Gianforte mum about legislative tracking form, claims executive, deliberative privilege

Governor says all forms used to make decisions about legislation should be off limits to the public

By: - April 21, 2022 6:05 pm

Montana Gov. Greg Gianforte speaks at conference promoting new tools for those in addiction treatment in Billings on July 27, 2021 (Photo by Darrell Ehrlick of the Daily Montanan).

Montana Gov. Greg Gianforte wants a state district court to find that he does not have to produce a single piece of paper that may give insight into what bills he signed, vetoed or suggestions he had during the 2021 legislative session, according to an ongoing lawsuit.

Resident Jayson O’Neill filed a lawsuit in Lewis and Clark District Court last year after he requested “Agency Bill Monitoring Forms” from the Governor’s Office. Those forms, apparently a creation of the Gianforte Administration, were a means to track legislation and give input. However, what those forms contain is largely a matter of speculation in the legal briefs because Gianforte’s office and counsel insist they’re part of attorney-client privilege and the entire bloc of forms is not public information.

In a recent response, Dale Schowengerdt and John Semmens of Crowley Fleck in Helena argue that Gianforte is not a public body and therefore not subject to the Montana Constitutional provisions for public records disclosure. They also argue that attorney-client privilege applies to all of the bill tracking forms. Finally, the attorneys cite Washington state law, saying Montana should recognize both an executive privilege that would keep those records from the public, and also a deliberative privilege, which in some states protects executives from releasing materials associated with the legislative decision-making process. However, Montana has not recognized either privileges.

In a motion on Wednesday, O’Neill’s attorneys Constance Van Kley and Raph Graybill ask Lewis and Clark County Judge Christopher Abbott for summary judgment, finding that the bill tracking forms are public record under Montana’s constitutional right-to-know provisions, and that Gianforte illegally withheld the records, failing to even produce a document log that asserted attorney-client privilege. In Montana, when documents are withheld from the public, but still fit within the scope of a public information request, agencies are required to produce a “document log,” which broadly describes the document and why it’s being withheld.

Conversely, some state agencies and departments release requested records, but redact sensitive or “privileged” information. For example, in Montana much information on an individual may be public, such as property records, but sensitive, private information like Social Security numbers are often redacted – or blacked-out – before being released to the public.

Attorney-client privilege

In the lawsuit, Gianforte argues that the forms are protected by attorney-client privilege. Ostensibly, lawyers from various agencies gave their input or perspective on proposed legislation. However, in the original public records request, O’Neill was denied any of them because the “privilege surrounding the requested documents is categorical.”

However, in their response brief, Van Kley and Graybill argue that attorney-client privilege is used when either facing legal action or engaged in a lawsuit. However, the legislative process is a political one, and even if attorneys are consulted, there’s not a legal threat because the governor also has immunity in fulfilling his job, which includes considering and signing legislation.

“Attorney-client privilege shields from disclosure only legal advice, and the decision whether to veto or sign a bill is political, not legal, regardless of whether lawyers are involved,” the legal brief said. “The governor does not categorically have an attorney-client relationship with every lawyer working within every executive branch agency.

“At times, such a relationship may exist. But circulating documents and communications to an attorney does not protect that which would otherwise be protected.”

The lawsuit points out that because no information about the tracking forms has ever been released, other employees or advisers may be looking at the forms in addition to lawyers. But because Gianforte refuses to turn over more information, it’s difficult to challenge in court.

“It is impossible to know to whom they were distributed,” the motion states. “The governor’s refusal to produce a privilege log and/or redacted documents means that the Plaintiff cannot determine whether any privilege was waived. If anyone outside of the attorney-client privilege relationship had access to the forms, however, the privilege was waived.”

[Subhed] Privacy and deliberation privileges [/subhed]

Some states grant the governor executive privilege, covering wide swaths of documents, rendering them off-the-record. However, Montana stands in stark contrast, saying that citizens have the right to know what their government is doing, especially when deliberating or in the decision-making process.

The filing for Gianforte suggests the court should follow other state’s suits and find that the governor has an executive privilege. Barring that, the lawsuit suggests that documents that are used in the decision-making process for pending legislation should be kept confidential.

However, lawyers for O’Neill argue that is exactly opposite of the state’s constitution.

“The (Montana Constitution) expressly provides for the right to observe governmental ‘deliberations,’ and for good reason: A well-informed citizenry understands not only the decisions are made by the reasons for those decisions,” the suit said. “The state and its political leaders have no privacy interest in their public policymaking – the very idea is antithetical to the right to know.”

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Darrell Ehrlick
Darrell Ehrlick

Darrell Ehrlick is the editor-in-chief of the Daily Montanan, after leading his native state’s largest paper, The Billings Gazette. He is an award-winning journalist, author, historian and teacher, whose career has taken him to North Dakota, Minnesota, Wisconsin, Utah, and Wyoming.