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Montana

Open Government Guide

Author

Peter Michael Meloy, Esq.
MELOY LAW FIRM
P.O. Box 1241
Helena, Montana 59624-1241

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Foreword

Montana's populist roots promoted early adoption of statutory "open records" mandates. Montana's first open records law was passed six years after statehood in 1895 and guaranteed:

Every citizen has a right to inspect and to take a copy of any public writings of this state … (and) (e)very public officer having the custody of a public writing … is bound to give (citizens) on demand a certified copy of it.

Mont. Code Ann. § 2-6-102. (emphasis added).

It was not until 1963, however, that the legislature statutorily required open governmental meetings. The legislative purpose of the 1963 law tracks the populist philosophy which serves as its underpinning:

It is the intent of this part that actions and deliberations of all public agencies (in Montana) shall be conducted openly. The people of the state do not wish to abdicate their sovereignty to the agencies which serve them. Towards these ends, the provisions of the part shall be liberally construed.

Mont. Code Ann. § 2-3-201.

The "part" referred to above requires that all meetings of governmental bodies "supported in whole or part by public funds or expending public funds" must be open to the public. This statutory provision is among the broadest in the nation with respect to the deliberative bodies it touches.

Finally, when the 19th century Montana Constitution was re-written in 1972, this statutory philosophy was raised to constitutional levels. The 1972 Constitution, Article II, § 9 reads:

No person shall be deprived of the right to examine documents or to observe the 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.

In response to this provision, the Montana Legislature commissioned a study to determine which, if any, statutes needed to be amended in order to comply with this new constitutional mandate. In 1975 and again in 1977 the legislature passed several amendments to the open meetings and open records laws to mold a statutory framework that implemented the new constitutional provision. These statutory and constitutional constraints today provide Montana citizens strong statutory and constitutional tools with which to compel open government.

As might be expected, however, these constitutional and legislative efforts have not lessened the tendency of governmental bodies toward secrecy. Montana officials, not unlike officials in other states, believe the public's business can most efficiently be carried on in secret. Thanks to a vigilant press and active public interest groups willing to litigate, Montana government has not been covert with impunity.

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Open Records

Article II, Section 9 of the Montana Constitution creates a presumption that all records of any governmental entity be open for public inspection. This presumption can only be overcome if the entity establishes that the demands of individual privacy clearly exceed the merits of disclosure.

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I. Statute

Article II, Section 9 has been implemented by statute: Mont. Code Ann. §2-6-1001 et. seq. §2-6-1002 defines a public record as “information” fixed in any medium and retrievable in usable form prepared, owned used or retained by any public agency relating to the transaction of official business.

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A. Who can request records?

1. Status of requester

Mont. Code Ann. § 2-6-1006 authorizes a “person” to request public information from a public entity. Any citizen from another state, or anyone else, can make a request directly of the public body without regard to residence. Krakauer v. Commissioner of Higher Education, 384 Mont. 527, 381 P.3d 524 (2016).

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2. Purpose of request

Subject to the "privacy" concerns expressed by the Montana Supreme Court and discussed below, the purpose for which the records are requested has no bearing or relevance on the right of the requester to receive the records. However, see Engrav v. Cragun, 236 Mont. 260, 769 P.2d 1224 (1989), where the Montana Supreme Court decided that under the Montana Criminal Justice Information Act, a college student did not demonstrate sufficient interest in confidential criminal justice information to outweigh rights of privacy.

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3. Use of records

Finally, there is no restriction placed on subsequent use of information provided.

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4. Can an individual request records on behalf of a third party or organization?

B. Whose records are and are not subject to the Act

The public records statute Mont. Code Ann. § 2-6-1002(10) and (13) defines a public record as “information” fixed in any medium and retrievable in usable form prepared, owned used or retained by any public agency relating to the transaction of official business.

No agency is specifically exempt from application of the public records provision. However, a number of specific types of records are rendered "confidential" by separate legislative act.

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1. Executive branch

All records of the Executive Branch, except those specifically exempt, are subject to the Constitution and the Public Records Act.

