Right to know bills before Montana legislature explained
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By Caroline Bullock for Montana Transparency Project
Montanans’ constitutional right to know is a cornerstone of government transparency, commanding that we can all access public documents, “except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.”
Though seemingly exceedingly broad, the right’s scope and strength are shaped by court rulings (as seen in last month’s column), gubernatorial decisions and legislative action. These forces significantly influence public access to information, often limiting it.
The Legislature is currently considering a few bills that would alter your right to know, some limiting and some expanding the right.
HB 100: Generally Revise Public Record Laws House Bill 100, sponsored by Rep. Bill Mercer, R-Billings, is a combination of two bills from the 2023 session. The bill aims to streamline how state agencies respond to public records requests, including standardizing information request fees. However, some believe that bringing consistency to responses to records requests will unduly burden access to public information by creating an onerous and costly and uniform policy. One proposed amendment to this bill is the imposition of a $25-an-hour cap on the rate public agencies can charge the requesting citizen for the time they spend researching the request, which addresses some of the worries of the bill’s opponents.
HB 264: Generally Revise Wildlife Location Data Subject to Public Information Requests House Bill 264, introduced by Rep. Jonathan Karlen, D-Missoula, proposes revisions to the handling of wildlife location data in response to public information requests. If enacted, HB 264 would limit public access to specific wildlife location data, aiming to protect wildlife from potential exploitation while still allowing data access for legitimate scientific and educational purposes. This balance seeks to maintain transparency in wildlife management without compromising animal safety. HB 271: Provide That There is a Limited Executive Privilege to the Public Records Act House Bill 271, introduced by Rep. Ed Stafman, D-Bozeman, seeks to establish a limited executive privilege within the state’s public records framework. Executive privilege relates to the governor’s ability to withhold information that would otherwise be public, and was first recognized by the Montana Supreme Court earlier this year in O’Neill v. Gianforte (we wrote about this O’Neill decision in our February column). The court applied the privilege only to documents containing “candid advice” to the governor. House Bill 271 would add structure to executive privilege by defining it by statute. The law would permit the governor to withhold documents that fall under a few specific categories, such as those related to national security, ongoing legal matters, or confidential communications with advisors. Opponents worry that even a limited executive privilege could be abused by a governor to cover up wrongdoing, hide information from the public, and infringe on our collective right to know.
HB 272: Provide That Legislative Bill Drafting Files are Public Records House Bill 272, also introduced by Stafman, seeks to designate bill drafting files as public records. Bill drafting files document the history and process of bill preparation, and are commonly referred to as “junque” files. The introduction of HB 272 follows a district court ruling in the Saslav v. Howe case that mandated the public availability of these files. The bill looks to largely codify that decision in statute and proposes that legislative bill drafting files be classified as public records accessible upon request. Proponents of the bill argued that codifying public access to these files would strengthen Montanans’ right to know, ensuring transparency in the legislative drafting process.
A bill similar to HB 272, albeit slightly different — SB 408 failed to pass the Senate.
SB 40: Revise Supreme Court Public Records Laws by Opening Deliberations and Files to the Public Senate Bill 40, introduced by Sen. Greg Hertz, R-Polson, proposes to amend the state’s public records laws by granting public access to the deliberations and files of the Montana Supreme Court. If passed, SB 40 would represent a significant — and perhaps unorthodox — departure from the Montana Supreme Court’s long-standing tradition of judicial privilege by granting public access to its deliberative processes and associated files, fundamentally reshaping how the courts have operated. Though the bill aims to enhance transparency and public trust in the judicial system, it also raises concerns about the potential impact on judicial independence, and the confidentiality and judicial privileges traditionally associated with court deliberations.
The nature of Montana’s treasured transparency may be impacted by the passing, or failure, of any of these bills. If you feel strongly about any of these measures, we highly encourage you to call your representative or senator. The strength of our state government is only as strong as the Montanans it represents.
