No. 82-269
IN THE SUPREME COURT OF THE STATE OF MONTAPJA
1984
THE MISSOULIAN, a division of
Lee Enterprises, Inc.,
Plaintiff and Appellant,
BOARD OF REGENTS OF HIGHER EDUCATION
and JOHN RICHARDSON, COMMISSIONER OF
HIGHER EDUCATION,
Defendants and Respondents.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable John 14. McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Miloragovich, Dale & Dye; Harold V . Dye argued,
Missoula, Montana
For Respondents:
G. Steven Brown argued, Helena, Montana
LeRoy Schramm, Montana University System, Helena,
Montana
For Amicus Curiae:
Jayne Mitchell for Dept. of Administration,
Helena, Montana
--
Submitted: October 31, 1983
Decided: January 23, 1984
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the
Court.
Plaintiff Missoulian appeals from summary judgment
granted by the First Judicial District Court, Lewis and Clark
County. The action was brought by the Missoulian under the
Montana Constitution and Open Meeting Act, challenging
closure by the Board of Regents (Board) of a job performance
evaluation meeting concerning presidents of the six
university system units. The District Court granted summary
judgment, upholding the legality of the meeting closure. The
Missoulian appeals and the State Department of Administration
appears as amicus curiae. We affirm the judgment of the
District Court.
The issues are:
1. Whether job performance evaluations of university
presidents, which elicit candid and. subjective comments from
Board members, anonymous interviewees, and the presidents
themselves, are matters of individual privacy protected by
the Montana Constitution or whether the privacy clause
protects only matters of family or health not affecting job
performance?
2. Whether the university presidents' privacy interests
in job performance evaluations clearly exceed the public's
constitutional and statutory right to know, particularly in
light of the Board's contention that confidential evaluations
are in the public interest?
3. Whether closure of job performance evaluation
meetings is necessary to protect the presidentst privacy
interests or whether alternative methods exist for protecting
individual privacy in evaluation meetings?
On January 7, 1980, the Board adopted procedures for
evaluation of university presidents. The Board and the
Commissioner of Higher Education (Commissioner) are
responsible for hiring, firing and supervising the
presidents. The Performance Evaluation Policy provided for
two levels of evaluation, an annual review and a more
thorough periodic evaluation, which was to occur every three
years. Annual review involved a president preparing a
statement of goals and objectives for his institution and an
informal and confidential discussion of perfarmance between
the president and the Board. In 1980, Presidents William
Tietz (Montana State University), Fred DeMoney (Montana
College of Mineral Science and Technology), James Erickson
(Northern Montana College) , and Robert Thomas (Western
Montana College) were evaluated under annual review
procedures.
Periodic evaluation was, by contrast, more formal and
structured. A president undergoing periodic evaluation was
to prepare a thorough evaluation of his own performance and
of the performance of his administration in the areas of
academic administration and planning, fiscal management,
problem solving and decision making, personnel management and
appointments and external relations. The Commissioner was to
interview persons representative of faculty, staff, students,
administration, alumni, community leaders and elected
officials on various aspects of the president's performance.
The Board would then discuss in confidence with the president
the self-evaluation and results of the Commissioner's
interviews. In 1980, Presidents Richard Bowers (University
of Montana) and John Van de Wetering (Eastern Montana
College) were evaluated under periodic review procedures.
Prior to the May 3, 1980 meeting, the Commissioner, John
Richardson (Richardson) conducted 74 interviews concerning
the job performance of Presidents Bowers and Van de Wetering.
The Commissioner gave each interviewee an assurance of
confidentiality at the beginning of the interview and in the
letter requesting the interview. The interviews covered the
issues listed in the Board's job performance evaluation
policy. In conducting his interviews, Richardson used what
he termed a "directed interview format." Richardson would
ask each interviewee a series of open-ended questions
concerning the president's performance. Interviewees were
asked for their evaluations of the president's strengths and
weaknesses. Using the topic areas of his interview sheet as
an outline, Richardson then prepared a summary of the results
of the interviews broken down by category of interviewee. In
presenting his summary at the May 3 meeting, Richardson took
care that particular interviewees could not be identified
from his remarks.
The Board's Performance Evaluation Policy specifies that
"[tlhe principle of confidentiality will be observed
throughout the review process" and that the principle will
"apply to written documents and to discussions among all
those who participate." The policy further specifies tha.t
the eva.luations will be conducted in "executive session."