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2. Legislative bodies

The Public Records Act does not specifically exempt legislative records. Further, the Montana Constitution, Article V, § 10(3), requires that "(t)he sessions of the legislature and of the committee of the whole, all committee meetings, and all hearings shall be open to the public." Although no court has addressed legislative records, this constitutional mandate for open meetings coupled with the lack of exemption on legislative branch records all lean in favor of openness.

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3. Courts

There is no exemption for court records, and all court records, unless those records are specifically under court seal, are open for public inspection. In Missoulian v. Montana Twenty-first Judicial District Court, 281 Mont. 285, 933 P.2d 829 (1997), the Supreme Court held that the district court violated both the Constitution and Mont. Code Ann. § 46-11-701, when it issued a blanket order sealing all evidence in a criminal case without following a strict balancing test between the public's right to know and the defendant's right to a fair trial.

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4. Nongovernmental bodies

The Public Records Act is silent as to whether these groups' records are open. See Mont. Code Ann. § 2-6-1002(10).  However, the state constitution guarantees public access to the records of "public bodies" defined under the open meetings law as bodies "or organizations or agencies supported in whole or in part by public funds," Mont. Code Ann. § 2-3-203(1), and the Supreme Court used definitions found in the Montana Procurement Act to conclude that an advisory committee of the Department of Corrections was subject to the constitutional right to know in Great Falls Tribune Co. Inc. v. Day, 289 Mont 155, 959 P.2d 508 (1998). Thus, a requesting party should argue that these entities are covered by the Public Records Act, particularly if they receive public funds. See also Bryan v. Yellowstone Co. Elem. Sch. Dist. No. 2, 312 Mont. 257, 60 P.3d 381 (2002) (Montana Supreme Court held that a committee created by a school district to research a proposition and submit a recommendation to the school board was a public or governmental body subject to the right to know provision of the Montana Constitution and held the documents submitted by the committee were public documents subject to disclosure).

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5. Multi-state or regional bodies

On its face, the Public Records Act only applies to public records of a Montana governmental body. Mont. Code Ann. § 2-6-1002(10). However, if the multi-state or regional body receives governmental funds, it is arguably covered by the open records laws because the state constitution guarantees public access to the records of "public bodies" defined under the open meetings law as bodies "or organizations or agencies supported in whole or in part by public funds," Mont. Code Ann. § 2-3-203(1), and the Montana Supreme Court used definitions found in the Montana Procurement Act to conclude that an advisory committee of the Department of Corrections was subject to the constitutional right to know in Great Falls Tribune Co. Inc. v. Day, 289 Mont. 155, 959 P.2d 508 (1998).

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6. Advisory boards and commissions, quasi-governmental entities

The Public Records Act is silent as to whether these groups' records are open. See Mont. Code Ann. § 2-6-1002(10). However, the state constitution guarantees public access to the records of "public bodies" defined under the open meetings law as bodies "or organizations or agencies supported in whole or in part by public funds," Mont. Code Ann. § 2-3-203(1), and the Montana Supreme Court used definitions found in the Montana Procurement Act to conclude that an advisory committee of the Department of Corrections was subject to the constitutional right to know in Great Falls Tribune Co. Inc. v. Day, 289 Mont 155, 959 P.2d 508 (1998). Thus, a requesting party should argue that these entities are covered by the Public Records Act, particularly if they receive public funds.

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7. Others

In Bryan v. Yellowstone Co. Elem. Sch. Dist. No. 2, 312 Mont. 257, 60 P.3d 381 (2002) the Montana Supreme Court held that a committee created by a school district to research a proposition and submit a recommendation to the school board was a public or governmental body subject to the right to know provision of the Montana Constitution and held the documents submitted by the committee were public documents subject to disclosure; see also Goldstein v. Commission on Practice of Supreme Court, 297 Mont. 493, 995 P.2d 923 (2000) (Montana Supreme Court held that confidentiality provisions of Rules on Lawyer Disciplinary Enforcement did not violate an attorneys' right to know or right to participate in government decisions by excluding attorney from the deliberations of Commission on Practice following the filing of formal complaint and held that Commission was not subject to open meeting requirements and sat in only advisory capacity to Supreme Court).

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C. What records are and are not subject to the act?

