Board of Trustees v. Cut Bank Pion. Press

• Decision Date: 08 May 2007
• Docket Number: No. DA 06-0074.,DA 06-0074.
• Citation: 337 Mont. 229,160 P.3d 482,2007 MT 115
• Parties: BOARD OF TRUSTEES, CUT BANK PUBLIC SCHOOLS, Petitioner and Respondent, v. CUT BANK PIONEER PRESS, Respondent and Appellant. Pioneer Press, Petitioner and Appellant, v. Board of Trustees, Cut Bank Public Schools, Respondent and Respondent.
• Court: Montana Supreme Court

160 P.3d 482

2007 MT 115

337 Mont. 229

BOARD OF TRUSTEES, CUT BANK PUBLIC SCHOOLS, Petitioner and Respondent, v. CUT BANK PIONEER PRESS, Respondent and Appellant.

Pioneer Press, Petitioner and Appellant, v. Board of Trustees, Cut Bank Public Schools, Respondent and Respondent.

No. DA 06-0074.

Supreme Court of Montana.

Submitted on Briefs October 4, 2006.

Decided May 8, 2007.

For Appellant: Peter Michael Meloy and Robin A. Meguire, Meloy Trieweiller, Helena, Montana.

For Respondent: Debra A. Silk and Tony Koenig, Montana School Boards Association, Helena, Montana.

For Amici Curiae: David K.W. Wilson, Jr., and James P. Reynolds, Reynolds, Motl & Sherwood, P.L.L.P., Helena, Montana.

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 Appellant Cut Bank Pioneer Press (Pioneer) appeals from the order of the Ninth Judicial District Court, Glacier County, denying its request for disclosure of records regarding the imposition of student discipline. Pioneer brought this action under the "right to know" provision of Article II, Section 9, of the Montana Constitution to gain access to documents reflecting disciplinary actions taken with regard to certain Cut Bank High School students involved in a BB gun incident. We reverse.

¶ 2 We consider the following issues on appeal:

¶ 3 (1) Does Pioneer have standing to pursue this appeal?

¶ 4 (2) Did the District Court err when it denied Pioneer's request to obtain the student disciplinary records:

a. Does the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g, (FERPA) prohibit the release of the redacted records?

b. Does the Montana Constitution require disclosure of the redacted records?

BACKGROUND

¶ 5 On September 26, 2005, the Board of Trustees, Cut Bank Public Schools (Board), held a properly noticed meeting to determine whether two students of the Cut Bank Public Schools should be disciplined for their part in shooting other students with plastic BBs on school property, and, if so, what discipline should be imposed. Members of the public, including a representative of Pioneer, attended the meeting.

¶ 6 The chairperson of the Board made an initial determination, pursuant to § 2-3-203(3), MCA (2005), that the demands of individual privacy clearly exceeded the merits of public disclosure and ordered the Board meeting closed to the public. At some point during the closed meeting, the students or their representatives were asked to waive their right to privacy and each declined to do so. In the closed meeting, the Board met with the students involved and heard from several character witnesses who were permitted to attend the meeting. While in the closed session, the Board determined what disciplinary action to take and then reconvened in open session. A member of the Board, upon advice of counsel who was present, moved the Board to proceed as determined in the closed session, without specifying what action would be taken with respect to the students, but apparently referenced the students involved by an assigned student number. The motion was approved.

¶ 7 The Board's previous practice regarding student discipline issues was to publicly reveal the discipline meted out to students by referencing each student by an anonymous number only. Leanne Kavanagh (Kavanagh), the editor of Pioneer, asked the Board members why they had deviated from their previous practice and was told that the Board's attorney advised them that the disciplinary action taken was not public information due to privacy concerns. The Board informed Kavanagh that if she wanted to know the outcome of the closed session, she would have to ask the students' parents who were in attendance. Kavanagh did this and was informed by one of the parents that the Board had told the parents not to reveal what disciplinary actions were imposed.

¶ 8 Kavanagh then emailed Wade Johnson (Johnson), the Superintendent of the Cut Bank Schools, and requested documentation relating to the disciplinary actions taken against the students involved. Kavanagh did not request the students' names and specifically asked that the students be identified by assigned numbers or that the names be redacted. Johnson did not provide Kavanagh with the requested information, and instead, the Board filed a petition in the District Court asking for an in camera inspection and for the court to determine whether the disciplinary records should be disclosed. Pioneer followed by filing a petition in the District Court to obtain the "discipline order" or other document reflecting the action taken by the Board. Pioneer's petition requested that the District Court order the Board to make public all documents in its custody, related to the discipline given to the students caught shooting BBs with any personally identifiable information redacted. At the evidentiary hearing, Pioneer amended this request to seek only the disciplinary action taken and the anonymous student identification number for the students involved.

