At least one bill vetoed by Gov. Greg Gianforte will become law after a two-thirds majority vote by the legislature.
House Bill 693, which surrounds agency compliance with public information disclosures, passed a veto override on Friday with 105 votes from both chambers.
The joint rules state lawmakers can be polled if the governor vetoes a bill after the session ends and if two-thirds of legislators vote to keep the law, they can override the governor’s veto and it becomes law.
In Gianforte’s veto letter he said the Montana Supreme Court outlined the barriers to the public’s Right-to-Know in the state’s constitution, saying it protects attorney-client privilege and work-product privilege.
The governor is involved in an ongoing lawsuit over a request for forms used to track and give input on legislation during the 2021 legislative session. Gianforte’s counsel argued the forms are protected by attorney-client privilege and are not public information. A Lewis and Clark County District Court judge ordered Gianforte to release the documents in December, saying the argued executive privileges would gut Right to Know, as reported by Montana Free Press.
Gianforte, a Republican, said in the veto letter, sent May 5, that HB 693 would give trial lawyers with deep pockets an “unfair advantage.” He said HB 693 would undermine and potentially circumvent the discovery process in a trial against a state agency, allowing the lawyers suing the state to mine agencies for extra information outside of the discovery process.
“House Bill 693 is an abuse of the Right to Know, and it serves only as a boon for trial lawyers’ private litigation interests, giving them two bites at the apple that most Montanans couldn’t afford,” Gianforte said.
The bill, sponsored by Rep. Bill Mercer, a Billings Republican and former U.S. Attorney for the District of Montana, soared through the legislature, receiving 94 votes in the House and 48 votes in the Senate on third reading.
Mercer said there were circumstances where agencies said they may be on the verge of litigation or the middle of litigation and therefore they will not comply with a right-to-know request.
“I think it’s important that we codify that the right to know is a constitutional right that every member of the public has and that there should not be an agency attempt to fail to comply because they believe there’s going to be litigation,” Mercer said.
He said in the House Judiciary committee that he was previously involved in litigation where the opposing party, a municipality, refused to comply with a Right to Know request because they believed there would be litigation. He said there was no exception to Right to Know for litigation in the constitution.
Derf Johnson with the Montana Environmental Information Center testified that in his work he’s also found state agencies wouldn’t give over information citing potential litigation.
A bill sponsored by Sen. Janet Ellis, D-Helena, provided a deadline for executive branch agencies to respond to public records requests and was signed into law in May.
Two other bills did not get so lucky. House Bill 33, allowing county commissioners to hire outside counsel and initiate civil court proceedings, and House Bill 748 regarding removing the terminology of “morals” in property zoning permissions, both failed to cross the 100 vote threshold and remain vetoed.
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