At the Board's April 21, 1980 meeting, the Missoulian
formally requested to attend the performance evaluation of UM
President Richard Bowers and to review the evaluation
documents considered by the Board. The Missoulian's request
was based on the contention that the meeting involved "the
carrying out of the public's business in public education and
therefore the public should be apprised." The request was
denied on grounds that the demands of individual privacy
clearly exceeded the merits of public disclosure. In its
brief, the Missoulian states that it wished access to this
information "simply because of its news value to its
readership." Later, Missoulian changed its request to
include access to all presidential evaluations. An attempt
at a compromise solution failed.
At the Ply 3, 1980 meeting, the Missoulian requested
ia
access to each evaluation session. That request was denied.
The Missoulian's reporter, Mea Andrews, asked each president
and the Commissioner if they would waive their privacy
rights; each refused. The evaluations were conducted with
only the Board, the Commissioner and the individual president
present. No handwritten or recorded minutes were kept.
After the meeting, a statement of goals prepared by each
president was released to reporters. Also released was a
list of the categories of interviewees and questions asked in
the interviews by the Commissioner. Chairman Ted James
stated after the meeting that most of the annual review
sessions could have been open and some of the periodic review
sessions could have been open.
The Board notes that during consideration of the
evaluation procedures prior to their adoption, a copy of the
proposed procedures was circulated to the members of the
press, including the Missoulian. No objection to the
procedures was made by the Missoulian. Further, an editorial
written by publisher Tom Brown had appeared in the Missoulian
supporting the evaluation procedure because it removed the
evaluation from the political process and because every
employee, whether he be "a typist at a local business or the
president of the university, deserves a fair, honest and
thorough evaluation of performance."
Four of the Presidents, Erickson, Tietz, Thomas, and
DeMoney, were evaluated under the less extensive annual
review procedure. These evaluations were generally short,
lasting from 15 to 45 minutes. Each President subjected to
annual review submitted a list of objectives and goals, but
these were not discussed at the meeting. Each of these
presidents had an expectation that the process would be
confidential.
Presidents Bowers and Van de Wetering were evaluated
under the three-year periodic review prccedures. Their
evaluations lasted approximately an hour to an hour and a
half. Each prepared and submitted in advance a written
self-evaluation.
Bowers' self-evaluation was an analysis of his
performance as President and an evaluation of his
administration, staff and faculty. Bowers prepared his
self-evaluation with an expectation of confidentiality. He
would have written the self-evaluation differently if it was
to be a public document. Bower's self-evaluation contained
statements and criticisms which if made public would have
damaged his ability to function as UM president. These
statements would not have been made if they were to be
released to the public. If Bowers had deleted or modified
these statements, he believes his self-evaluation would have
been an incomplete statement and would not have been an
accurate self-evaluation of his "total performance a.s
president."
Van de Wetering marked his self-evaluation
"CONFIDENTIAL" and. prepared it believing it would be read
only by the Commissioner and the Regents. In his preface, he
stated he was attempting to "let it all hang out." He stated
he would not have been so frank if it were meant to be made
public. Van de Metering's self-eva.luation also contained
potentially damaging comments which would be made only in
confidence. He believes he could not have survived as EMC
president and that his governing a-bility and his ability to
work with various individuals would have been adversely
affected had the self-evaluation been publicly released.
The Commissioner presented to the Board an oral summary
of the comments gathered during his confidential campus and
community interviews. These comments consisted of subjective
evaluations of the presidents' strengths, weaknesses, and
effectiveness in a number of subject areas.
Following this presentation by the Commissioner, the
sessions consisted of discussions of various areas of
performance or problem areas and discussion of rumors and
accusations. During the meetings, no policy decisions or
directives were made, nor were the merits of any particular
policies debated. The record shows that policy matters were
involved in the evaluations only insofar as they related to
the individual president's performance or the effects of a
given policy on his administration, its image and ability to
govern effectively. The discussions centered on personal
relationships and personalities, subjective evaluation of
various personnel or faculty and the presidents' management
style, methodology and decision-making approach. Other
areas of discussion included family, health, personal plans,
relationships with Board members and faculty-administration
relations. The discussion included potentially defamatory
remarks regarding specific persons. Much of the material
discussed was of such character that it would not be
discussed in public.
