Gazette sues city for records of employee discipline for Internet abuse

2012-10-11T10:20:00Z 2012-12-05T18:09:19Z Gazette sues city for records of employee discipline for Internet abuseBy ED KEMMICK ekemmick@billingsgazette.com The Billings Gazette

The Billings Gazette filed a lawsuit against the city of Billings on Thursday, asking for the release of public records dealing with city workers who were disciplined for viewing inappropriate websites on the job.

The state District Court lawsuit seeks a court order compelling the city to produce documents in the case of five workers who were suspended without pay for five days last spring.

A Gazette reporter filed three requests for public information in August. One sought copies of all written reprimands or records of other disciplinary actions affecting employees of the City Attorney's Office between Feb. 1 and Aug. 24 of this year.

Another asked for a list of all city employees who had been suspended or subjected to loss of pay or benefits in the previous six months. The third request was for the documentation of the steps taken to determine what websites were being accessed by city workers.

In a letter dated Sept. 10, City Attorney Brent Brooks said the city would supply the information regarding the Internet searches. It has not yet provided that data.

As for the other two requests, Brooks said, "We cannot fulfill these requests because to do so would violate individual city employees' right to privacy." He also said that because of the "unusual request" filed by The Gazette, the city asked for a second opinion from the Moulton Bellingham law firm of Billings.

Attorneys there "concurred with my assessment and recommendation to the City Administrator (Tina Volek) who also agrees with this assessment," Brooks wrote.

In the lawsuit, Gazette attorney Martha Sheehy cited the right-to-know provision of the Montana Constitution and said the city "impermissibly violated the public's right to inspect and copy documents held or generated by a public body."

The city has not identified the five workers and would not say what positions they held or where in the city they worked. Assistant City Administrator Bruce McCandless did tell The Gazette that some of the employees may have had some managerial responsibilities but that none of them held high-level management positions.

"The law is well settled," the suit says. "Public employees who occupy positions of trust have no legitimate right to privacy to investigations of their conduct."

The suit further says that managerial employees "clearly had no reasonable expectation of privacy" and nonmanagerial employees "have limited privacy interests in the misuse of government time and computers in the accessing of inappropriate internet sites."

"The public's right to know clearly outweighs any privacy interests which might be asserted by a public employee disciplined for accessing or repeatedly attempting to access inappropriate materials while at work for the City," the suit continues.

In addition to asking for a court order requiring the city to produce the requested documents, the suit asks that the city pay the newspaper's attorney fees and costs.

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