconnected and discrete rules written with the vitality of an
automobile insurance policy. Rather, our Constitution, and in particular its
Declaration of Rights, encompasses a cohesive set of principles, carefully drafted
and committed to the abstract ideal of just government. It is a compact of
overlapping and redundant rights and guarantees.

Armstrong, ¶ 71 (citation omitted).

¶56 In the words of the framers, Article II of the Constitution, contains the "fundamental
principles and rights guaranteed to the people by their government." Montana
Constitutional Convention, Vol. II, at 579 (emphasis added). Indeed, from the context of
the language used and, just as often, from the plain language itself, it is clear that many of

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the rights set out in Article II are rights guaranteed to human beings and not to non-human
entities.

¶57 To be specific, Article II, Section 2, provides that "[t]he people" have the exclusive
right to govern themselves. Captioned "Inalienable rights," Article II, Section 3, while
using the broader term "persons" nonetheless, in context, refers to human beings: "All
persons are born free . . . ." Only human beings are "born free."

¶58 Article II, Section 4, is even more explicit. Captioned "Individual dignity," this
section guarantees that "[t]he dignity of the human being is inviolable. No person shall be
denied equal protection of the laws." And to drive this "people" right home, this same
section explicitly prohibits discrimination against any person by the state "any person,
firm, corporation, or institution . . . in the exercise of his civil or political rights on account
of race, color, sex, culture, social origin or condition, or political or religious ideas."
Again, only human beings share attributes of race, color, sex, culture, and social origin or
condition, and only human beings can be discriminated against on the basis of these
attributes. In guaranteeing persons equal protection of the laws and in protecting them
against discrimination based on human-only conditions, the framers specifically prohibited
both human and non-human entities from engaging in discriminatory conduct. Again, in
context, "persons" refers to human beings.

¶59 Article II, Section 6, guarantees freedom of assembly to "[t]he people." Article II,
Section 7, guarantees freedom of speech, expression, and the press to every "person"--
person being qualified by the pronoun "he" which can, again, only refer to human beings.
Article II, Section 8, guarantees the right of public participation to "[t]he public." Article
II, Sections 9 and 10, will be discussed in more detail later but are similarly worded to
refer only to human beings.

¶60 Article II, Section 11, provides protection from unreasonable searches and seizures to
"[t]he people." Any "person" has the right to bear arms in defense of "his" home, person
and property under Article II, Section 12. Article II, Section 15, guarantees the rights of
adults to "persons" under age 18. Article II, Section 16, guarantees open courts, a speedy
remedy and full legal redress to every "person" for injury to "person, property, or
character." Again, the word person is qualified by "his" indicating that the rights
guaranteed are "people" rights.

¶61 Similarly, Article II, Section 17, guarantees due process of law to "person[s]" and

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Article II, Section 21, makes the guarantee of bail to "[a]ll persons." Article II, Section 23
protects "person[s]" from being imprisoned to secure testimony, except as specified. The
rights of "persons" accused of crimes set out in Article II, Section 24, are qualified by the
pronoun "him" or "his." Article II, Section 25, guarantees that "[n]o person shall be
compelled to testify against himself . . . [nor] again put in jeopardy for the same offense
previously tried in any jurisdiction." Article II, Section 27, provides protection to "person
[s]" against imprisonment for debt.

¶62 Article II, Section 30, protects "person[s]" from being charged and tried for treason
except as specified. This section also protects the estates of suicides--again, suicide being
uniquely human. Article II, Section 34, reserves unenumerated rights to "the people." And,
finally, Article II, Section 35, allows special consideration to servicemen, servicewomen,
and veterans.

¶63 There are, however, a few notable exceptions to the "people" orientation of the
Declaration of Rights. Article II, Section 26, guarantees the right of a jury trial "to all."
This section also refers to the "parties" which can, of course, include human beings and
non-human legal entities as well. Similarly, Article II, Section 29, prevents private
property from being taken for public use without just compensation to the "owner" without
qualification as to whether the owner is human or non-human. Likewise, Article II,
Section 31's prohibitions against ex-post facto laws, irrevocable grants of special
privileges, and franchises or immunities, and its protection of contractual obligations is not
limited to human beings nor is Article II, Section 32's prohibition against quartering
soldiers in a house without the consent of the "owner."

¶64 I make the point that, in many respects, the Declaration of Rights is a guarantee of
rights to the people--i.e., to human beings--because, in our task of interpreting and
applying the various rights of Article II in actual cases and controversies, we occasionally
lose sight of this fundamental principle. We fail to ask some threshold questions. Whose
right is this? Who has standing to assert this right? Is this a right which protects just
people or is this right also enjoyed by non-human entities, as well? With only a result in
mind and often driven by the issues as framed by the parties or the trial court's analysis; or,
sometimes, to resolve some perceived, though false conflict, or to "balance" theoretically
competing rights, we, on occasion, grant wholesale to entities other than the people,
fundamental Article II rights that such non-human entities are not entitled to enjoy under
the plain language of the section or sections at issue.