1. What kinds of records are covered?

Mont. Code Ann. §2-6-1002 defines a public record as “information” fixed in any medium and retrievable in usable form prepared, owned, used, or retained by any public agency relating to the transaction of official business. Again, there are several statutory impositions declaring certain records to be "private" and thus excludable from public inspection.

However, if the record is not one generated by the public body and does not relate to the function and duties of that body, it is not a "document of public bodies" referred to in the Constitution. See Becky v. Butte Silverbow District No. 1, 274 Mont. 131, 906 P.2d 193 (1995) (request for National Honor Society records).

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2. What physical form of records are covered

Mont. Code Ann. § 2-6-1002(13) states that information "fixed in any medium and retrievable in usable form for future reference” is open to the public, subject to the same restrictions that apply to information in printed form.

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3. Are certain records available for inspection but not copying?

Records are available under the Act for copying as well as inspection.

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4. Telephone call logs

If the public agency maintains call logs, they are open.

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5. Electronic records (e.g., databases, metadata)

Electronic information is treated like printed information. Mont. Code Ann. § 2-6-1006(13).

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a. Can the requester choose a format for receiving records?

Yes.

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b. Can the requester obtain a customized search of computer databases to fit particular needs

Yes.

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c. Does the existence of information in electronic format affect its openness?

No.

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d. Online dissemination

No statutory or case law on this issue.

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6. Email

7. Text messages and other electronic messages

8. Social media posts

9. Computer software

Software and meta-data residing on government computers are subject to public inspection.

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10. Can a requester ask for the creation or compilation of a new record?

D. Fee provisions

1. Types of assessable fees (e.g., for search, review, duplication) and levels or limitations on fees

The Public Records Act authorizes the governmental entity to charge a fee, but it may not exceed the actual costs incident to fulfilling the request. Mont. Code Ann. § 2-6-1006(3).

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2. Particular fee specifications or provisions

Although the agency is not required to customize a records request response, if it agrees to customize, it may charge the costs of the customization as part of the fee. Mont. Code Ann. § 2-6-1006(4) and (5).

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3. Provisions for fee waivers

Montana has no code sections regarding fee waivers in special cases such as when disclosure would be in the public interest.

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4. Requirements or prohibitions regarding advance payment

Mont. Code Ann. § 2-6-1006(4) permits the agency to require advance payment before it undertakes any gathering of records.

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5. Have agencies imposed prohibitive fees to discourage requesters?

Yes. Although the statute authorizes charging a fee for the costs of gathering the information, it is not uncommon for the agency to include the costs of a legal review of the documents as part of these costs. When it does so, the fee becomes prohibitive.

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6. Fees for electronic records

E. Who enforces the Act?

There is no specific provision for enforcement under the act, and most provisions are enforced through citizen-initiated lawsuits.

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1. Attorney General's role

The Attorney General has no specific role by statute, but may issue advisory opinions answering questions of law raised by public agencies or officials. Private citizens may not request Attorney General opinions.

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2. Availability of an ombudsman

There is no availability of an ombudsman under this act.

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3. Commission or agency enforcement

There is no specific provision for commission or agency enforcement under the act, and most provisions are enforced through citizen-initiated lawsuits. See Mont. Code Ann. § 2-6-107.

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F. Are there sanctions for noncompliance?

There is no specific provision for sanctions; however, a plaintiff who prevails in an action brought in district court to enforce his rights under Article II, § 9, of the Montana Constitution may be awarded his costs and reasonable attorney’s fees. See Mont. Code Ann. § 2-3-221.

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G. Record-holder obligations

1. Search obligations

2. Proactive disclosure requirements

Agencies are not required to post information on websites in order to facilitate examination of documents, although many state agencies do so.

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3. Records retention requirements

All records must be maintained, managed and preserved according to the type of document and the subject to records management plans specific to the agency. Mont. Code Ann. § 2-6-1012-1014.

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4. Provisions for broad, vague, or burdensome requests

A. Exemptions in the open records statute

1. Character of exemptions

The Public Records Act exempts information (1) constitutionally protected from disclosure because it contains private information which clearly exceeds the merits of disclosure, (2) related to judicial deliberations in adversarial proceedings, (3) necessary to maintain the integrity of secure facilities, or (4) designated as confidential through statutes or judicial decisions. Mont. Code Ann. § 2-6-1002(1). The constitutional privacy exception is general in nature and subject to the discretion of the entity, but subject to review by the courts.

