By Whitney Bermes, Bozeman Daily Chronicle

A Gallatin County judge recently sided with the Chronicle in the newspaper’s request for public records from the city of Bozeman, ruling that the city prematurely sued the newspaper instead of making a decision on whether to release the records.

The ruling issued by District Court Judge John Brown came as part of a lawsuit the city filed against the Chronicle last year after the newspaper sought records related to an investigation into Jessica Johnson, the city’s former neighborhood coordinator who was recently charged with embezzling from the city.

Brown ruled last week that Johnson did not have a reasonable expectation of privacy in the documents requested by the Chronicle that pertained to any investigation into alleged misconduct, and that the city must turn over the documents to the judge.

The Gallatin County Attorney’s Office would then have an opportunity to file any objections to the release of the information due to pending criminal cases it has filed against Johnson. If there is no objection, Brown would release the information requested by the Chronicle.

As part of his ruling, Brown said that the city’s decision to seek a judge’s review of the documents requested is not consistent with Montana public records statutes or public policy.

However, Brown did not award the Chronicle its attorney fees. While the city did not adhere to Montana’s public records statute, Brown said he declined to award attorney fees and costs to the newspaper because, despite the newspaper and Brown’s “frustration” over how the city handled the request, it didn’t warrant making the city pay the Chronicle’s attorney fees.

In response to Brown’s ruling, Bozeman City Attorney Greg Sullivan said, “the city welcomes the clarity provided by the court and appreciates the recognition the city’s process was reasonable.”

Nick Ehli, the Chronicle’s managing editor, said while the newspaper was pleased Brown ruled in its favor, it was disappointed he didn’t also order the city to pay its attorney fees. Any person, newspaper reporter or otherwise, should not have to pay to access what are clearly public records, he said.

“We asked the city why it was investigating a former employee and got sued,” Ehli said. “The court agreed with our position, but without an award of attorney fees, the ruling sets a potentially dangerous and chilling precedent when it comes to the public’s right to know about the public’s business.

“The court is basically saying that, yes, the public does have a right to know, as long as you have plenty deep pockets to withstand a lawsuit brought by a government entity.”

The Chronicle’s request came last year after Johnson submitted her letter of resignation in June. In her resignation letter, she told city staff that she would “fully commit to make myself available to assist with anything needed and to finalize the investigation.”

On July 24, the Chronicle submitted a written request to the city, seeking any documents related to Johnson’s investigation.

Johnson asserted her privacy rights when the city informed her of the newspaper’s request. City Attorney Greg Sullivan and Assistant City Attorney Karen Stambaugh then filed a petition in Gallatin County District Court, asking a judge to review the documents the Chronicle requested and determine which, if any, should be released. The city said it filed the suit to avoid the risk of any potential lawsuits by Johnson if the information was released, or alternatively, a suit from the Chronicle if the city refused.

The Chronicle, represented by Benjamin Alke and Jeffrey Tierney of the Bozeman firm Goetz, Baldwin & Geddes, argued that the city failed to uphold its statutory and constitutional obligation to process the records request and issue a decision. Asking Johnson whether she would waive her privacy rights and then immediately filing the petition in District Court seeking a ruling were insufficient, the Chronicle argued. The city has a responsibility to analyze the request and make a decision on what could be disclosed.

And, the newspaper said, the documents requested are public information within the scope of the constitutional right to know and Montana’s public information statutes. A pre-emptive petition such as the city’s in this case, the Chronicle argued, could have a potential chilling effect on the public’s right to know.

The city, on the other hand, said it followed what’s required by law in how it handled the request.

And since Johnson was later charged by the Gallatin County Attorney’s Office with a felony count of embezzlement related to the investigation for which records were sought, those records may now include confidential criminal justice information, which is not public, the city argued.

In his ruling, Brown said the city did not act under its responsibilities under Montana’s public records statute.

While agencies may deny records requests if they believe there is reason to do so, the agency must provide a written explanation of its denial, Brown noted.

In this case, “instead, the City jumped the proverbial gun and initiated this lawsuit to insulate it from liability, handing off its statutory responsibility to (Brown) to determine whether the public records were subject to disclosure,” Brown wrote in his 29-page ruling.

The route the city took was also “not consistent with encouraging the exercise of fundamental rights,” Brown wrote.

“Rushing to file suit” as a way to minimize risk of potential future lawsuits “sends a message to individuals seeking information from public entities that they need to have enough money to participate in a lawsuit in order to even get an answer to their letter of request,” Brown wrote.

“An individual who exercises their constitutional right to seek public information, instead of being provided a reasoned response to their request, may instead receive a summons and end up party to expensive litigation without having the opportunity to decide whether that cost is worth incurring,” Brown wrote.

The city, by not making its own determination on which public records were subject to the Chronicle’s request, also made things “unnecessarily difficult and time-consuming” for Brown to meaningfully weigh the two parties’ arguments in this case, Brown said.

Despite the city’s actions, Brown did not make the city pay the Chronicle’s costs in defending the suit, saying while he shared the newspaper’s frustrations, he didn’t believe that the city took “a wholly unreasonable approach” when it prematurely filed suit against the Chronicle.

Brown ended the order by saying he was hopeful that his ruling gave the city a “clear direction” that will prevent shortcomings in how the city handles future public records requests.