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¶65 I make this criticism being the first to admit that I have signed some of these opinions.
Moreover, I acknowledge that the U. S. Supreme Court has, in certain circumstances,
interpreted the Federal Constitution's Bill of Rights and amendments so as to include
corporations within the term "persons." See, e.g, First National Bank of Boston v. Bellotti
(1978), 435 U.S. 765, 780 n.15, 98 S.Ct. 1407, 1418, 55 L.Ed.2d 707 (stating that
"corporations are person within the meaning of the Fourteenth Amendment" and citing
Santa Clara County v. Southern Pacific R. Co. (1886), 118 U.S. 394, 6 S.Ct. 1132, 30 L.
Ed. 118). But see United States v. White (1944), 322 U.S. 694, 698-99, 64 S.Ct. 1248,
1251, 88 L.Ed. 1542 (identifying Fifth Amendment privilege against self-incrimination as
"essentially a personal one, applying only to natural individuals" and cannot be utilized by
or on behalf of "any organization, such as a corporation"); California Bankers Ass'n v.
Shultz (1974), 416 U.S. 21, 65-67, 94 S.Ct. 1494, 1519-20, 39 L.Ed.2d 812 (denying
constitutional right of privacy to corporation).

¶66 Furthermore, I recognize that the decisions of this Court for more than a century have
tracked with federal precedent regarding the inclusion of corporations as "persons" under
Montana's due process clause. See Helena Consol. Water Co. v. Steele (1897), 20 Mont. 1,
9, 49 P. 382, 384 (quoting Michigan court decision that "[t]he constitutional principle that
no person shall be deprived of property without due process of law applies to artificial
persons as well as natural . . ."); Montana Power Co. v. Public Service Com'n (1983), 206
Mont. 359, 364, 671 P.2d 604, 607 (stating that corporations are included within the
definition of "persons" for purposes of Article II, Section 4 (equal protection) and Article
II, Section 17 (due process), as well as the Fourteenth Amendment). See also accord,
GBN, Inc. v. Montana Dept. of Revenue (1991), 249 Mont. 261, 815 P.2d 595; D & F
Sanitation Service v. City of Billings (1986), 219 Mont. 437, 713 P.2d 977; and Tipco
Corp., Inc. v. City of Billings (1982), 197 Mont. 339, 642 P.2d 1074.

¶67 It is not my purpose here to revisit these decisions--there may or may not be legally
sufficient reasons why "persons" in one section of Article II includes only natural persons,
but in another includes both natural and non-natural persons. I only suggest that in
resolving cases we sometimes paint the protections afforded by the Declaration of Rights
with a broad brush and with little analysis of whether the right or rights at issue were
meant to protect only human beings--in furtherance of the people orientation of Article II--
or, more broadly, both human and non-human entities alike.

¶68 The case at bar has brought this observation into glaring focus. It is for this reason I
conclude that we must address the issue of judicially-created, constitutionally-guaranteed

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"corporate privacy," or, in default of doing so, simply add further support to an already
substantial body of flawed precedent.

¶69 Again, it is not my purpose here to take this argument beyond Article II, Sections 9
and 10. I am hopeful, however, that having raised this issue here, future cases will permit
us the opportunity to address this argument in a majority opinion not only as to Sections 9
and 10, but, when appropriate, in other Article II contexts, as well.

¶70 That said, I turn next to our case law, for that is where this problem began.

III.

¶71 The notion that corporations are guaranteed privacy under Article II, Section 9 (and,
therefore, necessarily, under Section 10), was first introduced into Montana law in
Mountain States Tel. & Tel. Co. v. Department. of Pub. Serv. Reg. (1981), 194 Mont. 277,
634 P.2d 181. There, the utility sought to preserve the confidentiality of claimed trade
secrets and proprietary and confidential information in a rate proceeding before the Public
Service Commission (PSC). The PSC--correctly in my view--ruled that a corporation is
not entitled to the protection of the individual privacy exception under Article II, Section
9, of Montana's Constitution and, therefore, denied Mountain Bell's motion for protective
order.

¶72 In a proceeding for judicial review and declaratory relief, the District Court, the Hon.
Gordon Bennett, agreed with the PSC, but concluded that other provisions of Article II
were available to protect the utility's legitimate property interests. Moreover, the trial court
observed that, even despite the utility being excluded from the protection of the privacy
exception to Article II, Section 9, the PSC could still have issued a protective order to
preserve Mountain Bell's other constitutional rights in its confidential and proprietary
information. See Mountain States, 194 Mont. at 280-81, 634 P.2d at 183-84.

¶73 On appeal, we first determined that a trade secret is constitutionally protectable
property. Mountain States, 194 Mont. at 283-84, 634 P.2d at 185-86. Then, without
reference to, much less any analysis of, the Constitutional Convention (Con-Con) history
leading to the framers' inclusion of the right of individual privacy in Article II, Sections 9
and 10, we concluded that since an individual might claim a constitutional privacy interest
in a trade secret and, thus, take advantage of the right to know exception in Article II,
Section 9, that "a corporate owner of a trade secret is entitled to the same exception."

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Mountain States, 194 Mont. at 284, 634 P.2d at 186. We stated:

[T]he provisions of our state constitution and statutes, when applied to deny the
protective order in this case, have the effect of violating, as applied, the equal
protection clause of the Fourteenth Amendment of the federal constitution, and the
due process clauses of the state and federal constitutions, [leaving] for decision to
some other case and time whether the remaining constitutional arguments of
Mountain Bell have validity.

Mountain States, 194 Mont. at 283, 634 P.2d at 185.

