HELENA – The Montana Department of Justice won't release the results of an independent review of a former medical examiner's autopsies on infants and young children without a court order, a spokesman for the agency said.
Attorney General Tim Fox's office has denied separate requests by the Missoulian and the Associated Press to release the results of the review it ordered this spring of Dr. Thomas Bennett's work. The department received the results June 19, around the time it notified Bennett that his appointment as associate state medical examiner would end July 1.
The state Justice Department plans to ask a judge to examine the results to determine whether the public interest outweighs Bennett's privacy rights, spokesman John Barnes said. The agency is adding the review to a legal petition it filed July 31 seeking a judge's declaration on whether to release three state emails concerning Bennett to the Missoulian.
Bennett has objected to the release of all the documents, saying to do so would be an invasion of his privacy.
"Our purpose here is to prevent exposing the state to liability for either failing to release documents which should be released, or for violating individual privacy rights by releasing documents which should not be released," Barnes said in an email to the AP.
The documents in question could shed light on what led to Bennett's termination and confirm whether the examinations he performed were properly conducted.
The decision to file a court action instead of merely releasing the documents reflects a pattern by the attorney general's office of putting up roadblocks to public records requests, Missoulian editor Matt Bunk said. The department's response could set a precedent for other public agencies when they receive public records requests, he noted.
The effect could be lengthy delays and high legal costs to obtain the release of public documents, Bunk said.
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"It could have a chilling effect on public records statewide," he said. "We're talking about records where there is a clear public interest."
Barnes said the decision to seek a legal review is made on a case-by-case basis. He cited a Montana Supreme Court decision from March in a separate case in which the justices said was appropriate for Missoula schools to request a judicial ruling on whether to release personnel records requested by the media.
"In this situation, the press asserted its constitutional right to know and an individual asserted a constitutional right to privacy," he said. "When two competing constitutional claims are being made, it's the role of the court to sort it out and make a determination as to what's public and what's not."
Bennett's Montana contract was not renewed amid concerns surrounding what former Montana chief medical examiner Gary Dale called "problematic opinions" in at least four findings Bennett made in infant and young children's autopsies while in Iowa in the 1990s.
Bennett was appointed as a contract medical examiner in Montana in 1998. Dale said Bennett performed autopsies in Montana despite instructions to stop because his examinations could put the state at legal risk.
Dale brought at least some of those cases to the attention of the attorney general's office with concerns, prompting the department to order the review. Barnes declined to say how many cases were reviewed.
Bennett previously told the Missoulian he worked as a consultant to counties that requested autopsies and was not subordinate to the medical examiner. He said his work was exemplary.