KTVQ and the Billings Gazette jointly filed a motion Wednesday to intervene in legal proceedings involving three Billings police officers fighting not to be identified as the patrolmen disciplined for having sex on city property, two of them while on duty.
Meanwhile, Mike Meloy, of Helena, the attorney for the Montana Freedom of Information Hotline, said he sees no grounds for arguing that the police officers have any right to privacy in this case that would outweigh the public’s right to know.
In response to an email query from Last Best News, Meloy said the Montana Supreme Court has “made it clear that police officers are public employees ‘vested with the public trust,’ and as such, have a diminished right of privacy over personnel matters involving a violation of that trust.”
He went on to cite several cases establishing that fact, and concluded by saying that “under Montana open records law, the records are clearly accessible.”
It was revealed last week that three male police officers had been disciplined for having sex with a civilian employee of the Police Department, in the basement of City Hall in two cases and in or near a police patrol car on private property, in the case of the third officer.
The female clerk, who was initially identified by Chief St. John, even as he declined to name the three officers, was later fired from the police evidence locker after admitting to the theft of narcotics from the facility.
Responding to requests from news organizations, the city attorney’s office decided last week that it would release the officers’ names on Monday. Before that happened, though, lawyers hired by the three officers asked the District Court to prohibit the release of their names.
District Judge Michael Moses granted a temporary injunction Monday and set a private hearing on the case for May 3. The TV station and newspaper are asking to be part of that hearing.
Last Best News attempted to obtain a copy of the motion filed by the Gazette and KTVQ and was told by the clerk of court’s office that that motion is sealed because it was filed as part of a case that has been sealed. Even so, the stories carried by the two news organizations quoted freely from the “sealed” document.
The news articles reported that the motion argues that Moses, by sealing the case filings, “violated the state and federal constitutions.” The motion further said, according to the Gazette and KTVQ, that “Only two types of documents — grand jury transcripts and warrant materials in the midst of a pre-indictment investigation — do not fall within this strong presumption that court records are open to the public.”
In addition to seeking the name of the officers involved in the case, Last Best News asked the city attorney’s office to release disciplinary records for all three officers, going back to the start of their employment with the city.
Deputy City Attorney Thomas Pardy confirmed on Tuesday that those records were among the documents the city had intended to release on Monday. He said he didn’t know whether any of the officers had been subjected to any previous discipline, but that if their names ultimately are made public, so will that information.
Meloy, the attorney with the Freedom of Information Hotline, said the first Montana Supreme Court ruling dealing with the privacy rights of law enforcement officers came out in the case of Great Falls Tribune v. Cascade County Sheriff, in 1979.
In that case, he said, the court “ordered disclosure of names of officers who had beaten an arrestee. This case spawned a number of similar decisions over the years permitting access to otherwise ‘private’ personnel disciplinary files of people vested with public trust.”
In Lacy v. City of Billings, in 1989, Meloy said, “the Court applied this new principle to an accident report involving a Billings police officer.” Closer to the “factual setting” of the current case in Billings, he said, was Bozeman Daily Chronicle v. City of Bozeman, in 1993, in which the court “ordered disclosure of a police investigatory report involving a Bozeman cop accused of sexual assault of another officer while attending the police academy. This case is instructive because disclosure was ordered before any criminal action was taken on the assault.”
That principle was extended even further, in 2001, in Billings Gazette v. City of Billings. That ruling, Meloy said, extended the principle to “disclosure of disciplinary records of a police department employee (not a police officer) who was alleged to have misused a city credit card.”