Chairman James and Commissioner Richardson felt the
effectiveness of the evaluations depended upon their
confidentiality. James indicated that if the evaluations had
to be conducted in public, they would probably be abandoned.
Richardson stated that the Boards' evaluations were of
"immeasurable assistance" to him and the Board. He believes
the procedure helps to head off potential problems before
they damage a university or college. He would recommend
abolishing the evaluation procedure if it was open to the
public. Public disclosure would, in his opinion, inhibit
candid evaluations by faculty and staff, discourage candid
presidential self-evaluations, and damage the presidents'
ability to govern.
All six presidents use confidential evaluations for
their staffs. Each considers them an essential tool of
effective management, without which governing ability would
be adversely affected. One president went so far as to say
that without such a tool he would leave the profession.
Bowers entered the presidential performance evaluation
process with an expectation of confidentiality. During his
years of experience in higher education, Bowers had always
been evaluated in private and had no reason to expect the
Board's evaluation would be anything but confidential.
Bowers believes the discussion of his staff 's
performance was a necessary part of the evaluation of his
performance and that such discussions must be held in
private. Bowers also believes that a thorough performance
evaluation must include a discussion of decision-making
methodology, personal traits and a person's ability or
inability to make decisions. These discussions could affect
a person's ability to obtain future employment if held in
public.
President Van de Wetering believes a frank
self-evaluation is necessary in order to determine if the
president is aware of his own problems and whether the Board
perceives them as problems.
The Board notes that the Missoulian and other private
enterprises recognize the value of and use confidential
personnel evaluations because they aid in improvement of
performance and allow employer and employee to openly express
opinions, offer suggestions and communicate.
The Missoulian brought this action under the "right to
know" provisions of the Montana Constitution and the Open
Meeting Act against the Board and Commissioner Richardson,
challenging the closure of the May 3, 1980 job performance
evaluation meeting. Shortly after the action was filed, the
Board moved for summary judgment. The matter was extensively
briefed and argued and the motion was denied by the District
Court on November 10, 1980.
Later, the Missoulian deposed the presidents, the
Commissioner and the chairman. The Board deposed the
Missoulian's publisher, Tom Brown, Managing Editor Rod
Deckert and reporter Mea Andrews. After completion of
discovery, both parties moved for summary judgment. In
addition to the depositions, the record before the District
Court consisted of two affidavits by Ted James, one affidavit
each by John Richardson, Rod Deckert and Mea Andrews and the
Board's response to the Missoulian's Request for Production.
On June 17, 1982, the District Court granted the Board's
Motion for Summary Judgment, sustaining closure of the May 3,
1980 meeting.
The Missoulian appeals. The State Department of
Administration has filed a brief as amicus curiae, because
the decision in this case may have significant statewide
impact on employee evaluation procedures, which the
Department is responsible to develop.
I
The first issue is whether job performance evaluations
of university presidents, which elicit candid and subjective
comments from Board members, anonymous interviewees, and the
presidents themselves, are matters of individual privacy
protected by the Montana Constitution or whether the privacy
clause protects only matters of family or health not
affecting job performance.
The Missoulian argues that university presidents have no
privacy interest in performance evaluations. It contends
that presidents can have no reasonable expectation of privacy
except in the narrow areas of personal health and family
which do not affect job performance. It argues that the
presidents1 job performance is a public matter which society
is unwilling to recognize as private and that the
interweaving of public business with the small amount of
private matter discussed compels open evaluations. We
disagree with the Missoulian's characterization of what was
discussed and their contention that it is not private.
Article 11, section 10 of the Montana Constitution
establishes a fundamental right of privacy:
"Right of Privacy. The right of individual privacy
is esseytial to the well-being of a free society
and shall not be infringed without the showing of a
compelling state interest."
We discussed the adoption and scope of the privacy
clause in Montana Human Rights Division v. City of Billings
(Mont. 1982), 649 P.2d 1283, 39 St.Rep. 1504. We noted that
the Montana Constitution provides more privacy protection
than the Federal Constitution. 649 P.2d at 1286, 39 St.Rep.
at 1508. But the Constitutional Convention delegates appear
to have left to the courts the task of defining the scope of
the privacy right on a case-by-case basis. Gorman, Rights &
I
Collision: The Individual Right Privacy - - Public
and the
A-- 39 Mont.L.Rev. 249, 266-67 (1978). The only
Ri ht to Know,
apparent clue left by the delegates regarding privacy in
personnel matters is the statement of delegate Dorothy Eck of
the Bill of Rights Committee that the Committee considered
"deliberations regarding personnel" private. Mont. Const.