¶74 We also stated that:

Our state constitution also guarantees due process, 1972 Mont. Const., Art. II, § 17,
and equal protection of the laws, Mont. Const., Art. II, § 4. The application by the
PSC of Montana's right to know provision in this instance created a conflict of that
provision with due process and equal protection clauses of the state constitution.

Mountain States, 194 Mont. at 288, 634 P.2d at 189.

¶75 The Mountain States Court correctly asserted that the federal due process rights of
Mountain Bell may very well have been at stake, in that the corporation was being
deprived of its property--trade secrets--without due process. The Court could have and
should have stopped there. We should have turned strictly to those provisions of the
federal constitution and disposed of the case on that basis.

¶76 We went further, however. We noted that "the due process clauses of the Fifth and
Fourteenth Amendments to the U.S. Constitution also conflict with Montana's right to
know provision as applied here by the PSC." Mountain States, 194 Mont. at 288, 634 P.2d
at 189. We also concluded:

By holding that the due process clause of the Fourteenth Amendment and the due
process clause of the Fifth Amendment require us to provide protection to Mountain
Bell for its trade secrets to the extent not necessary for regulation, we confirm the
police power of the state to regulate utilities, we resolve the seeming internal
conflict in our state constitution created by the PSC in the application of the right to
know provision, and we pay due accord to the due process requirements of the U. S.

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Constitution.

Mountain States, 194 Mont. at 288-89, 634 P.2d at 189.

¶77 The problem with this approach was that we did not need to find a conflict between
the Fifth and Fourteenth Amendments and Article II, Section 9, to resolve the case on
federal due process grounds. We needed only to recognize that the privacy right included
in this latter section did not provide protection to non-human entities; but that, by virtue of
the Federal Constitution's Article III "Supremacy Clause," Mountain Bell's trade secrets
were, nevertheless, clearly protected under the federal constitution. We could have
disposed of the case by simply remanding for entry of an appropriate protective order
grounded in due process.

¶78 Nevertheless, since the issue as framed by the PSC and Mountain Bell focused solely
on the right of privacy under Article II, Section 9, we apparently felt compelled to resolve
the case on that basis. Our vehicle to accomplish this, as already noted, was to find a
conflict between Mountain Bell's federal and state due process and equal protection rights
and the right of privacy in Article II, Sections 9 and 10. See Mountain States, 194 Mont at
288, 634 P.2d at 188-89.

¶79 Contrary to our analysis, however, there existed no irreconcilable conflict between
Article II, Section 9, and either constitutional due process or equal protection. Article II,
Sections 9 and 10, protect only individual privacy interests. Neither section protects
"corporate privacy." More importantly, nothing in Article II, Section 9, requires disclosure
of proprietary or confidential information where that data is protected from disclosure
elsewhere in either the federal or state constitution. The right-to-now provision of Article
II, Section 9, like other constitutional rights, is not absolute. "It can be properly
circumscribed when the right or interest against which it competes is weighty or
compelling." State ex rel. Smith v. District Court (1982), 201 Mont. 376, 383, 654 P.2d
982, 986.

¶80 Instead of relying strictly on constitutional due process to protect Mountain Bell's
trade secrets, we approached the case strictly as presented and with the mind set that
Article II, Section 9, right to know trumped all other constitutional rights except the right
to individual privacy. We thus created for ourselves a Hobson's choice. Unless we
interpreted Article II, Section 9, so as to grant corporations the same right of privacy that
individuals were constitutionally guaranteed under Article II, Section 10, then the
legitimate corporate property interests of Mountain Bell could not be protected. This

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approach was wrong.

¶81 Indeed, this is the exact opposite of the approach we took in Smith. There we
determined that Article II, Section 9's guarantee was "not absolute" and held that the
public's constitutional right to know did not abrogate the defendant's equally important
constitutional right to a fair trial. Smith, 201 Mont. at 383-385, 654 P.2d at 986-987. See
also State ex rel. the Missoulian v. District Court (1997), 281 Mont. 285, 304, 933 P.2d
829, 841 (determining that the media's Article II, Section 9, right to know and First
Amendment and Article II, Section 7, right to free speech may be restricted to the extent
necessary to protect a defendant's Article II, Section 24, right to the selection of an
impartial jury). In reaching our conclusion in Smith, however, we effectively "balanced"
Section 9 with the First and Fourteenth Amendments, and concluded:

Based upon the Right to Know provision of the Montana Constitution and the right
of access recognized under the First and Fourteenth Amendments to the United
States Constitution, we hold that the public and press may be excluded from a
pretrial suppression hearing only if dissemination of information acquired at the
hearing would create a clear and present danger to the fairness of defendant's trial
and no reasonable alternative means can be utilized to avoid the prejudicial effect of
such information.

Smith, 201 Mont. at 385, 654 P.2d at 987.

¶82 Smith reached the correct result and established that--like all constitutional rights--the
right to know under Article II, Section 9, is not absolute. This right is textually limited by
the right to individual privacy and, as suggested above, may simply not trump, without
more, other constitutionally protected interests. However, I also suggest that unless a
person can establish that a right to a fair trial embodies a privacy interest, Section 9
"balancing" is inappropriate. The right to a fair trial--like the right to due process--is an
entirely separate issue, and the two should be kept separate.