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2. Discussion of each exemption

The Montana Constitution sets the standard for exemptions. It provides that no person may be deprived of the opportunity to examine documents except when "the demand of individual privacy clearly exceeds the merits of public disclosure." Mont. Const., Art. II, § 9.

The Montana Supreme Court has frequently addressed the privacy exemption to the right to know. In 2003, the Montana Supreme Court, in Great Falls Tribune v. Mont. Pub. Serv. Comm’n, 319 Mont. 38, 82 P.3d 876 (2003), held that the individual privacy exception to the public's right to know and the right of individual privacy in the Montana Constitution are limited to natural human beings only, do not extend to non-human entities such as corporations, and cannot serve as a basis for protecting trade secrets and other confidential proprietary information of non-human entities, overruling Mountain States, Etc. v. Dept. of Pub. Serv. Reg., 194 Mont. 277, 634 P.2d 181 (1981), and its progeny. Great Falls Tribune, 319 Mont. 38, 82 P.3d 876 (2003). The Court also held that nothing in Article II, § 9, requires disclosure of trade secrets and other confidential proprietary information where the data is protected from disclosure elsewhere in the federal or state constitutions or by statute. Id.

In Svaldi v. Anaconda-Deer Lodge County, 325 Mont. 365, 106 P.3d 548 (2005), a retired public school teacher sued the county, alleging breach of her right to privacy and seeking damages for severe emotional distress, based upon the county attorney's disclosure of his discussions with the teacher's attorney in connection with the deferred prosecution agreement. The Montana Supreme Court held that the teacher's privacy rights were not violated by the county attorney's disclosure of discussions and the public's right to know outweighed the teacher's right to privacy.

In Jefferson County v. Montana Standard, 318 Mont. 173, 79 P.3d 805 (2003), the Montana Supreme Court held that any expectation that a county commissioner had as to privacy of information regarding her arrest for driving under the influence was unreasonable, and thus, the right to privacy provision of the Montana Constitution did not preclude disclosure of such information to the newspaper pursuant to the "Right to Know" provision of the Montana Constitution.

In Bryan v. Yellowstone Co. Elem. Sch. Dist. No. 2, 312 Mont. 257, 60 P.3d 381 (2002), the Montana Supreme Court held that a committee created by a school district to research a proposition and submit a recommendation to the school board was a public or governmental body subject to the “Right to Know” provision of the Montana Constitution, that a spreadsheet created by the committee was a public document subject to inspection, and that the school district violated a parent's right to examine public documents when it failed to divulge the spreadsheet upon request. The Court further held that the school board did not provide the parent with reasonable opportunity to participate at the school board meeting due to the board's partial disclosure of information. As a remedy, the Court declared the school board's closure decision null and void.

In Montana Human Rights Division v. City of Billings, 199 Mont. 434, 649 P.2d 1283 (1982), the Supreme Court ruled that certain personnel records could be closed, including matters related to family problems, health problems, employee evaluations, military records, IQ test results, prison records, drug and alcohol problems, and information "most individuals would not willingly disclose publicly." 649 P.2d at 1287.

Read together, these cases have imposed the following judicial guidelines by which records can be withheld from public inspection under the constitutional balancing test:

1. Did the person involved have an actual or "subjective" expectation of privacy; and, if so

2. Is that expectation "reasonable"?

3. If the answers to paragraphs 1 and 2 are affirmative, then the documents containing private information may be withheld if the demands of individual privacy clearly outweigh the merits of public disclosure. If the answer to either 1 or 2 is negative, then the documents are available for public inspection.

In Great Falls Tribune Co. Inc. v. Cascade County, 238 Mont. 103, 775 P.2d 1267 (1989), the Supreme Court held that the privacy of police officers subject to disciplinary proceedings did not outweigh the public's right to know their names and the subject of the disciplinary charges.