Convention, Verbatim Transcript, Vol. V, pp. 1670-71 (March
7, 1972). Her comment, however, is not sufficiently specific
to resolve this issue.
This Court applies a two-part test to determine whether
a person has a constitutionally protected privacy interest:
whether the person involved had a subjective or actual
expectation of privacy and whether society is willing to
10
recognize that expectation as reasonable. Montana Human
Rights Division, 649 P.2d at 1287, 39 St.Rep. at 1509. We
applied this test in Montana Human Rights Division and found
a privacy interest in personnel records of city employees and
applicants for employment.
There, the Human Rights Commission (HRC) was
investigating employees' complaints of discrimination by the
City of ~illings. During the investigation, HRC attempted to
gain access to personnel files, employee evaluations,
disciplinary records, test scores and appli-cation materials
for complainants and certain other employees and applicants.
The City refused to allow access without consent of the
individual employees whose files were sought, because to do
so might constitute an invasion of privacy. 649 P.2d at
1285, 39 St.Rep. at 1505. This Court was squarely faced with
the issue of whether that information was protected by the
Montana Constitution and, if so, under what circumstances
that right could be infringed.
Applying the first part of the privacy test, we found
that the city employees and applicants had an actual
expectation of privacy. 649 P.2d at 1287, 39 St.Rep. at
1509.
Here, the Board's written evaluation policy stated that
the self-evaluations would be confidential and the evaluation
meetings would be conducted in "executive session." The
anonymous interviewees who commented on the presidents'
performance were promised confidentiality. It is undisputed
that the six university presidents actually expected that the
job performance evaluations would be private. Bowers and Van
de Wetering submitted their self-evaluations expecting
confidentiality. The first part of the privacy test is
clearly satisfied.
The more difficult question is whether these actual
expectations of privacy were reasonable. In Montana Human
Rights Division, we stated that the "right of privacy turns
on the reasonableness of the expectation, which may vary,
even regarding the same information and the same recipient of
that information." 649 P.2d at 1288, 39 St.Rep. at 1509.
The Missoulian is correct that time, place and status are
factors in the reasonableness determination. But the
determination should include consideration of - relevant
all
circumsta.nces, including the nature of the information
sought.
In assessing the reasonableness of public employees'
privacy expectations in personnel matters in Montana Human
Rights Division, we stated:
"Employment records would reasonably contain, among
less sensitive information, references to family
problems, health problems, past and present
employers' criticism and observations, military
records, scores from IQ tests and performance
tests, prison records, drug or alcohol problems,
and other matters, many of which most individuals
would not willingly disclose publicly. Some
testing and disclosure (e.g., past employment
records, prison records, drug or alcohol use) is a
necessary part of many applications for employment;
other information may be compiled by present
employers or may be submitted by an employee in
explanation of absence from work or poor
performance on the job. It is clear that there is
frequently pressure upon an employee to communicate
these matters to his employer in the privacy of his
boss's office or on an application for employment
or promotion. And while, as far as we know,
respondents gave their employees no specific
assurances of confidentiality, we believe that
employees would reasonably expect such
communication normally would be kept confidential.
Therefore, we find that under the circumstances of
this case, the information requested by the HRC is
subject to the protection of Montana Is
.
constitutional right of privacy ( § 10) " 649 P. 2d
at 1287-88, 39 St.Rep. at 1509.
In fact, much of the discussion at the evaluation
meetings involved matters within the categories listed in
Montana Human Rights Division, as well as matters in other
categories. The discussion included family and health
problems, employer's criticisms, employees' criticisms of the
employer, interpersonal relationships, subjective vi-ewpoints
of the performance of the presidents and various
subordinates, the ability of the presidents to work with the
faculty, and other matters of a similarly sensitive nature.
The self-evaluations of Bowers and Van de Wetering were also
discussed.
