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Judge Michael G. Moses

Judge Michael G. Moses, shown in November, heard arguments Monday in a lawsuit brought against Billings Gazette Communications by the city of Billings over the release of documents pertaining to the alleged discipline of landfill employees.

BILLINGS - On Monday, District Court Judge Michael Moses heard arguments about a lawsuit brought by the city of Billings against Billings Gazette Communications.

The newspaper seeks documents on alleged mishandling, misappropriation or misuse of public funds or property by employees at the city-owned landfill.

Following the newspaper’s request, the city sued Gazette Communications, claiming that the release of any information about who may have done what with public funds or property would violate the employees’ right to privacy. In the lawsuit, they’re referred to as John or Jane Doe 1 through 10.

The city has produced no documents — redacted or not — that would help the newspaper decide whether to report the story. Instead, it has asked Moses to decide which documents the newspaper can have, and what information must be redacted to ensure the employees’ privacy.

The employees have been disciplined for their actions, Assistant City Attorney John “Kelly” Addy told Moses on Monday, and the city “made whole” for whatever has been allegedly taken.

During Monday’s hearing, Addy said the decision to ask Moses to decide on the release of the documents comes down to which group he wants the city to be sued by — The Gazette, claiming the public’s right to know, which is seeking compensation from the city for its attorney fees, or the affected employees with their right to privacy.

“I have a duty to the city not to get it sued for millions,” Addy told Moses. “I think this case is right where it has needed to be since July — in the court’s hands.”

Moses replied that he “still struggles with a government entity suing a private entity, saying you can’t have the documents you request. You dragged them in and then told them nothing over the next five months.”

“You yourself,” Addy replied, “said that (the release of) any line on any document will spill the beans … When the Billings Gazette asks for information, they are going to publish it to the whole world. It is universal and devastating.”

Representing the Gazette, attorney Martha Sheehy said the city’s lawsuit could have a chilling effect on news-gathering if the city is not required to produce at least redacted documents.

“The city has that obligation,” she told Moses. “Every person with public documents makes those decisions about privacy every day.”

Assuming the employees do have a right to privacy, Moses will have to weigh whether the public’s right to know how public money is being spent exceeds the employees’ privacy interest, Sheehy said.

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“It is about the money,” she said. “If you are investigated for stealing public money, your expectation of privacy does not exceed my right to know you stole public money. That line looks really bright and clear to me.”

Sheehy said the Gazette requests information from government document-keepers two or three times each week “and we have sued two times in five years. … This is all stall to me, and it is costing my client a lot of money.”

After the attorneys had their say during the 75-minute hearing, it was Moses’ turn.

“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,” Moses said. “It is chilling, and (the city’s) response is, ‘Too bad, so sad, we sue you and by the way, we won’t respond to any discovery (requests).”

Moses said he has reviewed the 1,500 pages of documents given him by the city “and there’s not much that should be redacted if you are legitimately protecting privacy rights. Case law provides a pretty good outline of what should and should not be protected.”

He said he would release his decision “soon.”

Addy said the city plans to ask for a stay or appeal Moses’ decision if the judge orders the release of the documents.

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