Bozeman Daily Chronicle v. City of Bozeman Police Dept.

• Decision Date: 27 August 1993
• Docket Number: No. 93-127,93-127
• Parties: , 21 Media L. Rep. 2303 BOZEMAN DAILY CHRONICLE, Plaintiff, Respondent, and Cross-Appellant, v. CITY OF BOZEMAN POLICE DEPARTMENT, Defendant, Appellant, and Cross-Respondent, and Gallatin County Sheriff's Department, Defendant and Respondent.
• Court: Montana Supreme Court

Page 435

859 P.2d 435

260 Mont. 218, 21 Media L. Rep. 2303

BOZEMAN DAILY CHRONICLE, Plaintiff, Respondent, and Cross-Appellant, v. CITY OF BOZEMAN POLICE DEPARTMENT, Defendant, Appellant, and Cross-Respondent and Gallatin County Sheriff's Department, Defendant and Respondent.

No. 93-127.

Supreme Court of Montana.

Submitted on Briefs July 29, 1993.

Decided Aug. 27, 1993.

James P. Reynolds and David K. W. Wilson, Jr., Reynolds, Motl, Sherwood & Wright, Helena, for plaintiff, respondent and cross-appellant.

Paul J. Luwe, Bozeman City Atty., Bozeman, for defendant, appellant and cross-respondent.

Mike Salvagni, Gallatin County Atty., Bozeman, for defendant and respondent.

NELSON, Justice.

This is an appeal from a Memorandum and Order of the Eighteenth Judicial District Court. Defendant City of Bozeman Police Department (City) appeals that portion of the judgment which requires the City to pay the plaintiff's attorney's fees. The plaintiff Bozeman Daily Chronicle (Chronicle) appeals that portion of the judgment which denies its request for the release of investigative documents. We affirm the award of attorney's fees and remand with instructions to the District Court with respect to the release of investigative documents.

The issues on appeal are as follows:

1. Must the investigative documents requested by the Chronicle be released by the City and the Gallatin County Sheriff's Department (Sheriff)?

2. Is the Chronicle entitled to an award of its attorney's fees?

On or about March 8, 1992, a cadet at the Montana Law Enforcement Academy (Academy) in Bozeman, Montana, made an allegation of sexual intercourse without consent against an off-duty Bozeman city police officer (police officer). The Sheriff conducted an investigation and made a request for prosecution to the Gallatin County Attorney's Office.

The Gallatin County Attorney recused his office and referred the case to the Montana Department of Justice, County Prosecutor Services Bureau. That office referred the case to the Missoula County Attorney. The police officer was placed on administrative leave with pay pending the outcome of the investigation.

The Missoula County Attorney, Robert Deschamps, III, and two of his deputies reviewed the file and conducted follow-up interviews with the alleged victim. On April 20, 1992, Mr. Deschamps sent a letter to John Connor, Chief of the County Prosecution Services Bureau. Mr. Deschamps concluded that no criminal charges should be filed. However, Mr. Deschamps stated that it was the collective opinion of him and his deputies that "[the police officer] should not be allowed to continue working as a law enforcement officer because of inappropriate use of his position in relation to his contacts with women." On April 21, 1992, the police officer resigned.

Approximately a week after the incident at the Academy which prompted the investigation, Marlo Milliken, a Chronicle reporter, was informed by Greg Noose, the administrator of the Academy, that an "incident" had occurred. Ms. Milliken went to the Sheriff's Office, where she was given some general information concerning the incident and was shown the initial offense report.

Ms. Milliken and the editor of the Chronicle, Bill Wilke, attempted to obtain the police officer's name and the investigative documents regarding the incident from the City and from the Sheriff. The City and the Sheriff refused to turn over this information to the Chronicle, claiming that it was confidential criminal justice information.

On April 30, 1992, the Chronicle filed a Complaint and a Petition for an Order to Show Cause (Petition) as to why the police officer's name and the investigative documents should not be released. The Complaint and Petition alleged that the failure to release that information violated Article II, Section 9 of the Montana Constitution. The Chronicle also requested its attorney's fees incurred in enforcing its constitutional rights, pursuant to § 2-3-221, MCA.

A hearing on the Petition was held on May 22, 1992. At the close of the hearing, the District Court ruled from the bench that the name of the police officer should be released, citing this Court's decision in Great Falls Tribune v. Cascade County (1989), 238 Mont. 103, 775 P.2d 1267. The District Court took under advisement the matter of the release of the investigative documents and award of attorney's fees and ordered the parties to file briefs by May 29, 1992.

