Gazette Printing Co. v. Carden ( 1973 )


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  •                                          No. 12438
    
              I N THE SUPREME C U T O THE STATE O M N A A
                               OR    F           F OTN
    
                                                 1973
    
    
    
    GAZETTE PRINTING COMPANY,
    a c o r p o r a t i o n and STRAND HILLEBOE,
    
                                     P l a i n t i f f s and A p p e l l a n t s ,
              -VS   -
    J. J. CARDEN, A s Chairman and a member
    of t h e I n d u s t r i a l Accident Board of t h e
    S t a t e of Montana, and SIDNEY T, SMITH and
    J. C. CARVER, A s members o f t h e I n d u s t r i a l
    Accident Board of t h e S t a t e of Montana, and
    t h e INDUSTRIAL ACCIDENT BOARD O T E STATE
                                              F H
    O MONTANA,
      F
                                  Defendants and Respondents,
              and
    
    SHELDON OLSON,                   Applicant f o r
                                     I n t e r v e n e i o n and Respondent          .
    Appeal from:          D i s t r i c t Court of t h e F i r s t J u d i c i a l D i s t r i c t ,
                          Honorable S i d G. Ftewart, Judge p r e s i d i n g .
    
    Counsel of Record:
    
         For Appellants :
    
                 Moulton, Bellingham, Longo & Mather, B i l l i n g s , Montana
                 Bernard W. Longo argued, B i l l i n g s , Montana
                 Lawrence W. P e t e r s e n argued, B i l l i n g s , Montana
                 Small, Cummins and Hatch, Helena, Montana
    
         For Respondents :
    
                 K e l l e r , Reynolds and Drake, Helena, Montana
                 Paul T. K e l l e r argued, Helena, Montana
    
         For I n t e r v e n o r :
    
                 Keefer and Roybal, B i l l i n g s , Montana
                 N e i l S. Keefer argued, B i l l i n g s , Montana
    
                 Amicus Curiae          -
                 Hon. Robert L. Woodahl, Attorney General, Helena, Montana
                 John P. Connor, A s s i s t a n t Attorney General, argued,
                  Helena, Montana
    
    
                                                           Submitted : November 28, 1973
    
    
    Filed :    DEC 2 6 B
                       9n
    Honorable Bernard W. Thomas, District Judge, sitting in place of
    Mr. Justice Frank I. Haswell, delivered the Opinion of the Court.
              Plaintiffs brought this action in the district court
    for a writ of mandamus to compel the Industrial Accident Board
    and its members (now the Workmen's Compensation Division of the
    Department of Labor and Industry) to permit the inspection of
    those of its records which are open for inspection under the
    statutes of this state.   Plaintiffs appeal from the district
    court's order granting defendants' motion for summary judgment
    and dismissing plaintiff's petition.
              In their petition plaintiffs allege that defendants
    maintain certain records; that a full description of these
    records cannot be given by plaintiffs because defendants have
    refused plaintiffs access to them; that plaintiffs desire to
    have access to all records of defendants with the exception of
    those specifically covered by section 92-809, R.C.M.   1947; that
    plaintiffs had demanded access to the records and had been re-
    fused.   In the prayer of the petition, plaintiffs asked that
    the Court define and designate which specific records of the
    defendant Industrial Accident Board are excepted by section 92-
    809, R.C.M. 1947, and that a writ of mandamus be issued requir-
    ing defendants to give plaintiffs access to public records.     Sec-
    tion 92-809, R.C.M. provides that information supplied by em-
    ployers and insurers shall be confidential.
              After depositions had been taken and answers to inter-
    rogatories had been filed, defendants moved for summary judg-
    ment, attaching thereto a list describing twenty-eight kinds of
    their records which they considered to be confidential and not
    open to public inspection.   By its order granting summary judg-
    ment and dismissing the petition, the district court denied
    plaintiffsall relief, making no reference to the list attached
    to defendants' motion or to any records which might be open to
    plaintiffs' inspection.
              In a memorandum opinion, the district judge stated:
              " * * * Plaintiffs seek either (1) that the
              Court go through ali the records of the
              Division and decide which are public and
              which are private, or (2) that the Court
              order all the records to be thrown open to
              them so that they can decide which are public
              or private. As to the former, it is not the
              function of the Court to make such a blanket
              determination. Under our system, the Courts
              only decide specific controversies, i.e.,
              whether a given document is, or is not, a
              public record. As to the latter request * * *
              the Court has no power to compel the perform-
              ance of an act which the law does not require
              as a duty.
    
