files appeal
over access to records
Larry Kline
Havre Daily News
lkline@havredailynews.com
The Havre Daily News and a number of other news organizations today appealed a decision by District Court Judge David Rice to dismiss a lawsuit filed against the city of Havre and members of the Havre Police Department.
Helena attorney John Shontz filed an appeal with the Montana Supreme Court.
In the lawsuit, filed March 12, 2004, Shontz asked Rice to order the city to implement a policy that would require the Police Department to provide complete copies of all initial incident reports to the public, provide those reports at the cost of reproducing them, and include certain specified information in the reports, including the names and ages of the accused and witnesses.
The suit was filed after Havre police gave a Havre Daily News reporter a copy of a police report that contained redacted information.
On April 1, Rice ruled that the city met its legal obligation to provide public information when the city, after the suit was filed, gave the newspaper an uncensored version of the same report. He ruled there was no reason to rule on the other issues raised in the lawsuit because the police must decide on a case-by-case basis what information is public in each initial incident report.
Joining the Havre Daily News in the appeal are The Associated Press, the Montana Newspaper Association, Great Falls Tribune, Montana Broadcasters Association, Daily Inter Lake, Bozeman Daily Chronicle, Society of Professional Journalists and the Missoulian. The city of Havre, former Police Chief Kevin Olson, Police Chief Mike Barthel and Assistant Police Chief George Tate are named as defendants.
Havre Daily News publisher Harvey Brock said he spoke with other plaintiffs in the case and the group decided there was "no other choice" but to appeal Rice's decision.
"We always figured that we would have to get this issue before the Supreme Court, and it is too important an issue to stop now," Brock said. "Rice's ruling would allow local law enforcement to decide what public information is, and that is just not acceptable.
"We believe that the Montana Supreme Court, rather than law enforcement agencies or criminal prosecutors, should decide what criminal justice information must be provided to the public about law enforcement activities, which is why we filed the lawsuit to begin with," Brock added.
"This is a fundamental core issue in protecting the public from inappropriate activity," Shontz said. "We look forward to bringing these issues to the Supreme Court on behalf of everyone in Montana."
Barthel said the city was pleased with Rice's decision.
"The city of Havre doesn't believe there is any merit to the appeal," he said.
The complaint stemmed from a Jan. 12, 2004, incident in which a reporter went to the police station and requested a report concerning underage drinking at a Havre home the previous month.
The Police Department allowed the reporter to examine a complete copy of the report. He later returned and asked for a copy and paid $3 for a report, which included portions that had been blacked out.
According to the complaint, the original report contained the names, ages and addresses of six juveniles who were cited and two juveniles who were present at the home and not cited. One of those present but not cited was a minor child of Olson. The report also described a discussion involving Olson, the minor and a police officer at Olson's home.
All references to the names of Olson, his child and the other juvenile who was not cited were blacked out in the edited version of the report, the complaint said, along with the ages, birthdates and addresses of the juveniles who were cited.
In the complaint, Shontz argued that the incident report contained "no personal information which clearly exceeded the public's right to know" and the reporter was entitled to a full and complete copy.
The city provided Shontz with an unedited version of the report on March 29, 2004.
Mary VanBuskirk, who represented the city in the dispute, asked Rice to dismiss the lawsuit, arguing that the department's action on Jan. 12 satisfied the reporter's constitutional right to receive information. Secondly, she argued that because the city eventually provided the full report, the matter was no longer a matter that should be before the court. In his decision, Rice agreed with the second argument.
In his decision, Rice also wrote that, though the plaintiffs argued that the department could reasonably be expected to again refuse to provide full and complete copies of initial incident reports, "a subsequent refusal would have to be resolved on its own merits" because of a prescribed method for balancing the constitutional right to know and the right of privacy.
Rice wrote that he recognizes that initial incident reports are public records under state law. "However," he added, "this is not to say that a privacy right cannot exist in information included within an initial incident report."
Brock said the Havre Daily News hasn't had problems obtaining initial incident reports since Barthel became police chief on March 12, 2004, "but it wasn't too long ago that we were told by Havre PD that initial incident reports didn't even exist. We had to threaten a lawsuit to receive the reports. We believe the Montana Constitution guarantees the public's access to the reports."
Tate declined to comment on the news organizations' appeal. VanBuskirk and Olson could not be reached for comment.