¶83 Had we used the correct approach in Mountain States, we could have protected
Mountain Bell's legitimate trade secret information under the due process provisions of the
federal constitution. More importantly, there would have been no necessity to read into
Article II, Sections 9 and 10, a protection for "corporate privacy" which clearly was
neither supported by the plain language of either section nor--as we shall see--intended by
the constitution's framers.

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¶84 But we did not use the correct approach and, as night follows day, bad decisions
create bad precedents.

¶85The "corporate privacy" issue next came before this Court in Belth v. Bennett (1987),
227 Mont. 341, 740 P.2d 638. That case--an appeal from a decision from the same District
Judge as in Mountain States--involved the State Auditor and Commissioner of Insurance's
refusal to furnish an Indiana resident and magazine editor access to rating reports filed
with her office and prepared by the National Association of Insurance Commissioners
(NAIC) to assist insurance company regulators nationwide. See Belth, 227 Mont. at 343,
740 P.2d at 639-40. The trial court, consistent with its approach in Mountain States ruled,
among other things, that a corporation could not assert the right of privacy exception to
Article II, Section 9, and that, while '"[t]here is a constitutional presumption that all
documents of every kind in the hands of public officials are amenable to inspection,
regardless of legislation, special exceptions [are] made to accommodate the exercise of
constitutional police power and other competing constitutional interests, such as due
process."' Belth, 227 Mont. at 344, 740 P.2d at 640. Again, Judge Bennet had it right.

¶86 Notwithstanding, we summarily reversed the District Court, holding that a
corporation, "as well as a natural person," can assert the right of privacy exception to the
constitutional right to know. Belth, 227 Mont. at 345, 740 P.2d at 640-41 (citing Mountain
States).

¶87 While our ruling simply perpetuated the erroneous approach of Mountain States, the
quoted language suggests another apparent point of confusion in our opinions. In both
Mountain States and in Belth we made the mistake of equating corporations as "persons"
with "natural persons"-- i.e., individuals. It is clear that a corporation is a "person" for due
process and equal protection purposes under federal constitutional law. See Mountain
States, 194 Mont. at 288, 634 P.2d at 188 (citing First Nat. Bank of Boston (1978), 435 U.
S. at 780, 98 S.Ct. at 1418). But it is equally clear, as I will demonstrate later, that a
corporation is not an individual (i.e., a natural person) for privacy purposes. Under the
law, "persons" and "individuals" or "natural persons" are not one and the same. This
important distinction, though evidently overlooked by this Court, was not lost, as we shall
see, on the framers of our state constitution.

¶88 Belth, however, was not the last case to make this mistake. Our decision in PacifiCorp
v. Department of Revenue (1992), 254 Mont. 387, 838 P.2d 914, addressed whether the
Department of Revenue (DOR) could refuse to disclose to the corporate taxpayer

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information about the taxpayer obtained by and from the Multistate Tax Commission
(MTC). DOR sought to assert the MTC's right of "corporate privacy" against PacifiCorp's
right to know in the same fashion that we had allowed the Auditor to assert NAIC's
privacy right in Belth. PacifiCorp, 254 Mont. at 394-95, 838 P.2d at 918.

¶89 As we did in Belth, we simply acknowledged without further question that
corporations enjoy the right to know and the right of privacy protected under Article II,
Sections 9 and 10. We ruled, however, that MTC was not a corporation but was properly
classified as an "instrumentality of state government." Having made that observation we
then went on to state:

PacifiCorp's right to know prevails because no individual or corporate privacy is
involved. Montana, California, and MTC cannot assert the right to privacy. They are
not "individuals" under Montana law--they are government entities.

PacifiCorp, 254 Mont. at 395, 838 P.2d at 918-19.

¶90 Obviously, we were correct in our conclusion that governmental entities are not
"individuals." The point we failed to recognize was that corporations are not "individuals"
either. More importantly, had we not been hamstrung with the erroneous holdings of
Mountain States and Belth confusing the status of corporations as "persons" with
"individuals" (natural persons) and granting corporations rights to individual privacy
under Montana's Constitution, neither DOR nor MTC would have been able to argue that
right in improperly attempting to withhold from the taxpayer the taxpayer's own file.

¶91 Our next case implicating the Mountain States "conflict" between Article II, Sections
9 and 10, came with our decision in Great Falls Tribune Co., Inc. v. Great Falls Pub. Sch.
(1992), 255 Mont. 125, 841 P.2d 502 (Great Falls Tribune I). In that case we ruled the
statutory exception to the open meeting law, § 2-3-203(4), MCA, was unconstitutional
under the right-to -now provision of Montana's Constitution, Article II, Section 9. Great
Falls Tribune I, 255 Mont. at 131, 841 P.2d at 505.

¶92 In doing so we first noted that Article II, Section 9, is "unambiguous and capable of
interpretation from the language of the provision alone." Great Falls Tribune I, 255 Mont.
at 129, 841 P.2d at 504 (citing Great Falls Tribune v. District Court (1980), 186 Mont.
433, 608 P.2d 116; Associated Press v. Board of Education (1991), 246 Mont. 386, 804
P.2d 376). We also rejected the School Board's invitation--grounded in Mountain States--

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to balance the public's right to know under Article II, Section 9, against the Board's Article
X, Section 8, right to control and supervise schools within the district.