The Missoulian contends that much of the discussion
concerned matters of public record or public policy in which
the presidents can have no privacy interest. However, we do
not agree with the Missoulian's reading of the record. The
record shows that matters of public interest were discussed
only peripherally, insofar as they impacted job performance
or interpersonal dynamics. The Board did not deliberate on
policy matters. They inquired into only the effects of
various policies upon the presidents' abilities to function.
The Missoulian further argues that because innocuous
information or matters of public knowledge were d-iscussed
along with private matter, there was no privacy interest at
stake. In Montana Human Rights Division, we recognized that
the information sought by HRC contained harmless or generally
known information, but that the information was nonetheless
subject to constitutional protection:
"While we are aware that much of the information
contained in employment files and records is
harmless or is already a matter of general
knowledge, we are not persuaded that the records
are entirely free of damaging information which the
individuals involved would not wish and in fact did
not expect to be disclosed." 649 P.2d at 1287, 39
St.Rep. at 1509.
Obviously, nearly all private matters contain some component
of innocuous information or general knowledge. However, that
component does not transform private matter into public.
The Missoulian contends that because public record
information can be published without liability, Cox
Broadcasting Corp. v. Cohn (19751, 420 U-S. 4691 the
information here which contains some public knowledge is not
13
protected by the privacy clause. But - Broadcasting holds
Cox
only that where material is a part of the public record it
may be published. It does not hold that any information must
be released to the media. 420 U.S. at 495. Certainly, the
media, is free to obtain and publish within legal guidelines
information from the public record. But the free press
rights at stake in Cox Broadcasting are distinguishable from
and should not be confused with the public's right to know.
The status of university presidents, the Missoulian
argues, so diminishes their privacy rights that job
performance evaluations are not protected by the privacy
clause. The Missoulian argues that Montana Human Rights
Division is distinguishable because university presidents are
policy-making officials whose actions are of greater
importance to the public than the employees in Montana Human
Rights Division. We do not doubt that university presidents'
privacy interests may be less in some circumstances than
other public employees. However, mere status does not
control the determination. University presidents do not
waive their constitutional protections by taking office. We
do not agree that the presidentst privacy interests are too
weak to protect the information at stake here.
The Missoulian has failed to show any significant
distinction in this case between the job performance
evaluations of university presidents and other public
employees. Indeed, the sensitive nature of the presidential
function suggests that there is all the more reason to expect
confidentiality in presidential evaluations. A university
president depends to a large degree upon good relations and a
strong image within the university community for the
successful accomplishment of his job. A university president
has good reason to expect that his unabashed views, his
candid evaluations of himself and his staff, and his
perceptions of the faculty will remain private. This
information was obtained by the Board through candid and
subjective responses by the presidents, anonymous
interviewees, and Board members after assurances of
confidentiality. Neither policy decisions nor directives
were discussed and they are not addressed here.
We emphasize that it is not only the presidents who had
privacy interests at stake in these evaluation sessions.
Numerous administrative staff, faculty members and other
university employees were discussed. The matters discussed
with regard to these employees was of a sensitive nature and
would reasonably be expected to remain confidential. We must
consider closure of the sessions in light of the privacy of
these employees as well as that of the presidents.
In Trenton Times Corp. v. Board of Education (N.J.Super
1976) , 351 A. 2d 30, the court found that personnel records
and evaluations of a school superintendent were private
matters not subject to the public's right to know. The court
stated:
"Personnel records . .
include employees '
performance ratings. The policy to keep
performance ratings confidential has been adopted:
first, to protect the right of privacy of the
government employee; second , because the
evaluations are subjective opinions of the
performance of the employee that vary with the
person giving the rating; third, public disclosure
would impede receiving candid evaluations; and
fourth, a supervisor could use the public nature of
these ratings as a vindictive mechanism against
employees he disliked. The lack of objective
criteria, the potential for vindictiveness, the
lack of an opportunity for the employee to rebut
statements made in the rating, and a substantial
potential for abuse leads to the conclusion that
these ratings should be kept confidential." 351
A . 2 d at 33.
The reasons behind a policy of confidential evaluation and
the dangers of public disclosure recognized by the New Jersey
court are applicable here.
We note that many organizations, including the
Missoulian, recognize the reasonableness and benefit of
confidential personnel eval-uations. Indeed, the Missoulian's
editorial supported the confidentiality of the evaluations.
The record shows that confidential evaluations are used by
other states. We conclude that the university presidents
have a reasonable expectation of privacy in job performance
evaluations.
