MT: State “reasonable expectation of privacy” broader than Fourth Amendment (non-search case)

Montana has a constitutional right to privacy and right to know. The Montana Supreme Court concludes that lower level employees disciplined for viewing pornography on city time on city computers had a reasonable expectation of privacy not to be publicly disclosed, and disclosure of their identities was not in the public interest. The Fourth Amendment reasonable expectation of privacy analogy was not apt because of the state privacy protection. Billings Gazette v. City of Billings, 2013 MT 334, 372 Mont. 409, 313 P.3d 129 (2013)*:

[*P50] Here, the Employees are not elected officials, high-level management, or department heads, nor is there evidence that any specific duty alleged to have been violated related to the performance of a public trust function. The information being sought is merely their identities in relation to internal disciplinary action for a violation of office policy. We hold 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.

[*P51] The Dissent employs a Fourth Amendment analysis and concludes that the Employees had no reasonable expectation of privacy in their computer misuse. Dissent, ¶¶ 74, 75. The Fourth Amendment protects persons from unreasonable searches and seizures in the criminal context. The misconduct in this case involved no criminal conduct. Further, the civil cases cited by the Dissent, including the extensive quote from Muick v. Glenarye Electronics, 280 F.3d 741 (7th Cir. 2002), involve employee privacy claims raised against employers who sought information. Rejection of such claims by the courts in these cases was appropriately premised upon the employees’ lack of an expectation of privacy as to their employers. Unlike these cases, there is here no privacy claim by the Employees against the City. The City obtained the information from the Employees’ computers pursuant to the computer use policy, and proceeded to discipline the Employees. The question is whether the Gazette—a third party—is entitled to the identifying information about the Employees.

[*P52] Montanans are provided a “heightened expectation of privacy” under the Montana Constitution in comparison to the U.S. Constitution, State v. 1993 Chevrolet Pickup, 2005 MT 180, ¶ 9, 328 Mont. 10, 116 P.3d 800, and Article II, Sections 9 and 10 of the Montana Constitution explicitly require that a balancing of the right to know and the right to privacy be conducted in this case. This Court’s precedent provides the appropriate analysis of the particular state constitutional provisions that govern here, without regard to Fourth Amendment jurisprudence or federal approaches to the issue.

[*P53] Having found that the Employees had an actual or subjective expectation of privacy that society is willing to find reasonable, we must balance the Employees’ right to privacy against the merits of public disclosure.