Bozeman Daily Chronicle v. City of Bozeman Police Department, 260 Mont. 218, 859 P.2d 435 (1993), held that the newspaper was entitled to obtain the name of a police officer and investigative documents regarding alleged unconsented sexual intercourse with a cadet at the State Law Enforcement Academy, even though the documents were confidential criminal justice information, where the alleged misconduct went directly to the police officer's breach of a position of public trust.

A mayor did not have a "reasonable expectation of privacy" in preventing the disclosure of a report regarding an independent investigation of his alleged sexual harassment of a city employee. Citizens to Recall v. Whitlock, 255 Mont. 517, 844 P.2d 74 (1992).

None of these opinions involved construction of the open records act itself. However, the open records act has been the subject of several attorney general opinions. In 35 A.G. Op. 27 (1973) the attorney general ruled that the list of registered nurses and licensed practical nurses must be issued to members of the public who wish to purchase it. In 36 A.G. Op. 28 (1975) the attorney general ruled that salaries of teachers and administrators of a public school district are subject to inspection by the public.

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B. Other statutory exclusions

There are several separate statutory exemptions that define certain records as falling within the privacy exemption. Mont. Code Ann. § 17-5-1106 prohibits inspection of the names of individuals who own public obligations. § 27-6-703 imposes a confidentiality provision upon records of the Montana medical legal panel. The fact of filing of an attachment is not public until the attachment is actually returned pursuant to § 27-18-111. Adoption records are rendered confidential pursuant to § 40-8-126. Certain criminal justice information is confidential pursuant to §§ 44-5-103 and 44-5-302. Confidential criminal justice information is defined pursuant to include "criminal investigative information," "criminal intelligence information," fingerprints and photographs, and other criminal justice information made confidential by law. The only criminal justice information made specifically confidential by law are youth court "status offense" records. "Public criminal justice information" includes court records and proceedings, convictions, deferred sentences and deferred prosecutions, initial offense reports originated by a criminal justice agency, initial arrest records, bail records, and daily occupancy rosters. Finally, as discussed above, the state insurance commissioner may withhold certain reports done by a national auditing agency of insurance companies operating in the state under § 33-1-412(5).

In Engrav v. Cragun, 236 Mont. 260, 769 P.2d 1224 (1989), the Supreme Court determined that "confidential criminal justice information" as defined by the statute is "beyond the reach of the public sector" and protected under the statute and the Montana Constitutional Right of Privacy.

However, in the same term, the court read the Criminal Justice Information Act language "as authorized by law" (to receive such information) to include an insurance company that was searching for AIDS-infected insured. See Allstate Ins. Co. v. City of Billings, 239 Mont. 321, 780 P.2d 186 (1989). This construction was derived from the right to know provision. Under Allstate, the court will examine, on an ad hoc basis, whether there is a sufficient showing of entitlement to the information.

In Great Falls Tribune Co. Inc. v. Day, 289 Mont. 155, 959 P.2d 508 (1998), the Supreme Court struck down a statute that kept contract proposals confidential during the negotiation process, holding that the state's "(e)conomic advantage is not a privacy interest."

In Worden v. Montana Board of Pardons & Parole, 289 Mont. 459, 962 P.2d 1157 (1998), the Court struck down a statute declaring the records of the Board of Pardons confidential.

All statutory exclusions (adoption records, confidential criminal justice information, etc.) are subject to the balancing test set forth in the Montana Constitution. For example, an adoption record could be made available notwithstanding the statutory confidentiality provision imposed on those documents, if the demands of individual privacy did not clearly outweigh the rights of public disclosure. These decisions must be made on a case-by-case basis. See Lincoln County Comm'n v. Nixon, 292 Mont. 43, 968 P.2d 1141 (1998); Worden v. Montana Board of Pardons & Parole, 289 Mont. 459, 962 P.2d 1157 (1998). The Montana Constitution would override any statutory automatic closure provision.

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C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure

The Montana Supreme Court has recognized that other constitutional rights must sometimes be balanced against the right to know. See Missoulian v. Montana Twenty-first Judicial Dist. Ct., 281 Mont. 285, 933 P.2d 829 (1997) (discussing balance between right to know and right to fair trial).

