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Judge hears case on BPD investigation records

Bridget LeFeber, representing the city of Billings, addresses the court at an April 27 hearing in front of Yellowstone County District Court Judge Michael Moses regarding the release of investigation documents relating to Billings Police Department officers alleged on-the-job sex.

The Billings Gazette and KTVQ want the city to pay their legal fees after intervening in a court case meant to keep secret the names of police officers disciplined for sexual misconduct.

The two media outlets have asked District Court Judge Donald Harris to order the city to pay legal fees for the newspaper and television station, saying they wrongly had to go to court to enforce the public’s right to know. That right is laid out in the state and U.S. constitutions.

The legal wrangling stems from public information requests The Gazette made regarding the discipline for sexual encounters between three Billings Police Department officers and one city employee, which took place either on city property or while the individuals were on duty.

The trysts were discovered during an unrelated investigation into the city employee’s drug thefts at the BPD evidence locker.

The media outlets argue the fees are warranted because the city breached the public’s right to know. They say it exceeded and later violated court orders, and that it failed to act as a neutral party.

The city opposes the request, saying it worked diligently to redact the requested 1,000-plus pages of information while ensuring privacy protections for third parties. It also noted that some redactions the court ordered were more extensive than those the city had proposed.

Steps in the case

The attorneys for the three BPD officers filed a request for a temporary restraining order in district court on Friday, April 20, to bar the city from releasing the officers’ names, which media had requested. The restraining order was granted.

At the same time, the officers asked the judge to seal the file, asserting the seal was needed to protect their privacy. The city did not oppose the motion to seal, and Judge Michael Moses granted the request.

But the city had also told The Gazette it considered the officers’ names public information and would release them, along with other requested information, the following Monday, April 23.

Consenting to the officers’ request to seal the entire file, rather than substitute fictitious and unidentifying names such as “John Doe,” meant the city breached the public’s right to know, the media outlets argue. Sealing a court file is an “extraordinary remedy which always raises constitutional concerns,” media attorney Martha Sheehy wrote in her brief on the fees motion.

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“In short, the City participated in requesting the most egregious and extensive restriction on the public’s right to know – the sealing of a court file – despite the fact the City Attorney had already determined, after researching the law, that the Officers’ names should be disclosed,” Sheehy wrote.

The city later exceeded the temporary restraining order by failing to file redacted versions of documents The Gazette requested in a timely manner. The newspaper did not receive key documents the city had earlier agreed to provide until June 7.

The media say the city then violated the restraining order when the three officers released their own names to the public on a local radio show. The city is legally responsible for its employees’ actions, the media say.

Finally, the city failed to act neutral in the case, the media say, arguing it failed to notify The Gazette about the officers’ request for a restraining order – an order that effectively denied a main portion of The Gazette’s information request. The city also substituted the original judge only two business days before a key hearing in the case.

In opposing the motion, the city said it should not be faulted for consenting to the file being sealed, since it was up to the judge whether to do so. It also said it was not obligated to notify The Gazette of the officers’ filings, since The Gazette was not a party to the case at that time.

The city said it was not responsible for the officers releasing their own names and that they had a First Amendment right to do so.

The media responded that they did not. The First Amendment doesn’t provide for unlimited protection of speech, Sheehy wrote. A protective order like the one in the case at hand can curtail those rights, she said.

The city also asserted the media had missed a deadline for requesting attorney fees. That request must be made within 14 days of "entry of judgment," or final order in the case. The city said that to the extent the media believe a June order from the judge constituted a judgment, the deadline had been missed.

But the court’s filing was merely an order and clearly not a judgment, the media responded.

The media outlets are asking for a hearing to be set to determine whether attorney fees will be awarded. If granted, they propose a second hearing if the parties are not able to agree on reasonable attorney fees.

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