No Right To Access To Background Investigation

Richard Lee applied to be a police officer with the Missoula, Montana Police Department. After conducting a background investigation, the Department refused to hire Lee “based on confidential information discovered during the background investigation.”

Lee requested information about the results of the Department’s background investigation, but the Department refused to provide any information. Lee then filed a lawsuit under Article II, Section 9 of the Montana Constitution, a relatively unique clause which states: “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 merit of public disclosure.”

The Montana Supreme Court found that the background investigation involved documents that were within the scope of Article II, Section 9. The City, however, claimed that Lee had waived his constitutional right to access to the documents when he was in the application process. The Court agreed with the City.

The Court observed that “here, a release signed by Lee stated that ‘I realize that the Missoula Police Department will NOT release the information provided to them by any person, including myself.’ This clearly and unequivocally informed Lee that as a consequence of his decision to sign the release, he would not be allowed access to the results of the background investigation. Lee was under no compulsion to sign the release; he did so voluntarily in order to be considered for possible employment. We find that Lee voluntarily, knowingly, and intelligently waived his constitutional right to examine the results of the background investigations.”

Lee v. City of Missoula Police Department, 2008 WL 2221899 (Mont. 2008).

This article appears in the August 2008 issue