When a newspaper requests information, there are plenty of ways government bodies can try to avoid releasing it. But the city of Billings, MT, has come up with a novel tactic: Sue the paper simply for asking.
Now, because of the lawsuit, a state judge is currently deciding how to weigh the public’s right to know against an individual’s right to privacy in a place where both are part of the state’s constitution.
Events leading up to this strange legal case stem from last spring, when someone called in a tip to the Billings Gazette, the local daily. The source suggested there might be some mishandling of public funds at the city landfill. So reporters at the paper did what journalists do: They started poking around and asking city officials about it.
According to the paper’s editor, Darrell Ehrlick, officials told reporters an investigation was underway to determine if indeed something stinky was happening at the city dump. The Gazette followed up on the progress of the probe every few weeks to see if there was anything to report. After a while—“As with so many things in government, a journalist’s timeline and a government’s are two very different things,” Ehrlick says—officials indicated the investigation was over, and the city would respond to a formal inquiry about it.
On June 26, 2014, Ehrlick filed a written public records request on behalf of his paper, asking for any record the city had related to an investigation of landfill funds or property being mishandled, misused, or misappropriated.
The timeline of events was pretty straightforward up to that point. “We thought that the process was working fairly well,” Ehrlick told CJR.
Until it wasn’t. Instead of responding to the records request, the city of Billings sued the newspaper.
The city’s argument? According to reports on the case, if the Gazette got the information it wanted, the paper would be able to determine the names of city employees who had been disciplined for their actions. Those city employees might then be able to sue the city for violating their right to privacy by releasing information about them to the paper.
The city wants the judge to review the documents and determine which ones to give the Gazette. In the meantime, the paper is racking up legal fees for an attorney to fight the lawsuit in court.
The paper’s attorney, Martha Sheehy, declined to discuss the case because it is in litigation; city attorney John “Kelly” Addy said he would need to get clearance to discuss the case but was not able to do so prior to publication.
Tension between personal privacy and public records is nothing new, of course. As CJR’s Jonathan Peters has pointed out, you can’t find out a stripper’s real name through an open records request in Washington state, despite exotic dancers there having to obtain a state license to twerk. Disputes over access to gun-permit records are relatively common and sometimes heated. Corporations can have similar concerns, too. There’s even a name—“reverse” FOI— for the process in which a third party, usually a business, intervenes to try and stop the government from releasing information it has provided.
Still, the particular maneuver here—having the city itself initiate litigation—is unusual.
One factor in the city’s thinking seems to be an explicit provision about a right to privacy in Montana’s state constitution, one of only 10 nationwide. The language states that the “right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.” In the early 1990s, a Montana mayor invoked that right in an effort to block release of a government report investigating sexual harassment allegations against him. The city council favored release of the report, but sought a court judgment ordering its disclosure. The case made it all the way to the state Supreme Court, which ruled in favor of releasing the report.
In the Billings case, the court “is the one institution” capable of making a proper ruling about how to balance the rights of privacy and public disclosure, the city argued in one of its filings. (Here is one of the paper’s reply briefs.)
Concern that governments might use privacy provisions to keep embarrassing information from public view has prompted the press association in neighboring Wyoming to oppose a proposed privacy amendment to the state constitution there.
In Billings, lawyers for the paper and the city appeared in a local courtroom to argue the case on Jan. 12. Judge Michael Moses expressed skepticism of the city’s legal maneuver, according to a report in the Gazette.
“I am terribly concerned that the Gazette gets sued and nothing is disclosed to them at all, not even an outline of what may or may not have happened,” he said, adding, “there’s not much that should be redacted if you are legitimately protecting privacy rights.” Moses is expected to rule shortly, though the city may appeal if he orders the release of the documents.
Adam Marshall, a legal fellow with the Reporters Committee for Freedom of the Press, also expressed concern about the situation.
“It’s unfortunate, I think, from a citizen’s perspective when they see their government suing to prevent the release of information,” he said. “I wonder what it does to the citizens who are supposed to have a right of access to what their government is doing. What does that say about the state of transparency and openness for the city?”
For Ehrlick, the Gazette’s editor, the situation has been unusual—especially since the paper has acknowledged that some redaction may be appropriate.
“We haven’t said we believe all the information about all these employees should be public,” he said. “We’ve just said, ‘Tell us what happened.’”
The Gazette’s editorial board probably put it best in a punchy editorial last week: “There’s something that stinks about this entire case—and it isn’t the landfill.”