Right to Know and Right of Privacy Laws

Montana’s Constitution clearly provides for the public’s right to know and the individual’s right to privacy. The attempt to strike a balance between these competing provisions has given rise to continuing legal interpretation and litigation.

Right to Know – Article II, section 9 of the Montana Constitution provides that:

“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.”

Right of Privacy -Article II, section 10 provides that:

“The 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.”

It is seldom possible to provide a hard-and-fast rule that balances these competing rights in every situation. The custodians of criminal justice information must decide on a case-by-case basis whether criminal justice information requested can be publicly disseminated.

Criminal Justice Information Act

The Montana legislature enacted the Criminal Justice Information Act in 1979. The Act divides all criminal justice information into two categories: public and confidential criminal justice information.

Public Criminal Justice Information

Public criminal justice information, defined in 44-5-103(13) of the Montana Code Annotated, includes:

  • information made public by law
  • court records and proceedings
  • convictions, deferred sentences and deferred prosecutions
  • postconviction proceedings and status
  • information originated by a criminal justice agency, including
  • information considered necessary by a criminal justice agency to secure public assistance in the apprehension of a suspect
  • statistical information (data derived from records in which individuals are not identified or identification is deleted)

There are no restrictions on the dissemination of information that is specified as public.

  • It should be available from the department or agency that is the source of the original documents and authorized to maintain the documents.
  • The documents must be available for inspection, subject to the restrictions set forth in Montana law, during the agency’s normal business hours.
  • The agency may charge a reasonable fee for providing copies.
Confidential Criminal Justice Information

Confidential criminal justice, defined in 44-5-103(3) of the Montana Code Annotated, includes:

  • criminal investigative information
  • criminal intelligence information
  • fingerprints and photographs
  • criminal justice information or records made confidential by law
  • any other criminal justice information not clearly defined as public criminal justice information

Much of the information law enforcement generates in the course of a criminal investigation falls under “criminal investigative information” and is therefore confidential.

Confidentiality of Victim Information

The confidentiality of victim information is governed by 44-5-311 of the Montana Code Annotated.

Victim Information: If a victim requests confidentiality, an agency may withhold information including the address, telephone number or place of employment of the victim or a member of his or her family.

Sex Assault Victims: An agency may not disseminate to the public any information directly or indirectly identifying a victim of sexual assault, sexual intercourse without consent, indecent exposure or incest.

These provisions do not allow withholding of information that is:

  • the location of the crime scene
  • necessary for law enforcement purposes
  • authorized for disclosure by a district court upon a showing of good cause

Montana Supreme Court Rulings

Supreme Court Rules