¶93 We rejected this argument, for among other reasons, that in Mountain States we
determined that "a corporation's trade secrets were a matter of individual privacy and that
because trade secrets are constitutionally protected property rights, on balance, they
exceeded the merits of full public disclosure." We then summarily disposed of the
argument observing that, in the matter at issue, no individual privacy rights were involved.
Great Falls Tribune I, 255 Mont. at 129-30, 841 P.2d at 505.

¶94 While that statement was correct as far as it went, there were no individual privacy
rights at issue in Mountain States either. The right to individual privacy was no more
constitutionally guaranteed to the Board (or to DOR or MTC in PacifiCorp) than it was to
Mountain Bell in Mountain States or to NAIC in Belth. Quite simply, the focus of the case
should not have been on individual privacy rights. The school board did not have any. The
real issue was whether the public's constitutional right to know would prevail against some
other constitutional right that might arguably have allowed the school board to close its
collective bargaining negotiations. See Great Falls Tribune I, 255 Mont. at 131-139, 841
P.2d at 505-510 (Weber, J., dissenting). While I agree with the result reached by the
majority in Great Falls Tribune I, I cannot agree with its rationale.

¶95 Our next decision, Montana Health Care Ass'n v. Board of Directors (1993), 256
Mont. 146, 845 P.2d 113, needs to be mentioned only because we summarily reaffirmed
that "corporations have a right of privacy." Montana Health Care, 256 Mont. at 151, 845
P.2d at 116 (citing Belth and Mountain States). We concluded that the privacy rights of
employers and employees in payroll and claims-specific information--as asserted by the
State Fund--did not clearly exceed the merits of public disclosure of that information. We
remanded for a Mountain States-type protective order. Montana Health Care, 256 Mont.
at 152, 845 P.2d at 117.

¶96 The "corporate privacy" issue aside, the extent to which actual individual privacy
interests were implicated in the request for the particular information sought cannot be
discerned from our decision. More to the point, however, if there were no individual
privacy interests at risk, then, but for Mountain States and Belth, "corporate privacy"
would not have prevented disclosure of the information.

¶97 Moreover, it is interesting to note that we began our discussion of the privacy issue by

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citing Allstate Insurance Co. v. City of Billings (1989), 239 Mont 321, 325, 780 P.2d 186,
188, for the proposition that "[t]he only limitation on the public's right to receive
information is the constitutional right of privacy." Actually the constitutional right is to
individual privacy and if individual privacy rights were not at issue, then the right to
privacy would not have precluded the State Fund from simply giving the Montana Health
Care Association the information it requested. Again, the notion of "corporate privacy"
created from whole cloth in Mountain States merely served to frustrate and complicate the
public's legitimate right to know.

¶98 Finally, in Great Falls Tribune Co. v. Day, 1998 MT 133, 289 Mont. 155, 959 P.2d
508 (Great Falls Tribune II), we addressed a situation where the Department of
Corrections sought to assert the privacy interests of private vendors in their proposals to
build a private prison against the media's attempt to attend DOC committee meetings
where these proposals were deliberated. Great Falls Tribune II, ¶ 1. In our discussion we
reiterated our previous holding that corporations do have an interest in privacy protected
by the Montana Constitution and that a governmental agency can assert this right on
behalf of a private interest. Great Falls Tribune II, ¶ 21 (citing Belth). We also observed
that, based on Mountain States, the plaintiff Great Falls Tribune had conceded that the
corporate vendors did have a constitutional privacy interest in their trade secrets and that
privacy interest was an exception to the Article II, Section 9, right to know. Great Falls
Tribune II, ¶ 23.

¶99 In that posture we decided the case on privacy grounds determining that the vendors
had no actual expectation of privacy in their proposals, other than trade secrets, and that,
therefore, there was no privacy interest to balance against the public's right to know. We
did, however, reaffirm that corporations have a constitutional privacy interest in trade
secrets under Mountain States. Great Falls Tribune II, ¶ 33.

¶100 Once again, while we decided the case as presented and based on Mountain States
and its progeny, the simple fact is that had Mountain States been decided correctly, the
"corporate privacy" argument would not have been at issue in Great Falls Tribune II. The
vendors' legitimate trade secrets could have been protected from public access under other
provisions of the United States Constitution or, perhaps, under the Montana Constitution,
and we would not have had to engage in privacy analysis as regards the information in the
proposals that were ultimately subject to public inspection. Again, there simply would
have been no "privacy" interest that the vendors or DOC on the vendors' behalf could have
asserted in frustration of the public's legitimate right to know.

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¶101 Given this jurisprudential history of "corporate privacy" in Montana, it is long
overdue that the decisions of this Court return to and give effect to the actual language of
Article II, Sections 9 and 10, and to the framers' intent. My analytical approach requires
that we examine both carefully. Having done so, I suggest that, once and for all, we
dispose of the notion that corporations and entities other than individuals are guaranteed
the right to individual privacy set out in those two sections of Montana's Constitution.

¶102 With that approach in mind, I now examine the plain language of Article II, Sections
9 and 10, and the Con-Con history of each.

IV.

¶103Article II, Section 10, of Montana's Constitution provides:

Right of privacy. 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.

¶104 Article II, Section 9, of Montana's Constitution provides:

Right to know. 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.

