By Michael Howell
The Montana Department of Labor and Industry’s Office of Administrative Hearings recently issued a decision that would allow the disclosure of documents requested by the Bitterroot Star related to a Human Rights Complaint filed by Ravalli County Road Department employee Danielle Senn against the Ravalli County Commission. Senn filed the complaint on September 18, 2013, alleging that Ravalli County discriminated against her in employment and retaliated against her for complaining about the discrimination. Her complaint named two county employees alleged to be involved in the illegal acts, Road Department Supervisor Dusty McKern and Human Rights Director Robert Jenni.
In November of 2013, the Bitterroot Star requested copies of the complaint, any attachments to the complaint and “other documentation associated with the complaint that you can release.”
Hearings Officer David Scrimm noted that the Star had repeatedly stated that it was willing to examine documents with the names of other employees and third parties redacted.
“Redacting the names of the two employees identified in the complaint might be an idle act, given the information the Star already has, and the information about the employees’ job contained in the allegations involved,” wrote Scrimm. “In addition the Star has repeatedly named one of the two employees in its filings, which are not sealed.”
The Hearings Officer nonetheless applied the appropriate legal analysis to determine whether the names should be redacted or not.
“If their subjective privacy expectations are recognized by society as reasonable and clearly outweigh the public’s right to know, there is no reason to disclose those names, even if the Star already knows who they are,” wrote Scrimm.
Following an in camera review of the documents, Scrimm considered the characteristics of information contained therein, the context of the underlying dispute and the relationship between the information in the requested documents and the duties of the public officials involved. He applied the Court’s two-pronged test to determine whether individuals have privacy interests protected by the Montana Constitution: first, the individual must have a subjective or actual expectation of privacy, and second, society must be willing to recognize that expectation as reasonable.
The County objected solely on behalf of individuals whose privacy rights it asserted were at stake, not on its own behalf. It asserted that the HRB file documents contained allegations brought to the County as “personnel issues” and “addressed as such” by the County. The County also tried to argue against disclosure on behalf of Senn, but it had no standing, according to the Hearings Officer.
In examining the privacy rights of the other two employees, Scrimm cited several court cases, beginning with the Great Falls Tribune v. Cascade County Sheriff (1989) in which the Montana Supreme Court held that certain public officials’ expectations of privacy may not be reasonable because they hold “positions of great public trust.” He notes that in no case has the Court found that the expectation of privacy held by a public employee, regardless of station, is unreasonable solely because they are state or local government employees.
“It has only found that the expectation of privacy is unreasonable when two elements are present: a position of public trust; and allegations of or actual misconduct that calls into question a person’s ability to perform his or her public duties,” states Scrimm.
Scrimm notes that personnel records are the kind of documents about which an employee has an expectation of privacy, but that there are no personnel records within the documents at issue in this case.
“Senn’s complaint is not a document submitted to the County at any time as a ‘personnel issue.’ The information in that complaint consists of her allegations about illegal acts by the County – activities by Dusty McKern, the Ravalli County Road Department’s Administrator/Operations Manager, in alleged violation of County policy, and failure or refusal of the County to act to stop those activities when Senn reported it; failure of Robert Jenni, Ravalli County Human Resources Director, to protect Senn’s identity from the supervisory employee as the source of internal complaints about the supervisory employee; and discharge in retaliation for her opposition to illegal activities,” wrote Scrimm.
Scrimm refers to a few other court cases where the Court recognized that “society is not willing to recognize as reasonable the privacy interest of individuals who hold positions of public trust when the information sought bears upon that individual’s ability to perform public duties.” The Court has also held that when the nature of a person’s job makes him “subject to public scrutiny in the performance of his duties, the public has the right to be informed of the actions and conduct.”
Scrimm notes that “while the Court has not established a bright-line rule, McKern’s position as a senior manager for Ravalli County with significant authority and public responsibilities makes him far more similar to elected officials who courts have clearly identified as holding positions of public trust, than to a non-supervisory employee who is not. As such he is in a position of public trust.” He states that McKern does not have an expectation of privacy that society would recognize as reasonable.
Scrimm finds that Jenni has no expectation of privacy that society would find reasonable since he too holds a position of public trust.
“Senn alleges that he wrongfully disclosed her name to McKern, which brought about McKern’s retaliatory conduct and that Jenni took part in the retaliation against her for filing her grievances about McKern’s conduct. Jenni holds a position of public trust and Senn has alleged that he discriminated against her. Accordingly, Jenni does not have an expectation of privacy that society would find as reasonable,” wrote Scrimm.
“Because neither McKern nor Jenni have a privacy interest that clearly exceeds the public’s right to know, their names, the allegations made against them and any responsive comments made by the county will be disclosed to the Star,” concludes Scrimm.
State law empowers an aggrieved party to file a petition for judicial review of the final agency decision.
“Once the information is in the public record, it is essentially impossible to take it back out, especially if the information is provided to the news media,” wrote Scrimm. “Therefore, the only parties who will have immediate access to the disclosed documents, under this final decision, will be the County. They will have 20 days to review the documents and file a petition for judicial review. The 20-day period will allow the parties asserting privacy rights an opportunity to seek a stay before the documents are placed in the public record,” states Scrimm.