The Missoulian relies upon a number of cases for the
proposition that no privacy interest attaches to job
performance evaluations of university presidents. However,
those cases do not address the scope of the right of privacy.
The cases generally address only the scope of the open
meeting law in a particular state without any countervailing
privacy right at stake. See Ridenour v. Board of Education
(Mich.App. 1981), 314 N.W.2d 760, 762-64; Polillo v. Deane
(N.J. 1977), 379 A.2d 211, 218.
We hold that the university presidents' job performance
evaluations were matters of individual privacy protected by
Article 11, section 10 of the Montana Constitution.
The second issue is whether the university presidents'
privacy interests in job performance evaluations clearly
exceed the pub1i.c'~ constitutional and statutory right to
know, particularly in light of the Board's contention that
confidential evaluations are in the public interest.
The Missoulian argues that the right of privacy is
generally subordinate to the public right to know. It
contends this is the scheme intended by the Constitutional
Convention delegates and the Legislature, whose purpose was
to prevent the making of public decisions in secret meetings.
The Missoulian argues that closure of the job performance
evaluations was unjustified because the demands of privacy
did not clearly exceed the merits of public disclosure.
Article 11, section 9 of the Montana Constitution
provides :
"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 - individual privacy clearly exceeds the
of
merits - public disclosure."
of (emphasis added)
The Open Meeting Act incorporates the same closure standard:
" (1) All meetings of public or governmental
bodies, boards, bureaus, commissions, agencies of
the state, or any political subdivision of the
state or organizations or agencies supported in
whole or in part by public funds or expending
public funds shall be open to the public.
" (2) Provided, however, the presiding officer of
any meeting may close the meeting during the time
the discussion relates to a matter of individual
privacy and then if and only if the presiding
officer determines that the demands of individual
rivacy clearly exceed the m e r i t s of public
$isclosure. The right of i m v i d u a l privacy may be
waived by the individual about whom the discussion
pertains and, in that event, the meeting shall be
open. " Section 2 - 3 - 2 0 3 , MCA (emphasis added) .
The constitution appears to prescribe two different
standards for determining whether a privacy interest prevails
over a competing interest. In Montana Human Rights Division,
we recognized that a privacy interest will yield only to a
compelling state interest. There, we found that a compelling
state interest arose under the equal protection clause of the
Montana Constitution. 6 4 9 P.2d at 1288, 3 9 St.Rep. at 1510.
The Missoulian argues that here a compelling state interest
arises simply because the right to know is of constitutional
magnitude; the right to know being a compelling state
interest, privacy must yield. Under the Missoulian's theory,
it appears the right to know would always prevail over
individual privacy.
However, the right to know is not absolute. The more
specific closure standard of the constitutional and statutory
provisions requires this Court to balance 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. Under this
standard, the right to know may outweigh the right of
individual privacy, depending on the facts.
Before balancing these interests, however, it must be
determined more precisely what interests are at stake. This
determination includes consideration of various facets of the
public interest and is required by the language of the right
to know provision, which calls for a balancing of the
"demands of individual privacy" and the "merits of
disclosure."
The Missoulian would limit the inquiry to a contest
between competing constitutional interests in the abstract,
without consideration of aspects of the public interest other
than the general "riqht to know." But a broader inquiry is
required. by the constitutiona.1 and statutory provisions and
has been employed by this Court in previous cases. We reject
the restrictive approach suggested by the Missoulian.
In Montana Human Rights Division, we considered the
policies behind the investigatory powers of the HRC,
including the right to be free from discrimination, the need
for accurate and effective resolution of complaints and the
adverse consequences of denying the HRC access to
information. We also considered the inconvenience or
impracticality of alternative methods of obtaining the
information and the "practical realities of the situation."
649 P.2d at 1289, 39 St.Rep. at 1511.
In Mountain States Telephone and Telegraph Co. v. Dept.
of Public Service Regulation (Mont. 1981), 634 P.2d 181, 38
St-Rep. at 1479, we addressed the issue of whether and under
what conditions corporate trade secrets protected by the
privacy clause must be publicly disclosed under the
constitutional right to know. Mountain States had offered to
disclose the information to the Public Service Commission
(PSC) under protective order, but the PSC refused to issue a
protective order. We rejected the argument that because the
information was necessary to the PSC1s rate-making
determination, public disclosure was required. 634 P.2d at
187, 38 St.Rep. at 1485-86.
