CITY ATTORNEYS OFFICE CITY HALL, 435 RYMAN MISSOULA, MT 59802 LEGAL OPINION Phone: (406) 523-4614 Fax: (406) 523-4895 99-001 TO: Mike Kadas, Mayor; City Council; Janet Stevens, Chief Administrative Officer; Department/Division Heads FROM: Jim Nugent, City Attorney DATE January 11, 1999 RE: Statutory prohibition on Government Distribution or sale of mailing lists. FACTS: During this past calendar year there have been several inquiries about individuals desiring to obtain lists from municipal government for use in contacting individuals or businesses on the list by mail. ISSUE: Does Montana state law regulate the distribution or sale of mailing lists by government entities? CONCLUSION: Pursuant to Montana Code Annotated 2-6-109, the Montana State Legislature has prohibited government agencies from distributing or selling government compiled lists for use as mailing lists without first securing the permission of those on the list. The Montana Attorney General has held that this statutory prohibition pertains to and prohibits telephone solicitations as well. LEGAL DISCUSSION: Montana Code Annotated 2-6-109 provides: 2-6-109. Prohibition on distribution or sale of mailing lists -- exceptions -- penalty. (1) Except as provided in
subsections (3) through (8), in order to protect the privacy of those who deal with state and local government: (a) an agency may not distribute or sell for use as a mailing list any list of persons without first securing the permission of those on the list; and (b) a list of persons prepared by the agency may not be used as a mailing list except by the agency or another agency without first securing the permission of those on the list. (2) As used in this section, "agency" means any board, bureau, commission, department, division, authority, or officer of the state or a local government. (3) Except as provided in 30-9-403, this section does not prevent an individual from compiling a mailing list by examination of original documents or applications that are otherwise open to public inspection. (4) This section does not apply to the lists of registered electors and the new voter lists provided for in 13-2-115 and 13-38-103, to lists of the names of employees governed by Title 39, chapter 31, or to lists of persons holding driver's licenses provided for under 61-5-126. (5) This section does not prevent an agency from providing a list to persons providing prelicensing or continuing educational courses subject to state law or subject to Title 33, chapter 17. (6) This section does not apply to the right of access either by Montana law enforcement agencies or, by purchase or otherwise, of public records dealing with motor vehicle registration. (7) This section does not apply to a corporate information list developed by the secretary of state containing the name, address, registered agent, officers, and directors of business, nonprofit, religious, professional, and close corporations authorized to do business in this state. (8) This section does not apply to the use by the public employees' retirement board of a mailing list of board-administered retirement system participants to send materials on behalf of a retiree organization formed for board-administered retirement system participants and with tax-exempt status under section 501(c)(4) of the Internal Revenue Code, as amended, for a fee determined by rules of the board, provided that the mailing list is not released to the organization. (9) A person violating the provisions of subsection (1)(b) is guilty of a misdemeanor. There have been several Montana Attorney General opinions concerning the statutory prohibition against the distribution or sale of mailing lists. In 43 Op. Att y Gen. 73 (1990) the Attorney General held that the statutory prohibition against the sale of mailing lists applies to mailing lists of both 2
individual persons and corporations. Prior to this, the Montana Supreme Court held that Montana s constitutional right to privacy applied to corporations as well as individuals. See Mountain State Telephone and Telegraph v. Department of Public Service Regulation, 634 P.2d 181, 188 (1981); and Belth v. Bennett, 740 P.2d 638, 640-641 (1987). Therefore, Montana Attorney General Marc Racicot in 43 Atty. Gen. Op. No. 73 (1990) at page four stated: I therefore hold that the prohibition against public distribution of state agency mailing lists set forth in 38 Op. Atty. Gen. No. 59 (1979) applies with equal force to lists of both individual persons and corporations. (Emphasis added.) A 1988 Montana Attorney General opinion recognized a limited privacy right that limits a statutory exception in Montana Code Annotated 2-6-109. Therefore the constitutional right to privacy prohibits third parties from inspecting and compiling a mailing list from original documents submitted by applicants to the Public Employees Retirement Division of the Montana Department of Administration because those records contain private information. The Montana Attorney General stated at page 3 of his opinion as follows: The Montana Supreme Court has spoken several times of a party s subjective expectation of privacy and whether society considers that expectation reasonable. Montana Human Rights Division v. City of Billings, 39 St. Rptr. 1504, 1509, 649 P.2d 1283, 1287 (1982); Missoulian v. Board of Regents, 675 P.2d at 967. My reading of the Supreme Court s test has been that [I]nformation which reveals facts concerning personal aspects of an individual s life necessarily involve[s] individual privacy. 