SYNOPSIS OF THE CASE

07/03/2019

Case Number: DA 18-0374
2019 MT 153: DA 18-0374, JON KRAKAUER, Petitioner, Appellee, and CrossAppellant, v. STATE OF MONTANA, by and through its COMMISSIONER OF
HIGHER EDUCATION, Clayton Christian, Respondent and Appellant, v. John Doe,
Intervenor and Appellant.1

Krakauer, a writer, sought the student education record of a specific student, John
Doe , whom Krakauer believed was a prominent athlete and alleged to have committed
sexual intercourse without consent. The University Court concluded Doe had committed
the offense and sanctioned him to expulsion. Doe appealed that conviction to the
Commissioner of Higher Education. Thereafter, Doe remained in school and continued to
participate in athletics. Krakauer made a request to the Commissioner for Doe’s student
education records and asserted he had the right to inspect Doe’s records under Montana’s
constitutional right to know. However, pursuant to federal and state law protecting the
privacy rights of student’s in their education records, the Commissioner refused to permit
inspection or release of Doe’s education records.
2

Following the Commissioner’s refusal, Krakauer initiated a court action to obtain
the records. In his first appeal to the Montana Supreme Court, the Court recognized that
students have an enhanced privacy interest in their education records under both state and
federal law. The Court remanded the case to the trial court to conduct an in-camera review
of the records and determine whether the demands of Doe’s enhanced privacy interest
clearly exceeded the public’s right to know. After conducting an in-camera review, the
trial court ordered Doe’s records be disclosed.
A second appeal followed. In this appeal, the Court recognized that the public has
a weighty interest in understanding how the University and the Commissioner deal with
sexual misconduct allegations. However, the Court explained Krakauer’s interest in Doe’s
education records arose from Doe’s status as a high-profile athlete. The Court concluded
that a student’s enhanced privacy interest is not dependent on the level of public interest in
the student and that, consequently, Doe’s status as a prominent student-athlete did not
diminish his privacy interest. Further, the fact that some of the information contained in
the records was already available to the public after Doe’s separate, highly-publicized,
1

The Court prepared this synopsis for the reader’s convenience. It constitutes no part of the
Court’s Opinion and may not be cited as precedent.
2

“John Doe” is an alteration imposed by the Montana Supreme Court. Krakauer referred to the
student by his actual name.

 criminal trial, did not diminish his privacy interest. Finally, because Krakauer’s request
for information named Doe specifically, redaction of Doe’s name and other identifying
information would be futile. The futility of redaction left the enhanced and weighty privacy
interest of the student unprotected and the enhanced privacy protection to be afforded that
interest meaningless. Therefore, the Court denied Krakauer’s request to examine the
documents, determining the demand of Doe’s enhanced student privacy interest in his
records clearly exceeds the merits of public disclosure.
The dissenting justices believed the constitutional right to know provision required
a limited release of information which set forth the Commissioner’s decision and the
grounds on which he made it, as a review of the decision reveals that it was premised upon
process issues. The dissent maintained that the Commissioner is a high government official
exercising statewide authority, and that the public’s right to know encompasses a contested
case involving a University matter and a student.

2