After a court hearing Wednesday morning, a District Court judge said he hopes to decide within a week whether the city should be ordered to release information on disciplined employees to The Billings Gazette.
Judge Russell Fagg listened to arguments from attorneys for the city and for The Gazette for about a hour Wednesday. He has also been reviewing hundreds of pages of partially blacked-out documents the city provided to the newspaper in response to a public-information request.
The main point at issue is whether the city should have to disclose the identities of five employees who were suspended without pay for five days last spring for viewing inappropriate websites at work, on city-owned computers.
Martha Sheehy, representing The Gazette, said the city policy violated by the workers explicitly warned them that their Internet use might be monitored and that people using city-owned Internet accounts "should not assume they are provided any degree of anonymity."
The policy itself waives the right to privacy for the employees, Sheehy said, so if the court determines the workers were entitled to privacy in this case, the city might be opening itself to lawsuit by itself violating that privacy.
Fagg acknowledged the special nature of computer use by public employees — "I warn my friends, anything you send me could end up on the front page of The Gazette" — but he also had sharp questions for Sheehy.
He said there would seem to be a big difference between the city's monitoring the use of its own property and providing sensitive information to the whole city by disclosing it to The Gazette.
"What does the right of privacy protect?" he asked. "Does it protect anything?"
Emily Jones, of the Moulton Bellingham law firm, representing the city, said the city's electronic communications policy is strictly for internal personnel use.
"It does not waive the employee's right to privacy, and it certainly doesn't say anything about the city releasing that person's name to the newspaper," she said.
Sheehy told the judge that the city refused to say what positions the employees held or what departments they worked in, so she had no way of knowing whether any of them held positions of special public trust.
But some of them apparently had managerial duties, she said, and all of them committed "pretty substantial" violations. She said the workers made "repeated attempts to thwart" the city's security system in attempting to access pornographic sites and other blocked sites, putting the city's computer system at risk.
Jones countered that there was no evidence that anyone tampered with or tried to thwart the city's security system. She said the state security system used by the city was down for several weeks, including the week during which the employees' Internet use was monitored.
She said no one was disciplined for security breaches or illegal activities, only for violating the city's policy.
Jones also argued that "the right of privacy is paramount," and in this case "public humiliation" outweighs the public's right to know which employees were disciplined.
Fagg appeared to agree with that statement, saying that "by giving the names, we're basically involved in gossip, and that bothers me."
"The embarrassment is unfortunate, but it's not a defense," Sheehy responded.
"We have to remember, it's the people who put themselves in these high-risk situations who are to blame, not The Gazette and not the city," she said.
Fagg will be ruling on three issues raised by The Gazette — whether the employees' names should be released; whether the city has any standing to assert the privacy rights of the unnamed individuals; and whether the city's redaction of released documents was so extensive that it violated the public's right to know.