    
              " * * * The sole question before the Court
              is the legal question of whether the Plaintiffs
              are entitled to inspect all of the records of
              the Workmen's Compensation Division."
              Having reduced the issues to that single legal question
    and having determined that some of the records are clearly con-
    fidential under the law, the district court then held that the
    case was ripe for summary judgment against plaintiffs.
              Mandamus lies to compel the performance of an act which
    the law specifically enjoins as a duty resulting from an office.
    Section 93-9102, R.C.M. 1947.   However, there must be a clear
    legal duty.    State ex rel. Beach v. District Court, 
    29 Mont. 265
    , 
    74 P. 498
    .   The statutes of Montana provide a general right
    of inspection of public records.   Sections 59-512, and 93-1001-4,
    R.C.M. 1947.   There appears to be no disagreement with the prin-
    ciple that mandamus is an appropriate means of enforcing the
    right to inspect public records.    State ex rel. Holloran v. McGrath,
    
    104 Mont. 490
    , 
    67 P.2d 838
    ; State v. State Bank of Moore, 
    90 Mont. 539
    , 
    4 P.2d 717
    .
              Plaintiffs argue that the district court erred in not
    giving them partial relief, in refusing to ascertain the nature
    or records sought to be inspected, and in failing to grant the
    writ as to those records which are not confidential.
              Since it appears from the face of the record that de-
    fendants claim only part of their records to be confidential
    and admit that others are open to public inspection, at the
    least, plaintiffs were entitled to a judgment assuring them
    access to the records which are admittedly public.
              The question remains as to whether defendants were
    entitled to summary judgment on the issue of access to records
    claimed by them to be privileged and not open to public inspection.
    The answer to this question depends upon the resolution of two
    further questions:   (1) Was the district court correct in its
    view that it was not required to review the records and make a
    determination as to which of them are public and which private?
    and (2) Is there any genuine issue of material fact as to the
    confidential character of the records which defendants claim to
    be confidential?
              This Court has held that it is proper in a mandamus
    action for the Court to determine whether the plaintiff is en-
    titled to partial relief.   State v. State Bank of Moore, supra.
    Particularly where the public interest is involved, the Court
    should grant such relief as the circumstances warrant, whether
    it is all or less than that sought.    State ex rel. Stuewe v.
    Hindson, 
    44 Mont. 429
    , 
    120 P. 485
    ; State ex rel. Morgan v. Ret.
    Sys., 
    136 Mont. 470
    , 
    348 P.2d 991
    .    Although it is true that
    neither plaintiffs nor the general public have a direct financial
    interest which will be affected by the outcome of this action,
    protection of those who have sustained injury while engaged in
    industry is a matter of public interest, and the proper operation
    
    of the compensation program designed for their protection is a
    matter of general public interest, as, indeed, is the effective
    administration of all agencies of the state government.      In
    the present situation, the court should give such relief as
    the circumstances justify. As to the first question posed, it
    is our view that the court was in error.
              As to the second question defendants contend that it
    is apparent from the depositions and answers to interrogatories
    on file that the records in question contain information which
    is confidential in character, thus leaving no genuine issue of
    material fact to be decided.   However, the question as to the
    extent to which confidential and nonconfidential information
    may be unnecessarily intermingled,and the question as to whether
    nonconfidential information has been withheld because it happens
    to appear in individual claim files along with confidential in-
    formation, are genuine issues of material fact which have not
    been decided.
              Further, information available to the district court on
    the nature and contents of the records in question is based
    largely upon descriptions, opinions and conclusions.      An exam-
    ination of answers to interrogatories shows that they contain
    such statements as these:   "This again is completely confidential
    because it is an index purely for the employees of the board and
    gives entirely too much information on claimants and is confi-
    dential under the rules of the board"; "This item gives claimants
    name and address, the amount he received in settlement, and other
    confidential information."; "This file contains   * * *   other per-
    tinent records, confidential under section 92-809."
              The district court did not have before it the original
    records or true copies thereof and depended upon descriptions
    of the records and their contents as provided in the depositions
    and answers to interrogatories.
              On a motion for summary judgment, depositions and answers
    eo i n t e r r o g a t o r i e s c a n be c o n s i d e r e d o n l y t o t h e e x t e n t t h a t
    
    they contain admissible evidence.                           6 Moore's F e d e r a l P r a c t i c e ,
    