38 Op. Att y Gen. No. 1 at 4 (1978). I conclude that applicants to the Public Employees Retirement System (PERS) have an expectation that the information provided about beneficiaries in their original applications will remain private. See also Missoulian v. Board of Regents, 675 P.2d at 969. Does society consider this expectation reasonable? I believe it does. Because PERS is in part an insurance plan ( 19-3-1002, 19-3-1201, MCA), Montana s Insurance Information and Privacy Protection Act ( 33-19-101 to 409, MCA) is an indication of public policy in this area. See, for example, section 33-19-201, MCA, which restricts the use of information gathered for insurance transactions. Also, the policy of the Social Security Administration on the disclosure of information about individuals, 20 C.F.R. 401.300, is directed toward protecting against clearly unwarranted invasion of personal privacy. 3
Passing to the second step of the test set forth above, I must determine the comparative demands of individual privacy and the merits of public disclosure. Because information about beneficiaries involves the disclosural privacy of third persons, I believe a significant demand of individual privacy is involved. See 37 Op. Att y Gen. No. 107 at 463 (1978). On the other hand, because the compilation of a mailing list is involved, I do not believe that the merits of public disclosure are substantial. See 38 Op. Att y Gen. No. 59 at 212 (1979); see also legislative history of 2-6-109, MCA, supra. I note that this analysis appears consistent with the policy of the Social Security Administration: [S]ince there is usually little or no public interest in disclosing information for disputes between two private parties or for other private or commercial purposes; we generally do not share information for these purposes. 20 C.F.R. 401.300. The Montana Attorney General in 38 Op. Att y Gen. 59 (1979) held in part that: 1. Under the provisions of chapter 606, Laws of Montana 1979, agencies are prohibited from distributing a list of persons only if the intended use of such list is for unsolicited mass mailings, house calls or distributions, or telephone calls. The Montana Attorney General at page 3 stated: A mailing list is commonly understood to mean a list of persons or businesses, often accompanied by their addresses and/or telephone numbers, used for unsolicited mass mailings, house calls or distributions, and/or telephone calls, see generally Annotation, 56 ALR3d 457 (1974). Terms of a statute, unless the context indicates otherwise, must be given their natural and popular meaning in which they are usually understood. Jones v. Judge, Mont., 577 P.2d 846 (1978). There is no indication in the context of ch. 606 that the legislature intended to use the term mailing list in any other sense than its ordinarily understood meaning. Therefore, agencies are prohibited from distributing a list of persons only if the intended use of such list is for unsolicited mass mailings. Agencies are not prohibited from distributing or selling such lists for other uses. Another portion of 38 Op. Att y Gen. 59 (1979) held that: Agencies are not required to affirmatively ascertain the intended use for which the list is sought; a clear written disclaimer from the 4
agency as to the proscriptions and penalty of chapter 606 is sufficient. (Emphasis added.) Thus, in closing it is important to note and emphasize that it is extremely important that no one s constitutional personal privacy rights are violated. Each request for a copy of any list compiled by the city government should always be reviewed to ensure that no privacy rights are involved. Further, if any city department or division ever does distribute a government compiled list of names (individuals, businesses or corporations) every page distributed by the city should have stamped or written on it a warning that Montana State law prohibits any use of the list for mail, telephone or personal solicitation and that any violation of this state law is a misdemeanor criminal offense. CONCLUSION: Pursuant to Montana Code Annotated 2-6-109, the Montana State Legislature has prohibited government agencies from distributing or selling government compiled lists for use as mailing lists without first securing the permission of those on the list. The Montana Attorney General has held that this statutory prohibition pertains to and prohibits telephone solicitations as well. OFFICE OF THE CITY ATTORNEY Jim Nugent, City Attorney JN:kmr pc: Personnel file; City Council file; Legal Staff 5