¶105 The matter of who was guaranteed this right of privacy under Section 9 came
directly before the framers at the Con-Con with the following exchange:

DELEGATE HELIKER: Mr. Dahood, being an ignorant nonlawyer, what is an
individual?

DELEGATE DAHOOD: What is an individual?

DELEGATE HELIKER: Is it by any chance also a corporation?

DELEGATE DAHOOD: A person can, of course, Dr. Heliker, as you well know, be
defined to include a corporation under the law.

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DELEGATE HELIKER: I know a person can, but can an individual?

DELEGATE DAHOOD: An individual, in my judgment, would not be a
corporation, no.

Montana Constitutional Convention, Vol. V, 1680. Following this discussion the Con-Con
delegates adopted Section 9 in the language set out above. See Montana Constitutional
Convention, Vol. V, at 1669-1680.

¶106 They then proceeded to the discussion of Article II, Section 10, which, at that point
in the proceedings read as follows:

The right of privacy is essential to the well being of a free society and shall not be
infringed without the showing of a compelling state interest.

Montana Constitutional Convention, Vol. V, at 1680. The following discussion then took
place:

DELEGATE CAMPBELL: Mr. Chairman, fellow delegates, the right of privacy is a
right which is not expressly stated in either the United States or the Montana
Constitution. It is our feeling, on the Bill of Rights Committee, that the times have
changed sufficiently that this important right should now be recognized. If I may,
Mr. Chairman, I would like to add an amendment which the committee has made,
and I would like it voted on before I continue. This would be to the--add to Section
10 the right of individual privacy.

***

DELEGATE CAMPBELL: Yes Mr. Chairman, and the committee has unanimously
approved this amendment and would request a vote on it if necessary.

CHAIRMAN GRAYBILL: So many as shall be in favor of adding the word
"individual" so that it reads: "the right of individual privacy", as the committee
wishes to have this matter considered, please say Aye.

Thereupon, the delegates approved this amendment with no dissenting votes. Montana
Constitutional Convention, Vol. V, at 1680-81.

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¶107The discussion continued, however.

DELEGATE BABCOCK: May I ask a question, please? Would this preclude a
corporation made up of family members?

DELEGATE CAMPBELL: It's not--it is intended to protect the individual as we
have described it. We do not feel that a corporation is an individual. It can be
considered a person, but not an individual. We don't think that this would apply in
that area.

¶108 Montana Constitutional Convention, Vol. V., at 1681. Accordingly, from the
foregoing discussion of the delegates at the Con-Con it is clear that they carefully chose
the constitutional right of privacy to be a guarantee applicable to individuals only. They
adopted the language of Article II, Sections 9 and 10, fully aware of and intending that this
right of individual privacy would not apply to corporations.

¶109 Unfortunately, this fundamental point of constitutional history was seemingly lost in
our rush in Mountain States, to judicially grant corporations a constitutional right of
privacy equivalent to that guaranteed to individuals. Nevertheless, it is crystal clear not
only from the plain language of Article II, Sections 9 and 10, but also from the Con-Con
deliberations that the framers never intended that corporations and entities other than
individuals--i.e, human beings--would be guaranteed privacy rights under Montana's
Constitution. That we summarily read such a right into Article II, Section 9, in Mountain
States and that we judicially created from whole cloth the constitutional right of "corporate
privacy" was wholly improper and beyond our authority. See § 1-2-101, MCA (a judge
must not insert into a statute that which is omitted or omit that which is inserted); and
State ex rel. Nelson v. Ninth Jud. Dist. Court (1993), 262 Mont. 70, 79, 863 P.2d 1027,
1032 (stating that this Court employs the same rules of statutory construction in
determining the meaning of a constitutional provision).

¶110 That necessarily leads me to suggest a different approach to cases that involve
privacy interests under Article II, Sections 9 and 10.

V.

¶111 I start from the premise, as demonstrated above, that the protection from disclosure

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under Article II, Section 9, is not available to corporations or any other non-human entity.
This necessarily raises the issue supposedly laid to rest in Montana Human Rights Div. v.
City of Billings (1982), 199 Mont. 434, 649 P.2d 1283, where we determined that a
governmental entity could assert the privacy rights of its employees. If so, does this mean
that all non-human entities may, in similar fashion, vicariously assert individual privacy
rights? For example, may a closely-held corporation assert the privacy interests of its
shareholder-director, and thereby, essentially, assert a corporate right to privacy even
though, as I have set forth here, no such right exists? I suggest that the correct answer
involves the doctrine of "standing."

¶112 In Gryczan v. State (1997), 283 Mont. 433, 942 P.2d 112, a case involving the
constitutional right to privacy under Article II, Section 10, we stated that the following
criteria must be satisfied to establish standing: (1) the complaining party must clearly
allege past, present, or threatened injury to a property or civil right; and (2) the alleged
injury must be distinguishable from the injury to the public generally, but the injury need
not be exclusive to the complaining party. Gryczan, 282 Mont. at 442-43, 942 P.2d at 118
(citations omitted).

¶113 This standard follows the general principles of standing under the federal
constitution, that parties must "rely only on constitutional rights which are personal to
themselves." NAACP v. State of Alabama (1958), 357 U.S. 449, 459, 78 S.Ct. 1163, 1170,
2 L.Ed.2d 1488. Thus, we have regularly denied standing to a party bringing a
constitutional challenge who could not demonstrate that he or she had or would suffer
injury. See Bowen v. McDonald (1996), 276 Mont. 193, 204, 915 P.2d 201, 208; Olson v.
Department of Revenue (1986), 223 Mont. 464, 470-71, 726 P.2d 1162, 1166-67; Stewart
v. Board of County Com'rs (1977), 175 Mont. 197, 203, 573 P.2d 184, 188.

