Officials cite privacy rights in suit; documents show Billings workers accessed porn at work

Gazette lawsuit seeks names of city employees who viewed inappropriate websites on the job
2012-10-31T06:00:00Z 2012-10-31T21:56:03Z Officials cite privacy rights in suit; documents show Billings workers accessed porn at workBy ED KEMMICK ekemmick@billingsgazette.com The Billings Gazette

Attorneys for the city of Billings argue in court documents that it has no legal obligation to disclose the identities of city workers who were disciplined last spring for viewing inappropriate websites at work.

In response to a lawsuit filed last month by The Billings Gazette, the city said that while "disclosure of the identity of these individuals may help to sell newspapers, it is not in the public interest. Such disclosure would only serve to subject the individuals to public humiliation, damage their reputations, and possibly have a permanent, devastating effect on their lives and their families."

The city's response to the newspaper's suit was filed Thursday. On the same day, the city released to The Gazette a large batch of documents related to the case.

Those documents show that four of the five disciplined employees were accessing pornography, and in some cases hard-core porn. The fifth employee, based on the information released by the city, was apparently accessing a "female escorts" site with pictures of partially nude women.

The city also released a series of emails, mostly between Karla Stanton, the city's human resources manager, and David Watterson, the information technology manager, discussing the investigation of the employees who were eventually disciplined.

The emails, as well as the documents related to searches of employees' computers, are heavily redacted — six consecutive pages of emails are entirely blacked out, in one instance — to avoid revealing the names of affected employees or third parties mentioned incidentally.

In one email to someone whose name has been blacked out, and cc'd to Stanton, Watterson warns, "Be aware, some of the images are very adult in nature."

In another email, Watterson says, referring to one employee's computer, "Whether the PC has inappropriate information on it or not, we have a week's worth of traffic showing a pattern of seeking nudity/porn. The existence of material on the PC just further proves the addiction."

All five employees were suspended for five days without pay. In one of several court documents filed last week, the city says the workers "have been severely disciplined for their conduct, and public disclosure of their identities would serve no purpose, other than to embarrass and humiliate them."

The Gazette, in the lawsuit filed in District Court by Billings attorney Martha Sheehy, asserted that "public employees who occupy positions of trust have no legitimate right of privacy to investigations of their conduct."

The city has not disclosed what positions the disciplined employees held, but Assistant City Administrator Bruce McCandless did say that while none of them held high-level management positions, some may have had managerial responsibilities.

The Gazette's suit said 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."

In its response, filed by Gerald Murphy and Emily Jones of the Billings law firm Moulton Bellingham, the city argues that public employees have a diminished right to privacy only "when the information sought relates to fitness to perform a public duty."

The response makes reference to another suit filed by The Gazette against the city, when it sought the release of a due-process letter given to Police Department employee Deanna Anthony, who diverted public funds to make thousands of dollars' worth of personal purchases.

The Montana Supreme Court ordered the city to release the letter, the city's response acknowledges, but only because Anthony misappropriated public funds, which the high court said was "the very aspect of her job that renders it a 'position of trust.'"

Anthony was accused of embezzlement, a criminal activity, while viewing inappropriate material on the Web "is not a crime, it is not illegal, and it did not affect employees' ability to do their jobs," the city argues.

Because the city gave The Gazette everything it requested, short of disclosing the names of the employees and redacting other clearly protected information, "The Gazette has its story," the city says. "There is no compelling state interest in the public release of the employees' names. The right to know does not extend to the right to ruin people's lives for the sake of selling more newspapers."

The city also filed a motion asking a judge to review unredacted copies of everything provided to The Gazette "to determine whether the individual employees' right of privacy should remain protected.

It further asks the judge not to set a hearing on the case until that review has been conducted and a determination has been made on the necessity of a hearing.

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