Open Records in Montana

Allowing various agencies to subjectively charge by the hour to retrieve public documents is another hurdle

By Kellyn Brown

After a long drive to Big Sky, we arrived a few minutes late to a seminar we had marked on our agenda to hear Mike Meloy speak at the annual Montana Newspaper Association Convention. It’s the first time I’ve met him, but if you work in our business, you’re familiar with his name.

Meloy is as an attorney for the Freedom of Information hotline in Helena and often works with media organizations across the state, many of which contact him first with questions about the state’s open records laws. He began his seminar by explaining consequences of the recent Montana Legislative Session, both good and bad. Here’s what private citizens now face when they attempt to track down documents government agencies might not want them to see.

In a roughly 50-page bill (HB123) revamping open records laws, and which Meloy doubted many lawmakers read, there are new rules that help and hinder your search for information.

First, the good. There are now new requirements, according to Meloy, that agencies keep records for private meetings. There’s another update requiring agencies to respond in writing when it refuses your records request.

Then, there’s the bad, to which Meloy segued by saying, “You should hide children and dogs when the Legislature comes to town.”

There are still old provisions and a few new ones that can be used to deny access to information. Meloy cited examples and the first he highlighted allows various exceptions to turning over documents

Section 3 of HB123 allows a public officer to withhold information “relating to individual or public safety or the security of public facilities, including public schools, jails, correctional facilities, private correctional facilities, and prisons, if release of the information jeopardizes the safety of facility personnel, the public, students in a public school, or inmates of a facility.”

While the government should withhold information if it endangers someone’s safety, Meloy foresees officers withholding what would otherwise be available to the public in order not to violate state law.

Another odd provision of the bill allows the Montana Historical Society to “honor restrictions imposed by private record donors as long as the restrictions do not apply to public information. All restrictions must expire no later than 50 years.” Who will decide if records donated to the Montana Historical Society, a public institute, should be deemed private?

Perhaps the most troubling part of Montana’s updated open records law is the additional costs to obtain records. It’s not unusual for a government agency to charge up to $1 a page for documents, some of which span several years and can cost hundreds of dollars. Of course, you can always travel to the court house and take photographs of records, but some government employees frown on that, too.

Now, obtaining agency records may become more expensive because HB123 includes a provision that allows public agencies to charge those seeking government documents a fee for the “time required to gather public information,” and the requestor can be asked to “pay the estimated fee prior to identifying and gathering the requested public information.”

To be clear, it is easy to access records in Flathead County, but obtaining records from other municipalities across the state can prove difficult and expensive. And allowing various agencies to subjectively charge by the hour to retrieve public documents is another hurdle to a fully transparent government.

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