    11 5 6 . 1 1 ( 4 ) , p.    2 1 9 1 ; Roucher v . T r a d e r s      &   General Insurance
    
    Company, 
    235 F.2d 423
    .
    
                       P a r o l e v i d e n c e of t h e c o n t e n t s of p u b l i c r e c o r d s
    
    v ~ o l a t e st h e b e s t e v i d e n c e r u l e and i s i n a d m i s s i b l e .     29 Am J u r
    
    2 d , Evidence, Sec. 482, p . 541; 32A C.J.S.                            Evidence 6 8 0 4 , p.
    
    137.
    
                       There was i n s u f f i c i e n t competent e v i d e n c e f o r t h e
    
    c o u r t ' s c o n s i d e r a t i o n i n g r a n t i n g t h e motion f o r summary judgment.
    
    I f t h e r e c o r d i s i n a d e q u a t e , a motion f o r summary judgment must
    
    be d e n i e d .      American S e c u r i t Company v . Hamilton G l a s s Company,
    
    
    254 F.2d 889
    .
    
                       The burden of showing t h e a b s e n c e of a g e n u i n e i s s u e
    
    of m a t e r i a l f a c t i s on t h e movant.              Byrne v . P l a n t e , 
    154 Mont. 6
     , 
    459 P.2d 266
    .              T h a t burden h a s n o t been met h e r e .
    
                       W e f e e l it i s p r o p e r h e r e t o make some o b s e r v a t i o n s .
    
    Wlth l i t e r a l l y t h o u s a n d s of c a s e f i l e s , e x t e n d i n g o v e r many y e a r s ,
    
    ~t seems o b v i o u s t h a t f o r a s i n g l e l i t i g a n t such a s p l a i n t i f f
    
    h e r e t o make a b r o a d c a s t s e a r c h and r e q u i r e p e r h a p s numerous
    
    s t a t e employees t o examine i n t o t h e f i l e s , may c r e a t e a n undue
    
    burden upon s t a t e government; b u t t h e d i s t r i c t c o u r t h a s t h e
    
    power under t h e r u l e s by a p p o i n t i n g commissioners, i f need b e ,
    
    o r i n some o t h e r manner a s c e r t a i n i n g a r e a s o n a b l e method of i n -
    
    spection during a reasonable period t o provide t h e information
    
    desired.
    
                       I t f u r t h e r a p p e a r s from t h e answers t o t h e i n t e r r o g -
    
    a c o r i e s t h a t t h e method of r e c o r d k e e p i n g by t h e I n d u s t r i a l
    
    A c c i d e n t Board i s s u c h t h a t l e g a l l y c o n f i d e n t i a l m a t e r i a l      and
    
    nonconfidential m a t e r i a l i s intermingled, perhaps i n a d v e r t l y o r
    
    deliberately.              But, w h i l e t h i s may c r e a t e d i f f i c u l t problems of
    exa~ninationand segregation of the material, the district court
    nas sufficient power and a duty to ascertain what materials are
    not confidential and to make such materials available for public
    
    inspection.
             While there are other specific problems presented
    here, including the effective use of attorney general's "opinions"
    or "directives" we think it premature at this time to discuss
    these matters since this cause is being returned to the district
    court for further proceedings.
             For these reasons the court's order granting the motion
    for summary judgment and dismissing plaintiffs' petition was in
    error and the case is remanded to the district court with in-
    structions to vacate, set aside and hold for naught its order and
    for further proceedings not inconsistent with this opinion.
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                                     Hon. Bernard W. Thomas, district
                                     judge, sitting in place of Mr. Jus-
                                     tice Frank I. Haswell.