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D. Protective orders and government agreements to keep records confidential

E. Interaction between federal and state law

1. HIPAA

2. DPPA

3. FERPA

4. Other

F. Segregability requirements

G. Agency obligation to identify basis of redaction or withholding

III. Record categories - open or closed

A. Autopsy and coroners reports

Open unless demands of individual privacy clearly exceed the merits of public disclosure. Clearly the decedent has no privacy interests in the autopsy records, so survivors have a significant burden to establish privacy rights that exceed disclosure.

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B. Administrative enforcement records (e.g., worker safety and health inspections, or accident investigations)

Open unless demands of individual privacy clearly exceed the merits of public disclosure. See Disability Rights Montana v. State 2009 MT 100, 350 Mont. 101, 207 P.3d 1092.

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C. Bank records

Open unless the demands of individual privacy clearly exceed the merits of public disclosure.

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D. Budgets

Open.

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E. Business records, financial data, trade secrets

Open, unless protected by statute, because the privacy exception to the public's right to know does not extend to non-human entities such as corporations, and cannot serve as a basis for protecting trade secrets and other confidential proprietary information of non-human entities. See Great Falls Tribune v. Montana Public Service Comn., 2003 MT 359, 19 Mont. 38, 82 P.3d 876.

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F. Contracts, proposals and bids

Open. See Great Falls Tribune Co. Inc. v. Day, 959 P.2d 508 (1998).

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G. Collective bargaining records

Open.

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H. Economic development records

Open.

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I. Election Records

Open after the canvass has been completed. Mont. Code Ann. § 13-15-301. Unless specifically provided otherwise, all records pertaining to voter registration and elections are public. They must be available for inspection during regular office hours. Mont. Code Ann. § 13-1-109. The canvass of all votes is open to the public. Mont. Code Ann. § 13-15-403.
The original signed voter registration form is available for public inspection unless the voter’s social security number appears on it. 38 Mont. A.G. Op. 65 (1980). Note: It may be possible to obtain a redacted copy of such a form, with the social security number concealed.

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J. Emergency Medical Services records

There are no statutory or decisional rules governing emergency medical services records, but because they generally contain private information, they are likely confidential.

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K. Gun permits

Open unless the demands of individual privacy clearly exceed the merits of public disclosure.

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L. Homeland security and anti-terrorism measures

There are no specific measures dealing with Homeland Security.

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M. Hospital reports

Open unless related to treatment records of patients, in which case they are closed to the public unless the patient provides written authorization for their disclosure. Uniform Health Care Information Act, Mont. Code Ann. §§ 50-16-501 to 50-16-553. Mont. Code Ann. § 50-16-535 authorizes release of health care information by court order in judicial and administrative proceedings. Such information might then be publicly discussed by a court document.

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N. Personnel records

In Montana Human Rights Division v. City of Billings, 199 Mont. 434, 649 P.2d 1283, 1285 (1982), the Supreme Court ruled that certain personnel records could be closed, including matters related to family problems, health problems, employee evaluations, military records, IQ test results, prison records, drug and alcohol problems and information "most individuals would not willingly disclose publicly." 649 P.2d at 1287. See also 35 A.G. Op. 27, and 36 A.G. Op. 28.

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1. Salary

Salaries and names of public employees are not “intimate details” of a “highly personal” nature. Disclosure of this information would not thwart the apparent purpose of the exemption to protect against the highly offensive public scrutiny of private personal details. The precise expenditure of public funds is simply not a private fact. See 38 Mont. A.G. Op. 109 (1980), citing Penokie v. Michigan Technological University, 93 Mich. App. 650, 287 N.W.2d 304 (1980). The Penokie court went on to say that even if the information did infringe on a public employee’s expectation of personal privacy, it would have to be disclosed because “the minor invasion occasioned by disclosure of information which a university employee might hitherto have considered is outweighed by the public’s right to know precisely how its tax dollars are spent.” 38 Mont. A.G. Op. 109 (1980), citing Penokie v. Michigan Technological University, 93 Mich. App. 650, 287 N.W.2d 304 (1980).

