Friday, September 22, 2023
Courthouse News Service
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City Sues Newspaper in Reverse FOIA

BILLINGS, Mont. (CN) - A Montana judge Monday heard arguments in a reverse freedom of information case, in which Billings sued the Billings Gazette, claiming that release of documents about alleged corruption would violate employees' privacy.

Yellowstone County Judge Michael Moses said at the hearing that he struggles "with a government entity suing a private entity, saying you can't have the documents you request."

The Gazette sought information on alleged mishandling, misappropriation or misuse of public funds by employees at the city-owned landfill. The city refused, citing its employees' right to privacy.

Gazette attorney Martha Sheehy said the city's lawsuit would have a chilling effect on journalism, that "the city has that obligation" - to release, at a minimum, redacted documents, so the public can know how public money was spent.

"It is about the money," Sheehy said. "If you are investigated for stealing public money, your expectation of privacy does not exceed my right to know you stole public money. That line looks really bright and clear to me."

Assistant City Attorney John "Kelly" Addy told Moses during the hearing that the city was "made whole," apparently meaning the money has been replaced or given back, or that whatever wrong was made right, but Courthouse News has been unable to obtain precise details.

Addy claimed the city had to decide whether to be sued by the Gazette, for not releasing the documents, or by its own employees, for the alleged privacy violations. As a result, he said, Billings took preemptive action, in Montana's 13th Judicial District.

"I have a duty to the city not to get it sued for millions," Addy said. "I think this case is right where it has needed to be since July - in the hands of the courts."

Sheehy said the Gazette requests information from local government about three times a week and that the newspaper has sued over access twice in the last five years. She said the price of access is escalating.

"This is all a stall to me, and it is costing my client a lot of money," Sheehy said.

Judge Moses said at the end of the 75-minute hearing that he was worried about the potential outcome for the Gazette.

"I am terribly concerned that the Gazette gets sued and nothing is disclosed to them at all, not even an outline of what may or may not have happened," he said. "It is chilling and (the city's) response is, 'too bad, so sad, we sue you and by the way, we won't respond to any discovery requests.'"

Moses said that after poring over 1,500 pages of documents provided to him by the city, "There's not much that should be redacted if you are legitimately protecting privacy rights. Case law provides a pretty good outline of what should and should not be protected."

Moses is expected to rule soon.

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