The Montana Supreme Court recently ruled that public employees have a reasonable expectation of privacy in their identity with respect to internal disciplinary matters, provided that the employee is not in a position of public trust and the misconduct resulting in discipline is not a violation of a duty requiring a high level of public trust. In Billings Gazette v. City of Billings, 313 P.3d 129 (Mont. 2013), the city rejected the local newspaper’s request for the identification of certain city employees who had been disciplined for accessing pornographic materials on city computers during work hours. The city provided the Gazette with materials that were responsive to its request, such as internal investigation documents and information regarding the specific discipline imposed, but it redacted the employees’ identifying information.

The Gazette sued to compel disclosure and argued that “unauthorized computer usage by disciplined [c]ity employees was subject to release under the ‘right to know’ provision of [the Montana Constitution] . . . and that any privacy interest the disciplined employees may have in the information being requested did not clearly exceed the public’s right to know.” After in camera inspection, the district court agreed and ordered the city to disclose the investigative materials, with redactions only for uninvolved third parties.

Upon direct review, the Montana Supreme Court resolved the competing state constitutional interests of the city employees’ right to privacy and the Gazette’s right to know by considering (1) whether the employees had a subjective or actual expectation of privacy, and (2) whether society was willing to recognize that expectation as reasonable. The court explained that not all public employees possess the same level of privacy in disciplinary matters: in circumstances where the status of a public employee requires a high level of public trust (e.g., elected officials or police officers), the expectation of privacy may be significantly lower than for an administrative employee; likewise, an administrative employee may have a lower expectation of privacy in behavior related to a duty of public trust (e.g., spending public money or teaching children). Accordingly, when a public employee has a lower expectation of privacy the burden of the party seeking disclosure is correspondingly reduced.

Here, the city employees were not elected officials, upper management, or department heads, nor was there any indication their misconduct violated any duty or public trust. While the employees had access to government computers and received their wages from tax dollars, the court stated that granting access to a computer does not demonstrate a public trust. Moreover, a public employee’s violation of office policy does not in turn violate a public trust simply because tax dollars pay the employee’s salary. On the facts presented, the court held that the city employees had an actual or subjective expectation of privacy in their identities that society would recognize as reasonable. Also, because the Gazette had already received relevant information related to the misconduct, investigation, and punishment of the city employees, any benefit of disclosing their identities was negligible at best. If the public was not satisfied with the punishment, it had all the information it needed to voice an opinion.

The dissent argued that even if the city employees had some expectation of privacy, society would not recognize that expectation as reasonable because the employees sought out and enjoyed pornographic material on city computers during work hours with full knowledge of the city’s Internet use policy. Part of this policy specified that employee computer usage was not anonymous and that the city could monitor individual accounts. The dissent further maintained that it was absurd to deem the city employees’ expectation of privacy as reasonable because in many cases the employees breached a security device in order to access the pornographic material, thus exposing the city’s computer network to damage from malware and viruses.