Montana employees have a reasonable expectation of privacy in their personnel files, including identifying information such as job title and department. The Montana Supreme Court emphasized these privacy interests while examining whether the City of Billings was required to release copies of internal personnel investigative documents to the local newspaper following the investigation and discipline of five city employees. Billings Gazette v. City of Billings, 2013 MT 334. The case serves as a good reminder to employers to properly safeguard employment records.
City Employees Disciplined for Inappropriate Computer Use
In early 2012, the City of Billings (City) discovered that five city employees may have been using their work computers to access pornographic websites during work hours. Separate investigations were conducted, resulting in a five-day suspension for each of the five employees. The City issued each of these employees a written corrective action determination which summarized information learned through the investigation and setting forth the resulting disciplinary action.
Some months later, the Billings Gazette requested a list of all City employees who had been disciplined in the prior six months as well as copies of all records of disciplinary actions and other information related to the employees’ access to inappropriate websites. The City provided some investigative documents but removed the names and other identifying information related to the five suspended employees and uninvolved third persons, citing privacy concerns. The newspaper went to court to obtain the documents with the identifying information included, arguing any privacy interest that the disciplined employees may have in the information did not clearly exceed the public’s right to know. The district court reviewed the requested documents and ordered the City to turn over the corrective action forms and other documents with removal of only the identifying information related to third parties. The City appealed the district court’s order to the Montana Supreme Court.
Balancing Constitutional Right to Privacy with Public’s Right to Know
The Montana Constitution provides the right of individual privacy but also establishes the public’s right to examine documents and deliberations of all public bodies and agencies. These competing interests must be balanced to determine whether the individual privacy clearly exceeds the merits of public disclosure under the facts of each case.
In this case, the Court held “that society would be willing to accept as reasonable a public employee’s expectation of privacy in his or her identity with respect to internal disciplinary matters when that employee is not in a position of public trust, and the misconduct resulting in the discipline was not a violation of a duty requiring a high level of public trust.” Finding that the five disciplined employees were not elected officials or high level management and their inappropriate computer usage did not relate to the performance of a public trust function, the Court found that their expectation of privacy clearly outweighed the limited merits of public disclosure of their identifying information. The Court ruled that the City did not have to turn over documents containing the employees’ identifying information.
All Employers, Public and Private, Should Maintain Privacy of Personnel Records
Although the Billings Gazette case dealt with a public employer (the City), the Court’s emphasis on employees’ privacy interests in their personnel records and their identifying information is relevant to private sector employers as well. The Court noted that employment records regularly contain references to family, health or substance abuse problems, employer criticisms, test scores, background checks, military records and other types of information that employees reasonably expect to be confidential. Employers should take care to safeguard personnel files and employment records at all times. Access to personnel files should be limited and only those with a “need to know” should be permitted to view individual employment records. In addition, medical information must be kept separately from the rest of an employee’s personnel file. Take the time to review your recordkeeping policies and procedures to ensure that your organization does not violate your employees’ privacy interests.
Disclaimer: This article is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. They do not constitute legal advice and are not intended to create an attorney-client relationship between you and Holland & Hart LLP. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.