We considered the policies behind the information-
gathering powers of the PSC and:
". . . balanced the rights that all citizens
acquired under the right to know provision of the
state constitution with the purpose and function
for which our laws compel disclosure . . The ..
right to know provision was designed to prevent the
elevation of a state czar or oligarchy; it was not
designed for, nor will be substitute, the tyranny
of a proletariat . . ..
Any other citizen . . .
may also have access to the trade secret, provided
his or her interest relates to the ratemaking
function of the PSC." 634 P.2d at 189, 38 St.Rep.
at 1488.
Montana Human Rights Division and Mountain States indicate
that it is appropriate and necessary to balance the competing
rights in the context of the purposes, functions and needs of
the governmental entity involved and the purposes and merits
of the asserted public right to know.
The substantial value of confidential evaluations is
apparent. The Board, the Commissioner and the presidents all
rely on confidential evaluations to effectively improve job
performance. These evaluations allow the Board and the
president to gain an accurate view of the effectiveness of
the administration, its strengths and weaknesses. The
Commissioner stated that these sessions were of "immeasurable
assistance" to him and the Board in managing the university
system. The procedure helps to "head off" potential problems
before they damage a university unit. It allows the Board
members and presidents to test their perceptions a.gainst
those of people from a cross-section of the university and
community. The overall effectiveness and quality of the
system is enhanced and these results accrue to the benefit of
the public.
The participants uniformly believe that open evaluation
sessions would be detrimental. The Chairman and the
Commissioner stated that the effectiveness of the sessions in
job performance improvement and other benefits depended in
large part upon confidentiality. The Commissioner stated
that public disclosure would inhibit candid evaluations from
faculty, staff, and other interviewees, discourage presidents
from making candid self-evaluations, and would damage the
presidents' ability to govern. The District Court found that
frank, honest and critical evaluations would not occur
without confidentiality. The state's ability to attract top
presidential candidates or retain its current presidents
would suffer. Both the Chairman and the Commissioner
indicated that the sessions probably would not be held unless
they were confidential. All of the presidents use
confidential evaluations for their staff and believe they are
an essential tool for effective management.
The privacy interests of the presidents would suffer
greatly from disclosure. Also, the privacy of faculty, staff
and other interviewees whose names or comments were discussed
would be violated or jeopardized. To allow public disclosure
of the confidential comments of the anonymous interviewees
arguably contravenes the legislative policy of protecting the
confidentiality of communications made to public officials
where the public interest would suffer by the disclosure.
Section 26-1-810, MCA. The disadvantages of public
disclosure are substantial.
The Missoulian argues that public disclosure would
further the public interest in several ways, including
fostering public confidence in public institutions,
maintaining the accountability of public officials, assuring
public access to information to allow evaluation of public
expenditures, and preventing the secret conduct of government
and usurping of the people's sovereignty. However, the
Missoulian has failed to show how any of these public
interests would be furthered by public disclosure or hindered
by confidentiality in this case. The Missoulian has shown no
relation between the information involved here and the
objectives of the right to know provision. The discussions
concerned personal relationships and personalities,
subjective evaluation of various staff and faculty, and the
presidents' management style, methodology and personality.
This information may make interesting or sensational news
copy, but we conclude that public disclosure is not in the
public interest.
The Missoulian argues that when the Legislature deleted
the personnel exception to the Open Meeting Act, it indicated
an intent to open personnel evaluations to the public.
However as the Board notes, the specific exceptions were
apparently deleted in favor of a broad and flexible general
exception. This was deemed necessary because it did not
appear that the specific exceptions were broad enough to
encompass all situations where the right of privacy might
exceed the merits of public disclosure. See Official
Minutes, House State Administration Committee, January 27,
1977. The Missoulian's suggestion that the Legislature
intended personnel evaluations to be open to the public is
unconvincing.
We hold that the demands of individual privacy of the
university presidents and other university personnel in
confidential job performance evaluation sessions of the Board
of Regents clearly exceed the merits of public disclosure.
We affirm the District Court's findings that these
confidential job performance evaluations are in the public
interest and that the demands of individual privacy clearly
exceed the merits of public disclosure.