¶114 We followed this legal principle in permitting a municipality to assert the privacy
interests of its employees in Montana Human Rights Div. v. City of Billings. In doing so,
however, we established a questionable rule.

¶115 We permitted the City of Billings in that case to represent the privacy rights of its
employees, whose records it held and wished to protect from disclosure. The records were
sought by the Appellant, Montana Human Rights Division. Following the two-part test,
we reasoned that because the City, as an entity, could potentially suffer economic harm
should it be compelled to release its employees' records--i.e., a lawsuit by its employees--it
too satisfied the requisite "injury" for establishing standing. Montana Human Rights, 199

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Mont. at 443, 649 P.2d at 1288. We followed this rationale in permitting a state entity to
assert the privacy rights of insurance companies in Belth. Similarly, we recently permitted
environmental organizations to assert the rights of their members to a clean and healthful
environment under Article II, Section 3, a provision whose language, in context, affords
rights to natural persons only, similar to the right of individual privacy. See MEIC v.
Department of Envtl. Quality, 1999 MT 248, ¶ 45, 296 Mont. 207, ¶ 45, 988 P.2d 1236, ¶
45.

¶116 The legal principle that affords standing under such circumstances, however, has
nothing to do with the real or potential harm that may befall the entity itself should
individual constitutional rights be violated. Rather, the principle is derived from the
relationship between the entity and the individuals whose rights it seeks to protect. That
the entity may be injured is but one factor, and by no means a decisive one, in determining
whether it should be afforded standing to assert the rights of individuals who are not
named parties. See NAACP, 357 U.S. at 459-60, 78 S.Ct. at 1170. Rather, the focus is on
the nexus between the entity and the individuals whose rights it wishes to represent before
a court. In other words, an entity has standing only to the extent that the individuals
comprising the entity have standing, and the entity need not allege any injury to itself. See
UAW v. Brock (1986), 477 U.S. 274, 281, 106 S.Ct. 2523, 2528, 91 L.Ed.2d 228 (citations
omitted). The entity, under the doctrine of "representational standing," merely serves as an
appropriate vehicle to better assert the rights of individuals.

¶117 "Representational standing" is a species of the standing rule we recently utilized in
Armstrong v. State, where we determined that health care providers have standing to assert
their own rights as well as those of their patients who were not named parties. See
Armstrong v. State, 1999 MT 261, ¶ 13, 296 Mont. 361, ¶ 13, 989 P.2d 364, ¶ 13. Under
the "representational standing" doctrine, as the U.S. Supreme Court has made clear, an
organization or association does not have standing to assert individual rights without
actual injury to individual members. See Sierra Club v. Morton (1972), 405 U.S. 727, 740-
41, 92 S.Ct. 1361, 1369, 31 L.Ed.2d 636. Likewise, the U.S. Supreme Court has
established a stringent test for determining whether there exists a sufficient nexus between
the organization and the individuals. See Hunt v. Washington State Apple Adver. Comm'n
(1977), 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2 383 (requiring that (1)
members must have standing to sue on their own, (2) the interests that the organization
seeks to protect are germane to the organization's purpose, and (3) neither the claim
asserted nor the relief requested requires the participation of individual members in the
lawsuit).

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¶118 The foregoing distinction is critical if this Court eventually determines--as I believe
it must--that the term "individual," under Article II, Sections 9 and 10, excludes
corporations and all other non-human, non-natural-person entities. If we do so, then the
principle that some entities, including corporations, may have standing to assert the
privacy rights of individuals must be clearly delineated. Thus far in our jurisprudence, as
evidenced by Montana Human Rights Div. v. City of Billings, a sound, workable rule has
not been set forth.

¶119 In accordance with the foregoing general principles articulated in federal case law, I
suggest the following standard for establishing representational standing to assert
individual privacy rights pursuant to Article II, Sections 9 and 10. First, the entity must be
able to establish the individual's or individuals' standing under the standard set forth in
Gryczan; second, the entity must be able to show that its relationship with the individual
or individuals is one that protects those privacy interests as a regular function of its
policies, obligations, or duties; and third, the entity must demonstrate that the remedy
sought will inure to the benefit of those individuals who have or potentially will suffer
injury. This standard would strike an appropriate balance between the federal standard set
forth in Hunt, and our own precedent where representational standing has been afforded
but not identified as such. See generally Warth v. Seldin (1975), 422 U.S. 490, 511-518,
95 S.Ct. 2197, 2211-15, 45 L.Ed.2d 343; Greater Cincinnati Coalition for the Homeless v.
City of Cincinnati (6th Cir. 1995), 56 F.3d 710, 717-18; Legal Aid Society of Hawaii v.
Legal Services Corp. (9th Cir. 1998), 145 F.3d 1017, 1030-31.

