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Posted by Thomas J. Karem | Aug 26, 2017 | 0 Comments

On June 12, 2017, U.S. House representative Greg Gianforte was convicted of misdemeanor assault against reporter Ben Jacobs. Justice Rick West, Gallatin County Justice Court, ordered Gianforte to appear at the Gallatin County Detention Center for fingerprinting and photograph as a condition of his deferred sentence. Following Gianforte's failed attempt to be excused from this condition, Gallatin County attorney Marty Lambert announced that he will not release representative Gianforte's mug shot because it is "confidential criminal justice information" (CCJI). Lambert requested Montana Attorney General Tim Fox provide an opinion as to whether Gianforte's mug shot is CCJI. Fox declined to give an opinion. Thus, the question remains whether or not the public is entitled to Gianforte's confidential criminal justice records?

Lambert's claim not to release Gianforte's photogrpah rests on the "Montana Criminal Justice Information Act of 1979", section 44-5-101, MCA, et seq. (Act). Under section 44-5-103(3), M.C.A., of the Act, CCJI includes fingerprints and photographs of criminal defendants. Conversely, "public criminal justice information" (PCJI), which is available to the public, include, but not limited to, initial arrest records. MCA 44-5-103(13). Ostensibly, arrest records include fingerprints and mug shots because, in most cases, the law requires it when a person is arrested. However, the conflicting definitions between CCJI and PCJI leaves open the argument that fingerprints and photographs are CCJI, particularly because CCJI specifically identifies fingerprints and photographs and PCJI does not.

Under the Act, there are two options to obtain CCJI, one, a victim or an attorney for the victim may petition a Montana district court for release of the CCJI information or, two, serve a written request on the city or county attorney for release of the information.

In the first option, a victim petitions the district court to release CCJI information and the court must find that the demands of the defendant's privacy do not clearly exceed the merits of public disclosure. MCA 44-5-303(1). The city or county attorney must then determine whether or not the information would jeopardize a pending investigation or other criminal proceeding. The district court then issues an order based on its analysis of the facts and law either releasing, partially releasing, or denying release of the CCJI.

In Gallatin County, a victim can pick up a form petition from the Gallatin County Records Department at the Law and Justice Center, 615 S. 16th Ave., in Bozeman. Complete the form and return it to the records department. In about two weeks, you will receive an order from the district court either releasing the CCJI or denying your request.

Under the second option, anyone can serve a written request on a prosecutor for release of confidential criminal justice information relating to a criminal investigation that has been terminated or relating to a criminal prosecution that has been completed by entry of judgment, dismissal, or acquittal. MCA 44-5-303(5). The prosecutor may then file a declaratory judgment action with the district court. The prosecutor is not required to file a declaratory action. Similar to option one, the district court must find that the demands of individual privacy do not clearly exceed the merits of public disclosure.

These options under the Act are not the only way to get CCJI. A person or organization may file an action for dissemination of CCJI information that the person or organization considers appropriate and permissible. Montana's constitional Right to Know or "sunshine" law is another way to obtain CCJI.

Under the Montana Constitution, Article 2, Section 9, Right to Know, "No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure." This right belongs to all Montanans. It is limited only by a defendant's right to privacy.

Article 2, Section 10, Right of Privacy, Montana Constitution, states, "[t]he right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest." Again, the district court must find that the demands of individual privacy do not clearly exceed the merits of public disclosure.

In Gianforte's case, his right to privacy does not clearly exceed the public's right to know. He is a political figure that has been convicted of the crime of assault. Our right to disclosure of Gianforte's criminal record is clear. We expect officials that manage and govern our state and nation to be of high integrity and competence. Sadly, that is not the case in our intellectual, moral, and cultural climate of the present political era. Our Right to Know sheds the light of day on officials that would otherwise conceal their lack of integrity or incompetence in the shadows, specially when money is no obstacle for an official.

The Montana Criminal Justice Information Act does not trump our constitutional Right to Know provision because it is self-executing, i.e., legislation is not required to give it effect. Bozeman Daily Chron. v. City of Bozeman Police Dept., 260 Mont. 218, 231–32, 859 P.2d 435 (1993). Thus, the Act does not apply in light of the Right to Know. The Right to Know is a separate legal avenue to obtaining CCJI.

As well, bringing an action under the Right to Know provision entitles the prevailing party to an award of costs and reasonable attorney fees. MCA 2-3-221.

In conclusion, the Right to Know under Montana's constitution is an alternative route for disclosure of Gianforte's mug shot.

Thomas Karem

About the Author

Thomas J. Karem

Admitted to Practice Montana District Courts Montana Supreme Court Federal District Courts for Montana United States Ninth Circuit


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