City of Billings to appeal court order in disclosure lawsuit

2012-12-11T13:25:00Z 2012-12-26T07:34:03Z City of Billings to appeal court order in disclosure lawsuitBy ED KEMMICK ekemmick@billingsgazette.com The Billings Gazette

The city of Billings will appeal a Yellowstone County District Court decision ordering it to release the names of five city workers disciplined for viewing pornography on work computers.

Attorneys for the city filed a notice with Montana Supreme Court on Tuesday, stating that the city will appeal Judge Russell Fagg's order.

Fagg ruled last week in favor of The Billings Gazette, which went to court after the city refused to identify the disciplined employees and to provide other information related to an investigation of the workers.

Fagg ordered the city to release the names of the employees, copies of all investigative documents with only the names of uninvolved third parties redacted, and copies of the disciplinary letters issued to the workers, "in completely unredacted form."

Attorneys for the city -- Gerald Murphy and Emily Jones, with the Moulton Bellingham law firm -- filed a motion in District Court on Monday to stay Fagg's order pending the appeal to the Supreme Court.

That motion says, in part: "If the Gazette is allowed to obtain these documents during the pendency of the City's appeal, the very reasons for the appeal will be rendered moot. Once published in the newspaper, the damage to the employees' reputations and families will have been done, and the Montana Supreme Court will not then be able to grant effective relief."

Late Tuesday, The Gazette's attorney, Martha Sheehy, filed a motion in District Court opposing the city's request for a stay. Her motion makes the argument that a "stay impermissibly delays the public's right of access," and that impeding "the public's right to inspect documents during a year-long appeal is an intolerable restriction on the right to know."

Even if a stay is granted, Sheehy said, it should be "narrowly tailored" so that it protects identities but does not prevent the release of all documents in the case. 

The five employees were suspended for five days without pay last spring after an internal investigation showed that they had been using city computers to access pornography and other adult material.

Fagg rejected the city's argument that the disciplinary letters, known as "corrective action forms," were personnel documents not subject to public disclosure. He said the documents were the end product of an investigation into the workers' misconduct.

"The court disagrees with the assertion that simply filing a document in a personnel file automatically gives that document heightened protections of privacy," Fagg wrote.

The city also argued that the employees' privacy rights outweighed the merits of public disclosure.

Fagg, however, said that the employees lost their privacy rights because their misconduct directly relates "to their ability to effectively perform their job duties." He said the workers misused public resources, neglected their duties, violated the city's Internet policy and threatened the security of the city's computer network.

The court documents submitted by the city on Monday don't say anything about the grounds for the appeal. They only offer arguments in support of the motion to stay the court's order pending the appeal.

In her response, Sheehy argued that the city has no standing to assert the privacy rights of the employees. In his ruling, Fagg held that the city could assert the employees' privacy rights because the city could potentially be sued by the employees for disclosing their identities.

During the appeal process, Sheehy said, that standing no longer exists.

"Quite simply, there is no potential exposure to liability," she said. "This Court has ordered disclosure of the documents. The City cannot be held liable under any legal theory for complying with the Court's order."

On the issue of the speedy release of public documents, Sheehy said public officials are bound by state law to give citizens copies of public documents "on demand." Therefore, she continued, "The City's discretionary decision to appeal does not outweigh the constitutional presumption that all documents must be disclosed upon demand. A stay makes a mockery of the public's right to inspect public documents upon demand."

Though a stay in this case is inappropriate, Sheehy said, if one is granted it should be structured only to protect identities. She said there is no reason to continue shielding the contents of the disciplinary letters. "No damage to the employees or their reputations can come from disclosure, since the City has already summarized the discipline imposed on the individuals."

In another public records case, the city's appeal to the state Supreme Court delayed the release of public documents for nearly a year.

In that case, Fagg ruled in December 2010 in The Gazette's favor in a lawsuit that sought to compel the city to release a "due process letter" issued to a Police Department employee suspected of stealing money from the department.

The city appealed that decision to the Montana Supreme Court, which finally upheld Fagg's decision in November 2011, forcing the city to release the letter.

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