BILLINGS - The city of Billings doesn’t have to reveal the identities of five employees disciplined last year for looking at porn and other adult material on their work computers, the Montana Supreme Court ruled in a split decision Friday.

The five employees have a “reasonable expectation of privacy in their identities with regards to internal disciplinary proceedings” that “clearly outweighs the limited merits of public disclosure,” Justice Jim Rice said in his delivery of the court’s opinion.

The decision overturns a ruling last year in Yellowstone County District Court that would have given the Billings Gazette the employees' names and disciplinary records, the subject of a lawsuit with the city.

The high court says there isn’t enough of a public interest to justify releasing the information because doing so wouldn't give the public “any greater opportunity to participate in the internal employment decisions in the City."

If people are dissatisfied with the city's actions in the case, they have all the information they need to complain publicly to the city council, the mayor or through "the newspaper," the court said.

The Gazette had argued that releasing the information would promote fairness and help prevent cronyism in public offices.

“To hold that the general interests of ‘fairness and prevention of cronyism,’ absent any allegations that such has occurred, is sufficient to outweigh an employee’s privacy interest would open all public employment decisions to public scrutiny,” the Supreme Court said.

Justices Mike McGrath, Michael E. Wheat, Beth Baker and Brian Morris agreed with the ruling.

The court’s ruling on the matter was not unanimous. Justice Laurie McKinnon wrote a 15-page dissent explaining why she agrees with Yellowstone County District Court Judge Russell Fagg's ruling in the case. Justice Patricia O. Cotter agreed with and signed McKinnon’s opinion.

In part, she objected to the court’s decision not to factor in some of the disciplined employees’ positions of power in making a ruling.

“Despite this Court’s knowledge—acquired through our in-camera review of the unredacted Corrective Action Forms—that some of the disciplined employees held upper-level positions and/or were involved in law enforcement, we (the Supreme Court) refuse to apply that knowledge and analysis in resolving this case,” McKinnon said.

The refusal to “recognize the significance of the redacted information to the Gazette’s investigation,” limits the paper's efforts and decides what “direction the Gazette’s investigation and reporting should take,” she continued.

“Montana’s constitutional provision embracing the citizenry’s right to know is premised on the right to have information disseminated and available so that the public—not this Court—may draw its own inferences and conclusions from the information and thereby make informed decisions regarding their governmental bodies.”

'Not in the public interest'

The high court’s ruling comes a year and half after an internal investigation by the city led to the five employees being suspended.

At The Gazette’s request, the city provided some details of the investigation last summer, but withheld any information that could have been used to identify the five employees.

The Gazette sued the city for the information. In response, the city argued that while “disclosure of the identity of these individuals may help to sell newspapers, it is not in the public interest. Such disclosure would only serve to subject the individuals to public humiliation, damage their reputations, and possibly have a permanent, devastating effect on their lives and their families.”

Last December, Fagg ruled in favor of the Gazette and ordered the city to release the employees’ names and disciplinary records, known as corrective action forms.

The city quickly appealed the ruling to the Supreme Court and the records were withheld pending the high court’s decision.

McKinnon agreed with the District Court ruling and stated, “ … a public employee who is paid by taxpayers does not have a reasonable expectation of privacy in viewing pornography during work hours on a City computer, particularly when he/she has been advised by the City that computer use is not anonymous.

“Although public humiliation may be an unfortunate consequence of disclosure, it is not a defense to disclosure,” she said. “To the extent the (Supreme) Court holds otherwise, I strongly disagree.”

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