Montana judge to governor: Turn over records for review

By: - December 15, 2022 6:40 pm

The stairs of the Montana Capitol in Helena, Montana (Photo by Eric Seidle for the Daily Montanan).

A Montana district court ordered Gov. Greg Gianforte to turn over internal office records for its review and possible release, dismissing much of his argument the documents could be withheld from the public due to “executive privilege.”

In 2021, plaintiff Jayson O’Neill sued the Governor’s Office after it denied his request to see “Agency Bill Monitoring Forms” used to track legislation.

“If Montana courts were to recognize the kind of privilege the governor has described, it is unclear whether any documents in the governor’s control would remain subject to disclosure,” Judge Kathy Seeley ruled this week.

The order said the known content of the forms includes a summary of the bill by the affected agency, the agency’s recommendation for it, and whether attorneys believe it would trigger litigation if passed.

Comments from lawyers

Plaintiff Jayson O’Neill is represented by Constance Van Kley and Rylee Sommers-Flanagan of Upper Seven Law, and Raph Graybill of Graybill Law Firm, PC, who provided the following statements in a news release:

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

“The Governor is not a king. 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.” – Raph Graybill of Graybill Law Firm

The governor had said he would only produce the documents and a records log for review if directed to do so by the court, the order said.

“The governor is asserting a categorical exemption from the right to know and has not disclosed any documents, not even a blank ABM form,” the order said.

In withholding the documents, the governor argued the forms were designed to advise him in his deliberations, and the documents and related emails were “privileged in their entirety,” the order said.

The state also said the forms should remain private as part of attorney-client privilege. The governor argued disclosure would have “the effect of chilling candid legal communication among agency counsel,” the order said.

The governor also “appeals to the common law of England as the authority that binds this court to recognize an executive deliberations privilege in Montana,” the judge said.

In her ruling, the judge said a review of the forms would show how much content, if any, is protected under attorney-client privilege.

However, the judge largely rejected most of the State of Montana’s arguments.

For starters, the Montana Constitution protects the public’s right to know. It says “no person shall be deprived of the right to examine documents or to observe deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.”

“The Supreme Court has long said that the right to know provision ‘speaks for itself,’ and ‘applies to all persons and public bodies of the state and its subdivisions without exception,’” Seeley wrote in the order. 

However, the order said the right to know is not absolute. For example, the judge said privacy and attorney-client privilege are other factors that weigh in a decision, although the latter should not be used “to impede transparency.”

When it comes to the governor’s argument the documents are covered by “executive privilege,” the judge noted the Montana Constitution affords citizens greater rights to records than the U.S. Constitution.

“Here, most of the governor’s legal authority supporting executive privilege is from other jurisdictions, and it is not compelling in light of the ‘unique, clear and unequivocal’ language” of the Montana Constitution’s right to know provision, the order said.

The judge also said the delegates to the 1972 Constitutional Convention discussed exceptions to the right to know, such as confidential criminal justice information, but they didn’t make exceptions for gubernatorial documents.

“At no time did the delegates discuss executive or gubernatorial privileges that would exempt the governor’s deliberations or any documents pertaining to them,” the order said.

Rather, the judge noted one delegate said all documents from government agencies should be available and deliberations open: “Because the ABMs (tracking documents) are a form filled out by agency personnel and deal with policy, namely, the passage of legislative bills, they are precisely the type of government document contemplated by the Framers.”

The judge also dismissed the governor’s argument to rely on the common law of England “so far as it is not repugnant to or inconsistent” with the state or U.S. constitutions: “In this case, an executive privilege is repugnant to the Montana Constitution’s right to know.”

The governor’s argument that executive privilege “serves the public interest” by allowing frank conversations and criticisms also doesn’t square with the right to know, the order said.

“Plaintiff makes the more persuasive policy argument that ‘open government increases accountability by allowing the people to exercise their rights as the final check and balance on elected officials.’ Plaintiff’s view is more closely aligned with the intent of the framers.”

As a matter of law, the judge said “there is no form of executive privilege recognized in Montana.”

“Recognizing broad executive privilege 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 order said.

Although the judge said the plaintiff doesn’t get access to “unredacted documents wholesale,” she said the forms are “not privileged in their entirety or categorically exempt from the right to know.”

The order said the judge will privately review the records, and the governor will have the burden of proving the documents are protected by attorney-client privilege.

Order Granting Summary Judgment

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Keila Szpaller
Keila Szpaller

Keila Szpaller is deputy editor of the Daily Montanan and covers education. Before joining States Newsroom Montana, she served as city editor of the Missoulian, the largest news outlet in western Montana.