City attorney takes News to task for records request

Doug Howard calls request "troubling"
By: 
Mikaela Koski

Columbus City Attorney Doug Howard is calling the Stillwater County News’ request for sheriff candidate personnel files “troubling” in part because no other candidates are being ask for their files.

Howard has blocked the release of sheriff candidate Gary Timm’s personnel file. Timm is currently a Columbus Police officer.

Recently, the News asked both Timm and fellow sheriff’s candidate Chip Kem, “Would you be willing to open your personnel files in the name of transparency for the voters, as transparency is a big issue for public officials. The top law enforcement officer in the county is certainly a position in which this is important.”

Kem consented immediately, and after a week of communication with the News regarding the legality of releasing the files, Timm also gave consent to release his personnel files.

Howard refused to release Timm’s files to the News without a court order.

A “TROUBLING” REQUEST

At Monday’s Columbus City Council meeting, Howard described to the council some aspects of the News’ information request that he found “troubling.”

He said that all candidates in the upcoming election should be treated equally and fairly, and he feels that is not taking place because the News’ personnel file request was only asked of candidates for the sheriff position. Candidates for county commissioner and treasurer, for example, were not asked for any personnel files.

Howard acknowledged that the argument could be made that, as the top law enforcement officer in the county, it may be important to learn as much information as possible about the candidates for sheriff. However, he said, all public positions are equally important, and all candidates should be treated the same.

Howard also argued that not all personnel files are created equal. He used two examples to illustrate his point.

First, he said that an employee who has been working for a longer time would most likely have a more extensive personnel file than someone who has been employed for a shorter length of time.

His second example involved two employees with different supervisors. A stricter supervisor may be more likely to make notes on an employee’s file than a more lax supervisor.

As for the written permission given to SCN by Timm to release his file, Howard said it is possible for an employee to knowingly and voluntarily sign a waiver to waive his or her right to privacy.

According to Freedom of Information attorney Mike Meloy of Helena, “If the officer consents, the right of privacy is waived and it must be released.”

However, in this specific instance, Howard does not believe Timm’s permission was given voluntarily. Essentially, Howard feels Timm gave permission to release his files simply because he felt pressured into it.

Howard said he was “going down a path I wasn’t familiar with or comfortable with” in regards to the SCN information request.

He closed by saying he hopes a similar situation will not happen again. Howard said people put in a lot of time and effort to run for public office, and such a personnel file problem should not interfere with the candidate’s message.

COUNCIL’S REACTION

After Howard concluded, Alderman Terry Nystul told Howard his explanations seemed like a “smoke screen,” and by putting up such a fight, it appears that Howard is trying to hide something.

Howard denied that he was hiding anything, and the remaining five council members voiced support for Howard’s decision. They said he is doing a good job at fulfilling his role as the city attorney.

COURT ORDER PROCESS

“Any time the city gets a request for a personnel file, we take it very seriously,” Howard noted on Monday.

Personnel files are maintained by the city and many times contain confidential information, Howard explained. He said a personnel file request from the media typically occurs after there has been an allegation of wrong-doing, not during an election.

In the News’ written request to Howard, documents were asked for with the understanding that all third parties’ information would be redacted to maintain privacy rights.

Howard has not responded in writing or verbally to the News’ written request, which was delivered to City Hall on April 30.

After researching the precedence set by Montana Supreme Court decisions regarding the release of personnel files, Howard said he could not find any cases specifically involving candidates for public office.

Howard explained that during a court order, such as the one he is requiring the News to obtain, both the media and the individual involved have an opportunity to explain why the records should or should not be released. The judge will then weigh the public’s “right to know” against the individual’s “right to privacy,” both rights guaranteed in the Montana State Constitution.

Howard did not respond in writing or verbally to the News’ written request, which was delivered to City Hall on April 30.

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