Gianforte, State Health Department Sued Over Refusal to Release Public Documents

Upper 7 lawsuit challenges the governor’s claim of executive privilege as justification for withholding information

By Alex Sakariassen, Montana Free Press

The Helena-based nonprofit law firm Upper Seven filed a lawsuit Tuesday against Gov. Greg Gianforte and the Montana Department of Public Health and Human Services, alleging the state has concealed information related to its compliance with federal anti-discrimination laws.

In its complaint, filed in Lewis and Clark County District Court, Upper Seven asserted that Gianforte and DPHHS Director Charlie Brereton violated the Montana Constitution’s right-to-know provision by denying the firm access to public records it requested in August.

According to the lawsuit, those requests stemmed from a claim that the governor’s legal staff had advised state agencies not to assure compliance with federal nondiscrimination laws when completing paperwork for federal contracts — a claim tied to the Legislature’s recent passage of Senate Bill 458 defining “sex” in Montana law as binary. Both DPHHS and the governor’s office asserted executive privilege in denying the requests.

“In Montana, the days of policymaking in the dark and behind closed doors are long gone,” Upper Seven Executive Director Rylee Sommers-Flanagan said in a press release Tuesday. “Neither the Governor’s Office nor DPHHS can explain their refusal to provide copies of the guidance they issued to employees, apparently instructing them to reserve the right to discriminate against Montanans when distributing federal funds. But the Montana Constitution requires transparency. And the governor must obey the Constitution he has sworn to uphold.”

A spokesperson for Gianforte’s office declined comment Tuesday afternoon, noting that the administration doesn’t comment on pending litigation. 

Upper Seven asked the district court to order DPHHS and the governor’s office to produce the requested records, which the firm argues contain information about the state’s handling of federal nondiscrimination certifications. The lawsuit also seeks legal fees for bringing the case.

The complaint marks the third legal challenge against Gianforte involving records requests in the past year. Last December, District Judge Kathy Seeley rejected the governor’s assertion of executive privilege in refusing to release communications between his office and state agency heads regarding the potential impacts of state legislation.

And in June, District Judge Chris Abbott granted an order requiring the release of records to two environmental groups that sued Gianforte’s office after it refused to turn over communications between the governor and Idaho-based mining company Hecla. Gianforte announced his intent to appeal the latter decision to the Montana Supreme Court in August.

This story originally appeared in the Montana Free Press, which can be found online at montanafreepress.org.

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