City appeals ruling in disclosure lawsuit to state Supreme Court

2013-03-14T19:00:00Z 2013-03-15T00:01:37Z City appeals ruling in disclosure lawsuit to state Supreme CourtBy ED KEMMICK ekemmick@billingsgazette.com The Billings Gazette

The city of Billings filed an appeal with the Montana Supreme Court on Thursday, asking it to overturn a district judge's order to release the names of five city workers disciplined for viewing pornography at work.

District Judge Russell Fagg issued the order in December, ruling in favor of The Billings Gazette, which had sued the city when it refused to identify the employees.

In its appeal, the city says the workers have constitutionally protected privacy rights that they did not waive upon becoming public employees.

The appeal also says Fagg erred in determining that investigative files compiled by the city were public documents and in ruling that disclosure of the information in question would somehow serve the public interest.

The five employees were suspended for five days each between last April and August for viewing sexually explicit content on city-owned computers while they were at work.

After the city filed its intent to appeal his decision, Fagg released disciplinary letters issued to the employees, with only their names and other identifying information blacked out.

Since those were the documents whose release was sought by The Gazette, virtually the only information still being withheld by the city is the names of the employees.

Nevertheless, the appeal argues at length that the disciplinary letters are personnel and employment records that are entitled to privacy.

The appeal, filed on the city's behalf by Emily Jones and Gerald Murphy of the Moulton Bellingham law firm, argues that opening the city's disciplinary processes to public scrutiny "would have a chilling effect on honest and critical communication and performance evaluation of public employees."

The appeal also argues that the employees — all of them unelected, non-managerial workers who were not accused of any illegal activity — do not have to give up their privacy rights simply because they are on the public payroll.

In previous cases ruled on by the Montana Supreme Court, the appeal says, information was considered public because the public employees in question were accused of assault, embezzlement, sexual harassment and other crimes.

In this case, it says, the discipline "related to the employees' character, integrity, honesty and personalities — the type of information this Court acknowledges society reasonably expects to remain private."

If all such documents are public, the city argues, "the Gazette could simply park a chair in the City's human resources department and report every violation of employment policy ... on a daily basis."

Fagg based his ruling, in part, on the city's Internet policy, which warned workers they had no expectation of privacy when using city computers.

In the appeal, the city says that policy simply informs employees that their IP addresses can be traced to their computers and "does not mean the employees could expect their names to be published in the newspaper for viewing adult material."

As for serving a public interest, the city says The Gazette cannot argue that its reporting spurred action by the city, since it sought the information months after the city had already disciplined the employees.

"Thus, any argument that the press plays a 'watchdog' role for these kinds of circumstances has no merit here," the appeal says.

And since the employees have already been disciplined and can't be recalled or voted out of office, nothing is to be gained by printing their names.

"It only serves to embarrass and humiliate the employees and their families and damage their reputations in the community and among their coworkers," it says.

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