On July 31, 1992, the District Court entered a Memorandum and Order requiring the City and the Sheriff to provide the Chronicle with a copy of the initial offense report but denying the Chronicle's request for investigative documents. The reason given for this ruling by the District Court was that the demands of individual privacy of the alleged victim and witnesses exceeded the merits of public disclosure. This Memorandum and Order did not address attorney's fees and, on September 3, 1992, the Chronicle moved the District Court to amend its Order to include an award of such fees.

All parties briefed the issue of attorney's fees and, on October 26, 1992, the District Court ordered that the City pay the Chronicle's reasonable attorney's fees in bringing its action, pursuant to § 2-3-221, MCA. Thereafter, the Chronicle and the City stipulated to a reasonable amount of attorney's fees, with the City reserving the right to object to the award of attorney's fees itself. On December 8, 1992, a final judgment in this case was entered. The City appealed the award of attorney's fees and the Chronicle cross-appealed the denial of the release of the investigative documents.

Our standard of review relating to discretionary trial court rulings, such as awarding attorney's fees, is whether the trial court abused its discretion. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 604. Our standard of review relating to conclusions of law is whether the trial court's interpretation of the law is correct. Steer, 803 P.2d at 603.

I--RELEASE OF INVESTIGATIVE DOCUMENTS

In addition to the name of the police officer, the Chronicle sought release of the investigative documents prepared in connection with the alleged sexual assault by the police officer against an Academy cadet. The District Court determined that such documents were primarily confidential criminal justice information and refused to release the same to the Chronicle.

Criminal justice information under the Montana Criminal Justice Information Act of 1979 (the Act), §§ 44-5-101, et seq., MCA, is classified as public criminal justice information and confidential criminal justice information.

Public criminal justice information means information:

(a) made public by law;

(b) of court records and proceedings;

(c) of convictions, deferred sentences, and deferred prosecutions;

(d) of postconviction proceedings and status;

(e) originated by a criminal justice agency, including:

(i) initial offense reports;

(ii) initial arrest records;

(iii) bail records; and

(iv) daily jail occupancy rosters;

(f) considered necessary by a criminal justice agency to secure public assistance in the apprehension of a suspect; or

(g) statistical information.

Section 44-5-103(12), MCA.

Confidential criminal justice information means:

(a) criminal investigative information;

(b) criminal intelligence information;

(c) fingerprints and photographs;

(d) criminal justice information or records made confidential by law; and

(e) any other criminal justice information not clearly defined as public criminal justice information.

Section 44-5-103(3), MCA.

With some qualifications, public criminal justice information may be disseminated without restriction. Section 44-5-301, MCA. The dissemination of confidential criminal justice information, on the other hand, is restricted

to criminal justice agencies, to those authorized by law to receive it, and to those authorized to receive it by a district court upon a written finding that the demands of individual privacy do not clearly exceed the merits of public disclosure[.]

Section 44-5-303, MCA.

In this case, because the Chronicle is not a criminal justice agency, the only way that the Chronicle can obtain access to the confidential criminal justice information at issue is (1) if it is authorized by law to receive such information; or (2) upon order by a district court after the statutory written finding is made.

A. Authorized by Law

Article II, Section 9 of the Montana Constitution, the "Right to Know" provision, provides:

No person shall be deprived of the right to examine documents or to observe the deliberations 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.

We have previously held that a person is "authorized by law" to receive confidential criminal justice information on the basis of that constitutional provision. Allstate Ins. Co. v. City of Billings (1989), 239 Mont. 321, 325, 780 P.2d 186, 188.

In Allstate, an insurance company sought police investigation files relating to the death of its insured. The insured, who was HIV positive at the time of his death, died of an intravenous drug overdose. Allstate, 780 P.2d at 187. In his application with the insurance company, the insured denied ever being treated for AIDS and denied prior illegal drug use. Allstate, 780 P.2d at 186-87. The insurance company believed that the investigative files would assist it in determining whether the insured had misrepresented facts in his insurance application, which would preclude coverage. Allstate, 780 P.2d at 187.

The trial court interpreted § 44-5-303, MCA, to mean that "authorized by law" required specific authorization by statute. We concluded that the trial court's interpretation was too narrow and held that the word "law" includes constitutional law as well as statutory law. Allstate, 780 P.2d at...