Public entities shouldn't use the privacy rights of their employees as a shield against the public’s right to know, a Billings district court judge suggested Friday.
During a hearing in Yellowstone County District Court, Judge Don Harris said he was concerned that a sexual misconduct case involving city employees, which came to light earlier this year, could wrongly be used by the city to justify punting on its public disclosure obligations.
The hearing was to allow arguments on whether the city should pay attorney fees for The Billings Gazette and KTVQ, which are sharing an attorney. The news outlets made the request in July. The city opposes the request.
The case stemmed from public information requests The Gazette made regarding the discipline for sexual encounters between three Billings Police 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 drug thefts at the BPD evidence locker.
In the hearing Friday, Harris said he worried about the city hiding from its public disclosure duties behind individual privacy rights.
“I‘m concerned about a scenario where public entities can tell their employees, ‘Listen, we think you’re wrong. But you have these individual rights to privacy, and as long as you assert them, and we won’t take up a position against you, then we’re shielding,’” the judge said.
The city had notified The Gazette it believed it was legally obligated to release the officers’ names, as the newspaper had requested. The city had already released the name of the female civilian city employee involved.
But when attorneys for the three male police officers told the city they were seeking a temporary restraining order blocking the city from releasing the names, the city didn’t fight it.
Bridget LeFeber, a Bozeman attorney representing the city of Billings, defended the city’s actions.
She said the city did not oppose the motion to seal because it wanted to “maintain the status quo” while the court decided on the case.
She also said the city properly navigated the competing interests of individual privacy and the public’s right to know, and had acted carefully to protect the privacy of third parties named in the documents that the media sought.
Attorneys for the police officers who filed the case also attended the hearing, making brief arguments. Layne Scheveck said attorney fees should not be awarded because the officers had sought to do the right thing in making their own names public. He said the restraining order was “a one-way street” blocking only the city from releasing the officers’ names, and that the officers themselves were free to do so.
Harris said he would issue a ruling on whether to award attorney fees sometime in the coming 30 days.