ANGIE SPAR}{S

CLERK DISTRICT COURT

2m7 JUL 13m 9: q LI

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8 MONTANA FIRST JUDICIAL DISTRICT COURT
LEWIS AND CLARK COUNTY
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TARA WALKER LYONS, Cause No. CDV-2016-S47
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12 Plaintiff,
ORDER ON PETITION TO RELEASE
13 v. CONFIDENTIAL CRIMINAL
JUSTICE INFORMATION
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LARRY ATCHISON, CYNTHIA
15 ATCHISON, and John Does 2-5,
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Defendants.
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19 On April 13, 2017, Tara Walker Lyons (f/kla/Tara Walker), acting
20 through counsel, filed a petition for release of confidential investigative records
21 relating to the investigation of Larry Atchison regarding the childhood sexual
22 abuse of Tara Walker over the years of 1994 through 2001. The relevant
23 criminal justice information and child protective services records are in the
24 possession of the Lewis and Clark County Attorney's Office.

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 1 The Lewis and Clark County Attorney's Office filed an answer and

2 brief under seal, also submitting copies of confidential investigative information

3 from the Lewis and Clark County Sheriff's Office and the Department of Public

4 Health and Human Services, Child and Family Services Division (CFSD).

5 Concerned about the individual privacy rights of other potential victims

6 mentioned in the investigative reports, the County Attorney's Office requested

7 the Court conduct an in camera review of the information provided.

8 The Court has conducted an in camera review of the information,

9 consisting of the following:

10 1. Lewis and Clark County Sheriff Crime Report

(07/01/00), 3 pages, with follow-up reports:
11 a. 07/06/00, 1 page;
12 b. 08/07/00, 2 pages; and
c. 08/17/00, 1 page.
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14 2. Lewis and Clark County Sheriff Report (DV)
(03/25/01), 3 pages.
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16 3. Lewis and Clark County Sheriff Report (DV)
(05/02/01), 1 pages.
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18 4. Lewis and Clark County Sheriff Report (Suicide)
(12/21101),6 pages.
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20 5. Lewis and Clark County Sheriff Report (Suicide)
(12/21101), 3 pages.
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22 6. Lewis and Clark County Sheriff Crime Report
(08/20/02),5 pages, with follow-up reports:
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a. 08/23/02, 4 pages; and
24 b. 09/07/02, 3 pages.
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7. Treatment Plan (YINe) (02/13/03) 6 pages.

Order on Petition to Release Confidential Criminal Justice Information - page 2

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1 8. Montana Risk Assessment and Management

System Present Danger Assessment (07/13/15),3 pages.
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3 9. Montana Risk Assessment and Management
System Present Danger Assessment (07/13/15), 17 pages.
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5 10. Case notes (l0/2/15), 4 pages.

6 11. Case Notes (11112/02 through 6/30105),57 pages.

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12. CPS Intake Report (03/27/01),3 pages.
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9 13. CPS Investigative Summary (09/10/2000), 1 page.

10 14, CPS Intake Report (07/21/00), 3 pages.

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15. Investigative Safety Assessment (01/02/07), 5
12 pages.
13 16, Initial Incident report (01/02/07), 2 pages.

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17. Text for Report (09/23/02), 2 pages.
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18. Text for Report (08/20102), 2 pages.
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17 19. Two-page letter from CFSD social worker to Larry
Atchison dated 09/10/02.
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19 20. Two-page letter from CFSD social worker to Larry
and Cindy Atchison dated 09/17102.
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21 The documents generated by CFSD are confidential with specific
22 exceptions and requirements for disclosure:
23 (1) The case records of the department and its local affiliate,
24 the local office of public assistance, the county attorney, and the
court concerning actions taken under this chapter and all records
25 concerning reports of child abuse and neglect must be kept

Order on Petition to Release Confidential Criminal Justice Information - page 3

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1 confidential except as provided by this section. Except as provided

in subsections (8) and (9), a person who purposely or knowingly
2 permits or encourages the unauthorized dissemination of the contents
3 of case records is guilty of a misdemeanor.
(2) Records may be disclosed to a court for in camera
4 inspection if relevant to an issue before it. The COUlt may permit
5 public disclosure if it finds disclosure to be necessary for the fair
resolution of an issue before it.
6 (3) Records, including case notes, correspondence, evaluations,
7 videotapes, and interviews, unless otherwise protected by this section
or unless disclosure of the records is determined to be detrimental to
8 the child or harmful to another person who is a subject of
9 information contained in the records, may be disclosed to the
following persons or entities in this state and any other state or
10 country:
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(e) a child named in the records who was allegedly abused or
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neglected or the child's legal guardian or legal representative,
13 including the child's guardian ad litem or attorney or a special
advocate appointed by the court to represent a child in a pending
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case; ...
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16 Mont. Code Ann. § 41-3-205.
17 Pursuant to Montana Code Annotated § 41-3-205(3)(e), Petitioner is
18 generally entitled to the records related to the investigation of allegations of her
19 abuse. However, the Court must consider whether disclosure of any other
20 potential victims' identity is detrimental or harmful to them and whether the
21 investigative records related to allegations of Larry Atchison's abuse of other
22 potential victims are relevant to the matter at issue and necessary for the fair
23 resolution of the complaint.
24 The Court has reviewed the petition and briefs of the patties and
25 conducted an in camera review of the documents submitted by the County

Order on Petition to Release Confidential Criminal Justice Information - page 4

 I Attorney's Office. With respect to the CFSD records, the Court finds disclosure

2 necessary for the fair resolution of the complaint. Further, with redaction as

3 addressed below, harm to other potential victims is reasonably mitigated.