The final issue is whether closure of job performance
evaluation meetings is necessary to protect the presidents'
privacy interests or whether alternative methods exist for
protecting individual privacy in evaluation meetings.
The Missoulian contends that closure of the evaluation
meetings was not necessary to protect any private matters
that actually were discussed at the meeting. The Missoulian
argues that routine parliamentary methods are available for
segregating private from non-private matters in the
evaluation sessions. These include protecting the identity
of those discussed, "agenda scheduling" (scheduling the
discussion of specific private matters and closing the
session for only that discussion), and objections and side
bar conferences (as used in objecting to inadmissible
evidence in trials) . The Missoulian argues these
alternatives are practical and sufficient to protect privacy.
The Board argues that these alternatives are impractical and
inadequate to protect privacy; partial closure would fail to
accomplish its purpose and would prevent the evaluations from
being effective.
In Montana Human Rights Division, the City of Billings
argued that the information sought by HRC could be altered in
such a way as to protect the identities of the employees and
thus make the intrusion less objectionable. We noted that
this would limit the accuracy and completeness of the
information sought. 649 P.2d at 1289, 39 St.Rep. at 1512.
Here, one purpose of the confidential evaluation procedure is
to encourage full uncensored comment by all involved. To
alter the information in an attempt to protect identities
would frustrate this purpose. Moreover, this alternative
would do nothing to protect the principal privacy interests
at stake -- those of the presidents. In Montana Human Rights
Division, this Court found that an HRC regulation which
allowed public disclosure of "data or abstracts derived from
such information in a form which does not reveal the identity
of the charging party, respondent, or person supplying the
information" was inadequate to protect the right of privacy.
649 P.2d at 1290, 39 St.Rep. at 1512-13. We prohibited
release of information which "sugqests the identity of
employees . . .." 649 P.2d at 1291, 39 St.Rep. at 1514
(emphasis added). The identity of the presidents and other
employees who were discussed was more than "suggested" by the
discussion that occurred at the evaluation sessions.
Agenda scheduling also presents significant problems.
The Missoulian's explanation of this method demonstrates its
impracticality. The Missoulian suggests that "if in the
course of an evaluation a participant feels he is intruding
on matters of indivi-dual privacy, he is to state his concern
to the presiding officer who will make a decision on whether
the meeting should be closed for that discussion."
Presumably a side bar conference would then be had to resolve
the matter. This procedure would transform the evaluation
into a procedural exercise rather than an informal discussion
of the employee's performance. The open and informal
character of the evaluations, which is directly related to
their effectiveness, would be lost.
This type of procedure is arguably suggested by the
language of the Open Meeting Act, which states that "the
presiding officer of any meeting may close the meeting during
the time the discussion relates to a matter of individual
privacy . . .." Section 2-3-203(2), MCA. However, most if
not all of the discussion at the May 3, 1980 meeting related
to matters of individual privacy. There was so much
interweaving of sensitive material that it would have been
impossible by use of agenda scheduling to separate private
matter from non-private, to protect privacy, or to avoid
destroying the effectiveness of the evaluations.
The agenda. scheduling procedure suggested by the
Missoulian is rather vague. The Missoulian has not shown how
Board members would know in advance that a private matter was
about to be raised nor how the Board could avoid the
suggestion of private matter in calling for a side bar
conference. While being questioned about this procedure in
d.eposition, Missoulian publisher Tom Brown indicated that
this procedure would "take a little risk with that kind of
thing." We believe such a procedure would fail to protect
privacy or would sanitize the evaluations beyond
effectiveness.
As the Board argues, agenda scheduling is feasible only
if we adopt the narrow view of privacy urged by the
Missoulian. Such a procedure artifically compartmentalizes
the discussion. Use of trial procedures would raise the
sessions to the level of adversarial proceedings and destroy
the public benefits of informal and candid evaluations. A
careful review of the depositions and other documents in the
record demonstrates the complete impracticality of partial
closure. The flow of the discussion and interchange of
questions at the meetings continuously raised matters of
privacy inappropriate for public discussion. In short,
closure appears the only practical and effective method of
conducting job performance evaluations.
We hold on these facts that closure of the job
performance evaluations was necessary to protect the
individual privacy of the university presidents and other
university personnel. Neither the constitutional nor
statutory right to know provision was violated. We affirm
the judgment of the District C
We concur:
Chief Justice' - L