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Court orders Governor to release documents to public, rejects “Executive Privilege” bid

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News from Constance Van Kley, Upper Seven Law Firm

HELENA — A Montana District Court has ordered Governor Greg Gianforte to produce documents he fought for two years to withhold, rejecting the Governor’s theory that he could withhold documents merely because they relate to his position as Governor. First Judicial District Court Judge Kathy Seeley held that the Montana Constitution’s Right to Know Clause allows the public to view government deliberations and ordered the Governor to produce the documents for further review.

“In Montana, the people are the source of—and ultimate check on—all power enjoyed by elected officials,” said Constance Van Kley, Litigation Director for Upper Seven Law. “The Court’s well-reasoned order ensures that the people remain at the center of our constitutional system.”

Plaintiff Jayson O’Neill brought suit last year after the Governor refused to release “Agency Bill Monitoring Forms,” which are believed to contain the Administration’s views of various bills making their way through the 2021 Legislature. Among other theories, the Governor claimed that he could shield everything—even the formatting of the documents—from public view under a “deliberative process privilege” or an “executive privilege.” He traced these privileges in briefing back to privileges enjoyed by English monarchs.

On Dec. 14, 2022, the Court granted Mr. O’Neill’s motion for summary judgment, ordering the Governor to produce the requested materials for the Court’s review. The Court rejected the Governor’s assertions of privileges from other jurisdictions, finding that what other states do “is not compelling in light of the unique, clear, and unequivocal language” of Montana’s Right to Know. Reviewing the transcript of Montana’s Constitutional Convention, the Court found no support for the Governor’s claim that the Framers intended to permit governors and agencies special secrecy in performing their duties. It unequivocally rejected the claim that the Governor’s decision-making process can be shielded from public scrutiny: “Recognizing broad executive privileges would effectively gut the right to know as it applies to the Executive Branch because every document may inform the Governor’s decision making in some way.”

“The Governor is not a king,” said Raph Graybill of Graybill Law Firm. “The Court’s order upholds the bedrock principle in Montana that no one is above the law, and that our citizens get to know what their government is up to.”

O’Neill is represented by Constance Van Kley and Rylee Sommers-Flanagan of Upper Seven Law, and Raph Graybill of Graybill Law Firm, PC.

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