4 The Lewis and Clark Sheriff Office documents at issue were

5 generated as part of criminal investigations related to the same allegations as the

6 CFSD records. As confidential criminal justice information, the sheriffs office

7 records are subject to Montana Code Annotated § 44-5-303, which provides, in

8 part:

9 [D]issemination of confidential criminal justice information is

restricted to criminal justice agencies, to those authorized by law to
10 receive it, and to those authorized to receive it by a district court
11 upon a written finding that the demands of individual privacy do not
clearly exceed the merits of public disclosure.
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13 The Supreme Court has recognized the constraints that are associated

14 with the right to know when individual privacy is implicated. In Lincoln County

15 Commission v. Nixon, 1998 MT 298, ~~ 15-16, 292 Mont. 42, 968 P .2d 1141, the
16 court stated:

17 The "right to know" is not an absolute right. It is balanced by

the "demand of individual privacy," a right which is also guaranteed
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by Montana's Constitution: "The right of individual privacy is
19 essential to the well-being of a free society and shall not be infringed
without the showing of a compelling state interest." Art. II, Sec. 10,
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Mont. Const.
21 A constitutionally protected privacy interest exists when a
person has a subjective or actual expectation of privacy which
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society is willing to recognize as reasonable.
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24 (Citation omitted.)
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Order on Petition to Release Confidential Criminal Justice Information - page 5

 1 The right to know and the right of privacy are often competing
2 constitutional rights, necessitating a balancing analysis. In Great Falls Tribune
3 Co., Inc. v. Cascade County Sheriff, 238 Mont. 103,105,775 P.2d 1267, 1268
4 (1989), the Supreme Court described the two-part test used to determine whether
5 a person has a constitutionally protected privacy interest. The Court first
6 determines whether a person has a subjective or actual expectation of privacy and
7 then analyzes whether society recognizes that expectation as reasonable.
8 The parties are the subjects of the majority of the records at issue.
9 Petitioner is the subject of allegations of child sexual abuse by Defendant. The
10 civil and criminal reports of investigations into allegations against Defendant
11 involving Petitioner as the victim are relevant to the matter before this Court and
12 fair resolution of the complaint.
13 Petitioner also specifically requested the records related to unknown
14 victims to ascertain Larry Atchison's "propensity to act in a predatory manner
15 toward children." The Court considered the substance of the material itemized
16 above from an expectation of privacy perspective and concludes that the merits
17 of public disclosure in the listed documents exceeds any potential but unasserted
18 right of privacy. The Court finds Petitioner's right to access the material related
19 to her own child sexual abuse, and similar allegations of abuse of other potential
20 victims, outweighs competing privacy interests. Disclosure of the substance of
21 the records is necessary for the fair resolution of the claims made by Petitioner.
22 However, recognizing the privacy interests of another potential victim of alleged
23 abuse by Defendant, the County Attorney's Office and Petitioner agree that
24 redaction of the names of any alleged victim is appropriate.
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Order on Petition to Release Confidential Criminal Justice Information - page 6

 1 The Court finds Petitioner has made a proper showing of eligibility to
2 receive the requested criminal justice and child protective services information
3 related to investigations of abuse by Defendant. Two documents submitted to the
4 Court for review (numbered 4 and 5 above) relate to a suicide and have nothing
5 to do with allegations of child sexual abuse. These records fall outside of the
6 information requested in the petition and should not be included in the disclosed
7 records. The COUl1 finds the actual or subjective privacy rights at issue do not
8 exceed the merits of disclosure of the materials related to allegations against
9 Defendant, but redaction of names, addresses and birth dates of other alleged
10 victims of alleged sexual abuse by Defendant is an appropriate protection of the
11 privacy interests of any other potential victim.
12 The Court notes that the submitted in camera investigative file
13 documents were attached to and filed with the County Attorney's answer brief.
14 These documents should not have been filed prior to the Court issuing an order to
15 do so. Therefore, the Court wi II keep a sealed copy of those documents in the
16 court file and ORDERS that they shall not be accessible to any person without
17 express order of this Court. The Court also ORDERS the Clerk of District COUlt
18 to remove the investigative file documents from the FullCourt filing system.
19 IT IS FURTHER ORDERED that the investigative file materials
20 provided by the Lewis and Clark County Attorney's Office be returned with this
21 Order to that office, which shall then redact the names, addresses and dates of
22 birth of any other alleged victims of child sexual abuse by Defendant and provide
23 a copy of the redacted file to counsel for Tara Walker Lyons. Documents
24 identified above as numbers 4 and 5 shall not be disclosed. Disclosure of the
25 remaining materials is limited to the parties, their legal counsel, and retained

Order on Petition to Release Confidential Criminal Justice Information - page 7

 1 experts only. No other dissemination or discussion of the contents of the material
2 is permitted without further order of the Court.
3 DATED this 12 day of July 2017.
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pc: Molly K. Howard, 201 West Main Street, Suite 201, Missoula MT 59802
8 Eric D. Mills/Christopher A. Hoffman, PO Box 1348, Great Falls MT 59403
9 Anne Peterson, Lewis and Clark County Attorney's Office (hand delivered)

10 KSllflyons v Atchison ord pet release con Ii dential crim info.doc

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Order on Petition to Release Confidential Criminal Justice Information - page 8