Governor sued for blocking release of public records
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News from Rylee Sommers-Flanagan, Upper Seven Law
HELENA — Governor Greg Gianforte is facing legal action for refusing to release records from the legislative session, according to a new lawsuit filed today in Helena. The lawsuit seeks release of “Agency Bill Monitoring Forms” created by Gianforte and his staff. The forms are new to the executive branch, and precisely what they contain is a mystery, but they likely show whether the Administration believed bills advancing through the legislature had serious legal problems or were unconstitutional. The Governor has refused to divulge any information about the forms—not even how many were sent to and from his Office.
The suit comes after the Governor refused to release any portion of the records in response to information requests. The plaintiff claims that the public has the right to examine documents under the Montana Constitution’s Right to Know provision and that the Governor has improperly cited legal privileges that do not apply to avoid releasing the documents.
In May 2021, Montana citizen Jayson O’Neill requested the Agency Bill Monitoring Forms from the Governor’s Office. In violation of the public’s Right to Know, the Governor denied Mr. O’Neill’s request, asserting that the forms are protected by attorney-client privilege. Mr. O’Neill then requested a privilege log—a routine document that identifies why certain information is privileged. The Governor also denied this request, refusing to disclose even the number of Agency Bill Monitoring Forms created and shared within his Administration.
In Montana, the Right to Know is a constitutional directive that guarantees citizen access to documents and deliberations that public bodies use and produce in their decision-making process. The framers of the Montana Constitution understood that sunlight is the best disinfectant against corrupt or unscrupulous acts, believing that public participation and transparency fundamentally improve the operation of government. The Right to Know applies to everything from legislation to agency decisions about how to spend taxpayer dollars. The Governor’s Office is not exempt.
Constance Van Kley and Rylee Sommers-Flanagan of the nonprofit law firm Upper Seven Law teamed up with the Graybill Law Firm to file the complaint. “These forms tell the story of what the Governor knew about bills that threatened Montanans’ constitutional liberties,” said attorney Raph Graybill. “Montanans have a constitutional right to observe the deliberations of their government. Montanans need to know whether the Governor’s Office knowingly signed off on unconstitutional legislation or otherwise played a role in creating and passing unsound and unlawful policies to the detriment of Montanans’ freedoms.”
Indeed, the State of Montana is facing unprecedented legal challenges following the 2021 legislative session in which, for the first time in 16 years, a single party controlled both legislative and executive branches. Many of these legal challenges are based on the view that legislators and the Governor abdicated their constitutional responsibilities by knowingly passing unconstitutional laws.
