Barr v. Great Falls Intern. Airport, No. 03-536.

• Docket Nº: No. 03-536.
• Citation: 107 P.3d 471, 2005 MT 36, 326 Mont. 93
• Case Date: February 22, 2005
• Court: United States State Supreme Court of Montana

107 P.3d 471
2005 MT 36
326 Mont. 93

Jack BARR, Plaintiff and Appellant,
v.
GREAT FALLS INTERNATIONAL AIRPORT AUTHORITY, City of Great Falls Department of Police and State of Montana Department of Justice, Defendants and Respondents

No. 03-536.

Supreme Court of Montana.

Submitted on Briefs April 7, 2004.

Decided February 22, 2005.

107 P.3d 473

For Appellant: Robert L. Stephens, Jr., Southside Law Center, Billings, Montana

For Respondent Great Falls International Airport Authority: Ward E. Taleff, Alexander, Baucus, Taleff, Paul & Young, PLLC, Great Falls, Montana.

For Respondent City of Great Falls Department of Police: Kevin C. Meek, Davis, Hatley, Haffeman & Tighe, P.C., Great Falls, Montana.

For Respondent State of Montana Department of Justice: Robert F. James, Mark D. Meyer, Ugrin, Alexander, Zadick & Higgins, P.C., Great Falls, Montana.

Justice JOHN WARNER delivered the Opinion of the Court.

¶ 1 Jack Barr (Barr) appeals from an order of the Eighth Judicial District Court, Cascade County, granting Defendant Great Falls International Airport Authority (Airport), Defendant City of Great Falls Department of Police (GFPD), and Defendant State of Montana Department of Justice (State) summary judgment. We affirm.

¶ 2 We address the following issues on appeal:

¶ 3 1. Did the District Court err when it concluded a record of Barr's 1968 arrest was not confidential criminal justice information and thus Barr had no reasonable expectation of privacy in such information?

¶ 4 2. Did the District Court err in finding there was no violation of 42 U.S.C. §§ 1983 or 1985(3) in connection with Barr's privacy claims?

¶ 5 3. Did the District Court err in concluding the Defendants were not negligent per se?

¶ 6 4. Did the District Court err in concluding there was no duty as a matter of law owed to Barr and therefore his negligence claim failed?

¶ 7 5. Did the District Court err in concluding Barr's only remedy was under the Montana Wrongful Discharge from Employment Act?

BACKGROUND

¶ 8 In the Fall of 1998, Barr applied for a part-time security officer position with the Airport. During his interview for the position, Barr consented to a criminal background check.

¶ 9 The Airport participates in the Criminal Justice Information Network (CJIN), but must submit any criminal background request through an agency with computer terminal access to the CJIN database, which is a computer controlled telecommunications network that interfaces with computerized databases maintained by various law enforcement

107 P.3d 474

agencies throughout the nation. The National Crime Information Center (NCIC) is a computerized information system which links local, state, and federal criminal justice agencies for the purpose of exchanging information, including criminal history repositories of the states and FBI. GFPD is a terminal agency with access to the CJIN system; it has the capability to perform criminal background checks

¶ 10 On September 14, 1998, Bruce Sanford, an Airport security officer, contacted GFPD and requested a criminal background check on Barr for the preceding ten years. The background check did not reveal any arrests. Barr was hired as a part-time probationary security officer for the Airport on October 2, 1998.

¶ 11 On November 7, 1998, John Vanni (Vanni), an Airport security officer contacted GFPD employee Gina Vincent and, without permission from the Airport, requested a criminal background check on Barr. The result of this request revealed Barr had been arrested in Alaska in 1968 for criminal non support. Vanni reported this arrest to Cynthia Schultz, the Airport Manager, who told Vanni it was not his concern.

¶ 12 Barr was terminated from his employment at the Airport on March 18, 1999, prior to the expiration of the six-month probationary period. Barr filed this lawsuit on March 3, 2000, alleging a violation of his right to privacy, negligence per se, negligence, and violations of his civil rights. All three Defendants filed motions for summary judgment. Their motions were granted on July 2, 2003. Barr now appeals from the District Court's grant of these motions.

STANDARD OF REVIEW

¶ 13 This Court reviews a district court's grant of summary judgment de novo, applying the same evaluation under Rule 56, M.R.Civ.P., as the district court. Motta v. Philipsburg Sch. Bd. Trs., 2004 MT 256, ¶ 11, 323 Mont. 72, ¶ 11, 98 P.3d 673, ¶ 11 (citation omitted). The party moving for summary judgment has the initial burden of proving there are no genuine issues of material fact that would permit a non-moving party to succeed on the merits of the case, and if the moving party meets that burden, then the non-moving party must provide substantial evidence that raises a genuine issue of material fact in order to avoid summary judgment in favor of the moving party. Once it is established no genuine issues of material fact exist, the district court must then determine whether the moving party is entitled to judgment as a matter of law, and this Court reviews that determination to determine whether the district court erred. Motta, ¶ 11. Summary judgment is an extreme remedy which should not be substituted for a trial if a material factual controversy exists. Mathews v. BJS Constr., Inc., 2003 MT 116, ¶ 13, 315 Mont. 441, ¶ 13, 68 P.3d 865, ¶ 13 (citing Montana Metal Bldgs. v. Shapiro (1997), 283 Mont. 471, 474, 942 P.2d 694, 696).

DISCUSSION

ISSUE ONE

¶ 14 Did the District Court err when it concluded a record of Barr's 1968 arrest was not confidential criminal justice information and thus Barr had no reasonable expectation of privacy in such information?

¶ 15 Barr argues the unauthorized disclosure of criminal justice information by the State, and its use and dissemination by Vanni, was a violation of his right to privacy under Article II, § 10 of the Montana Constitution as well as a violation of the Montana Criminal Justice Information Act of 1979 (MCJIA), specifically § 44-5-503, MCA, § 44-5-504, MCA, and § 44-5-302, MCA. He also claims such was a violation of the 1974 National Crime Prevention Policy Compact (the Privacy Act), codified at 5 U.S.C. § 552(a) and § 44-5-601, MCA, et seq. Barr, in essence, claims the Defendants failed to meet state and federal constitutional and statutory standards imposed for the protection of his privacy.

¶ 16 The Defendants argue Barr's 1968 Alaska arrest was not confidential criminal justice information; rather, it was public information that anyone could access. They assert that Barr's right to privacy was not violated by any dissemination of this information.

107 P.3d 475

The State claims that, contrary to Barr's assertions, the civil remedy provisions of the Privacy Act do not provide a private cause of action against a state agency

¶ 17 The Montana Legislature has defined confidential criminal justice information as: criminal investigative information, criminal intelligence information, fingerprints and photographs, criminal...