¶120 By taking the "individual-means-individual" approach to Montana's Constitution as a
first step, and then addressing the issue of standing as a second step, Mountain States and
its progeny can be viewed through a much clearer lens. For example in PacifiCorp v.
Department of Revenue (1992), 254 Mont. 387, 838 P.2d 914, the messy analysis--i.e., the
corporation's right to know prevails because no individual or corporate privacy is
involved, since MTC and DOR are government entities--could have been swept aside and
replaced with the following analysis: First: were an individual's or "natural person's"
privacy rights at issue due to the potential disclosure? If yes, then did MTC or the DOR
have a sufficient nexus between their function as an entity and the individual's right of
privacy? If yes, then would the remedy sought directly benefit the individuals' alleged
injuries? If yes, then MTC and DOR would have had standing to assert the individuals'
privacy rights to preclude the corporate taxpayer from obtaining the files. In PacifiCorp,
since--as we conceded--there were no individual privacy rights being protected, neither
MTC nor DOR had standing to assert rights of privacy. PacifiCorp was entitled to its file--

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not because MTC and DOR were government instrumentalities without "corporate"
privacy rights of their own, but because neither entity did or could establish standing to
protect some individual privacy right.

¶121 Thus, this approach would do away with this "corporation vs. government"
confusion. For example, the Court in PacifiCorp seems to indicate that MTC, as a
government entity, "cannot assert the right of privacy." PacifiCorp, 254 Mont. at 395, 838
P.2d at 918. The Court in Belth, however, stated that a government employer can assert
the privacy rights of its employees. Belth, 227 Mont. at 345, 740 P.2d at 641. In point of
fact, if a corporation or a government entity, under the representational standing doctrine,
can demonstrate it has the requisite relationship to protect the privacy rights
constitutionally guaranteed to individuals, then it matters not which sort of non-human
entity asserts those rights.

¶122 Similarly, such cases as Great Falls Tribune Co., Inc. v. Great Falls Pub. Sch.
(1992), 255 Mont. 125, 841 P.2d 502, could be more cleanly decided. Absent the Board
establishing standing to protect individual privacy rights, we would never have had to
reach the argument of whether the Board could claim its own "individual" privacy rights
in attempting to keep the press out.

¶123 This same analysis clarifies the dispute in Montana Health Care Ass'n v. Board of
Directors (1993), 256 Mont. 146, 845 P.2d 113. There, the appellant corporation invoked
the right to know, under Article II, Section 9; likewise, the government entity invoked the
right to privacy under Article II, Sections 9 and 10. Both rights were, essentially,
presumed.

¶124 Under the analysis suggested here, without initially demonstrating its standing to
protect individual privacy rights, the government could not have refused to provide the
information requested.

¶125 Most recently, in Great Falls Tribune II, the State Department of Corrections and its
potential corporate prison "vendors," simply would have no right of privacy under Article
II, Section 10. The State, therefore, could only argue, in an Article II, Section 9, action
brought on behalf of the "public," that the information sought did not emanate from a
"deliberation" of a public body. Rather, the "negotiations" between the State and the
vendors were not the kind of deliberations that the framers intended to keep open to the
public via Article II, Section 9. This argument failed.

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¶126 In turn, the parties that should have brought an action were the vendors. The vendors
could assert trade secrets, or a similar property interest, under the Fifth and Fourteenth
Amendments. This would have been the vendors' cause of action. The State had no
standing, on the vendors' behalf, to assert "corporate privacy" rights that the vendors
themselves were not constitutionally guaranteed. Again, no individual privacy rights were
at stake and, hence, the government could not claim standing to protect those rights.

¶127 Finally, applying this approach in the case at bar, the corporate taxpayers have no
privacy rights in their tax information under Article II, Section 9. For that reason, DOR
has no standing to assert, on the corporate taxpayers' behalf, constitutional privacy rights
that such non-individual entities are not able to claim for themselves. That is not to say
that the corporations, as plaintiffs in their own right, might not be able to demand some
other form of constitutional protection to maintain the confidentiality of their tax
information. No one has advanced such a claim, however, and, accordingly, the further
development of that argument must await a future case. The case sub judice was litigated
and argued on the basis of corporate privacy considerations, and that is how it must be
resolved.

VI.

¶128 In conclusion, and, with all due regard for stare decisis, I must agree with Winston
Churchill who is reported to have observed: "If you simply take up the attitude of
defending a mistake, there will be no hope of improvement." It is time to undo the mistake
we made in Mountain States. Based on the foregoing, I would overrule Mountain States
and its progeny to the extent that our decisions judicially created and granted the
constitutional right of individual privacy to corporations and, by implication, to other non-
human entities.

¶129 It is time that we re-interpret the plain and unambiguous language of Article II,
Sections 9 and 10, in the manner originally intended by the Con-Con delegates. The right
of privacy protected under Montana's Constitution is a right guaranteed to individuals
only. It is uniquely a "people" right. It is a right which may be enjoyed only by "natural
persons"--i.e., by human beings.

¶130 If a corporation or other non-human entity seeks to claim rights of individual privacy
then, necessarily, such claims must be based on the corporation or non-human entity
demonstrating representational standing via a sufficient nexus with individuals--human

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beings--whose privacy rights are at issue.

¶131 It is on this basis that I would reach the "corporate privacy" issue and would, thus,
arrive at essentially the same result as the majority. I concur.

/S/ JAMES C. NELSON

Justice W. William Leaphart concurs in the foregoing special concurrence.

/S/ W. WILLIAM LEAPHART

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