Gazette responds to city's lawsuit in an effort to see documents

2014-08-06T22:00:00Z 2014-08-07T11:58:05Z Gazette responds to city's lawsuit in an effort to see documentsBy MIKE FERGUSON The Billings Gazette

The City of Billings and The Billings Gazette are headed to court in a dispute over documents related to a possible mishandling, misuse or misappropriation in the city’s Solid Waste Division.

The City of Billings initiated a lawsuit recently, and The Gazette filed an answer and counterclaim on Wednesday.

Billings attorney Martha Sheehy represents The Gazette and filed the response in Yellowstone County District Court.

City Administrator Tina Volek said she, City Attorney Brent Brooks and Deputy City Attorney Kelly Addy had not seen the response as of late Wednesday afternoon “and don’t feel comfortable commenting until we do.”

On June 26, Gazette Editor Darrell Ehrlick filed a request for public records to Volek after The Gazette had been told of a possible financial investigation at the city-owned landfill. Rather than respond to Ehrlick’s request, the city elected to file a lawsuit in district court.

In the suit, Addy said that “the right of individual privacy of persons mentioned in these documents would be irreversibly affected by the disclosure of this information.”

In a six-page brief filed July 11 and assigned to District Judge Michael Moses, Addy asserts that since the city is not part of the state’s judicial branch, “it has not been given authorization by statute or any court decision to determine whether, as to the records, the demand of individual privacy clearly exceeds the merits of public disclosure.”

A box full of records, Addy noted, have been turned over to the court in response to The Gazette’s request. City officials have asked Moses to determine which documents can be released, and which information should be redacted to shield it from public scrutiny.

Addy also asked the court to reimburse the city for staff time, document copying fees and the attorney fees incurred to prepare and file the city’s petition “and prosecuting this action.”

In her response, filed in district court Wednesday, Sheehy asserts the city has no individual privacy interests. “(The Gazette) specifically denies that the City has not been given authorization by statute or court decision to determine whether the demands of individual privacy clearly exceed the merits of public disclosure,” she wrote.

In addition, the city “has failed to meet its minimum duty under Montana’s Constitution and statutory law.”

“The City has not provided any documents to The Gazette in response to its document request, thereby violating the City’s duty to provide all information other than that believed to be subject to privacy interests,” The Gazette’s response states. The City “has impermissibly violated the public’s right to inspect and copy documents held or generated by a public body.”

The Gazette is petitioning the court to issue a writ of mandamus “requiring the City, and its officers, to provide public inspection of the documents provided to the Court.” Sheehy also asks for an immediate hearing and for attorneys’ fees and costs incurred by the Gazette “for enforcing the public’s right to know.”

Ehrlick said his initial records request came about because a source “led us to believe something may be happening at the landfill with personnel. What that is, we have no idea, because the city took us to court saying it doesn’t know which documents to release.

“Since we don’t have what is in them, we don’t know if there’s a story,” Ehrlick said. “We can’t know unless we see them. We have asked the court to make the city decide which information to release.

“We don’t know if there’s anything to write about, but we think the public is well-served by having that check,” he added. “We are curious that the city isn’t releasing a single document, sentence or word. It raises questions about what’s going on.”

Copyright 2014 The Billings Gazette. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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