¶ 9 The District Court consolidated the two petitions and conducted an evidentiary hearing on October 26, 2005. Kavanagh and Michael Koepke, chairperson of the Board, both testified at the hearing.

¶ 10 The District Court based its decision almost entirely on the federal Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g (FERPA), which it applied to the results of the disciplinary proceedings conducted by the Board and prohibited the Board from disclosing "the names of the students, any violations committed, and any actions imposed" without the consent of the students and their parents. The District Court concluded that an "analysis of the interaction of Article II, § 9 and Article II, § 10 of the Montana Constitution in this situation is not necessary" because "FERPA does apply to the records of the disciplinary proceeding, and . . . preempts any Montana constitutional or statutory law with respect to the disclosure of such records or results ...." The court further held that no relief is available to Pioneer under Article II, Section 9, of the Montana Constitution, or under § 2-6-102, MCA. Pioneer appeals.

STANDARD OF REVIEW

¶ 11 This Court reviews a district court's conclusions of law, including issues of constitutional law, to determine whether they are correct. Bryan v. District, 2002 MT 264, ¶ 16, 312 Mont. 257, ¶ 16, 60 P.3d 381, ¶ 16.

DISCUSSION

¶ 12 1. Does Pioneer have standing to pursue this appeal?

¶ 13 As a preliminary matter, the Board asserts that Pioneer lacks standing to bring a petition under Article II, Section 9, of the Montana Constitution and to pursue an appeal before this Court. The Board contends that Pioneer failed to allege how it has been personally injured, or threatened with immediate injury, by the alleged constitutional violation. Pioneer responds that it asserted a personal interest in the records at issue and alleged an injury resulting from the denial of those records, and thus has standing to pursue this appeal.

¶ 14 The general rule for prohibiting new issues on appeal does not apply to jurisdictional issues such as standing. Bryan, ¶ 19. Thus, the issue of standing is properly before this Court.

¶ 15 "Standing is a threshold jurisdictional question `especially' in cases `where a statutory or constitutional violation is claimed to have occurred ....'" Fleenor v. Darby School Dist., 2006 MT 31, ¶ 7, 331 Mont. 124, ¶ 7, 128 P.3d 1048, ¶ 7. To establish standing to bring suit, the complaining party must clearly allege a past, present, or threatened injury to a property or civil right. Fleenor, ¶ 9 Further, the alleged injury must be distinguishable from the injury to the public generally, but the injury need not be exclusive to the complaining party. Fleenor, ¶ 9 (citing Bryan, ¶ 20). A plaintiff must have "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens presentation of issues." Bryan, ¶ 20 (quoting District No. 55 v. Musselshell County, 245 Mont. 525, 528, 802 P.2d 1252, 1254 (1990). Persons who fail to allege any personal interest and injury, beyond that common interest of all citizens and taxpayers, lack standing. Fleenor, ¶ 9 (citation omitted).

¶ 16 The Montana Constitution at Article II, Section 9, grants the public's right to know:

Section 9. Right to know. No person shall be deprived of the right to examine documents or to observe the deliberation of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.

Corresponding statutes protect public access to government documents, including § 2-6-102(1), MCA, which provides, "[e]very citizen has a right to inspect and take a copy of any public writings of this state . . . ." The rights granted by the right to know provision extend to media entities as well. Yellowstone County v. Billings Gazette, 2006 MT 218, ¶ 17, 333 Mont. 390, ¶ 17, 143 P.3d 135, ¶ 17 (citation omitted).

¶ 17 In Fleenor, the plaintiff filed suit alleging that her right to know had been violated when the school district failed to notify her of the decisions and related school board votes leading to the hiring of a school superintendent. The district court dismissed Fleenor's complaint for lack of standing and, on appeal, this Court affirmed. Although noting that Montana's Constitution is to be "broadly and liberally construed," Fleenor, ¶ 8, we determined that "[e]ven a broad reading of Article II, Sections 8 and 9 does not excuse Fleenor from meeting the well established standing requirements reflected in our jurisprudence"—that a plaintiff must allege a past, present or threatened injury, and allege an injury that is distinguishable from the injury to the general public. Fleenor, ¶ 9 We concluded that Fleenor lacked standing because she "insists no allegation of injury is necessary, [and] she makes none. In fact, she does not even allege that the...