F. Addressing government suits against disclosure.

In the last several years, some governmental entities have been filing pre-emptive actions in district court pursuant to the Constitutional right-to-know provision, arguing that certain documents in their custody are private. The action is usually triggered by a media request for those documents. On several occasions, the entity declined to name a respondent, asking the court for an in camera advisory opinion. Fortunately the district court has dismissed the suits. Most recently, and likely as a response to these dismissals, a school board commenced suit and named the local newspaper as a respondent. The board then asked the court to conduct an in camera review to determine whether the documents should be kept secret. In this instance, the newspaper fully participated and the court denied access to the documents on the basis of federal law (Family Educational Rights and Privacy Act of 1974 (FERPA), 20 U.S.C. § 1232g). At press time, the case was on appeal to the Montana Supreme Court. Among the issues to be decided are whether the state constitutional provision is pre-empted by FERPA, and whether a prevailing respondent is entitled to recover attorney’s fees, even though it did not commence the suit. The case is Board of Trustees, Cut Bank Public Schools v. Cut Bank Pioneer Press. The briefing has not started, but can later be accessed through the Supreme Court’s website at www.lawlibrary.state.mt.us/dscgi/ds.py/View/Collection-1981