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2. Disciplinary records

The public has a clear and unambiguous right to know the information involved in the internal investigation of a public employee for any alleged violation of any policy, law or rule. The Montana Supreme Court has made it very clear that “internal investigations” of law enforcement personnel (and other public employees) must be fully disclosed to the public while the investigation is ongoing, as well as when it concludes. The outcome of the investigation into the alleged wrongdoing is not relevant. See particularly Great Falls Tribune v. Cascade County Sheriff, 238 Mont. 103, 775 P.2d 1267 (1989); Citizens to Recall Whitlock v. Whitlock, 255 Mont. 517, 844 P.2d 74 (1992); Bozeman Daily Chronicle v. City of Bozeman Police Dept., 260 Mont. 218, 859 P.2d 435 (1993). In each of cases, the court found that the individual officer, public employee or elected official has very little expectation of privacy, and the public has a fundamental right to know what public employees are doing. However, in Billings Gazette v. City of Billings, 313 P.3d 129 (2013) the Court declined to apply the public trust doctrine to mid to low level employees.

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3. Applications

No case law or statutory provisions on this issue. However, since an application for employment does not involve disclosure of intimate details which give rise to an expectation of privacy, they should be open.

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4. Personally identifying information

Social security numbers and birth dates are to be redacted from court records.

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5. Expense reports

Open.

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6. Evaluations/performance reviews

7. Complaints filed against employees

8. Other

O. Police records

Police records including accident reports, police blotters, 911 tapes, and initial arrest records are all public criminal justice information. See Barr v. Great Falls Intern. Airport Authority, 326 Mont. 93, 107 P.3d 471 (2005) (holding arrest record from Alaska contained in national computer database was public criminal justice information). For arrest records, also see Barr v. Great Falls Intern. Airport Authority, 326 Mont. 93, 107 P.3d 471 (2005) (holding arrest record from Alaska contained in national computer database was public criminal justice information).

Investigative records, active and closed, computation of criminal histories, confessions, confidential informants, and police techniques are all confidential criminal justice information subject to the balancing test. See also Montana Criminal Justice Information Act of 1979, Mont. Code Ann. §§ 44-5-101 to -515; Engrav v. Cragun, 769 P.2d 1224 (1989); 42 A.G. Op. 119 (1988).

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1. Accident reports

Accident reports and supplemental information filed with them are confidential and not open for viewing by the general public. Mont. Code Ann. § 61-7-114.

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2. Police blotter

The initial incident report is public criminal justice information. Mont. Code Ann. § 44-5-104. An incident should not be “not reported or memorialized” so that the incident doesn’t have to be released to the public. See Mont. Code Ann. § 2-3-212. The initial incident report is the first recorded report that a criminal offense may have occurred, not that a criminal offense actually did occur. The following information must be included in the initial incident report and shown to the public by any officer or employee: 42 Mont. A.G. Op. 119 (1988):
1) factual statement about the event which includes (but is not limited to):
a) The general nature of the charges against the accused;
b) The offense location
c) The name, age and residence of the accused ,
d) The name of the victim, unless the offense charged was a sex crime;
e) The name of a witness, unless the witness has requested confidentiality.
2) report of the seizure of any physical evidence (but not statements made by the accused), limited to a description of the evidence seized.

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3. 911 tapes

911 tapes are initial offense reports and public criminal justice information.

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4. Investigatory records

Investigative records, active and closed, computation of criminal histories, confessions, confidential informants, and police techniques are all confidential criminal justice information subject to the balancing test. See also Montana Criminal Justice Information Act of 1979, Mont. Code Ann. §§ 44-5-101 to -515; Engrav v. Cragun, 769 P.2d 1224 (1989); 42 A.G. Op. 119 (1988).

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5. Arrest records

An initial arrest report is public criminal justice information. Law enforcement must provide the information below as a part of a public initial arrest record. 42 Mont. A.G. Op. 119 (1988). If the information is in electronic form, the law enforcement agency must provide a copy of that information to a requester and cannot charge a fee exceeding the cost of the report. Mont. Code Ann. § 2-6-110. The initial arrest record must include the facts and circumstances of arrest, including but not limited to:
1) day and time of arrest;
2) exact place of arrest;
3) resistance by the person arrested;
4) pursuit of the person arrested; and
5) use of weapons

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6. Compilations of criminal histories

The rules for disseminating criminal history information are generally determined by whether the information is “public” or “confidential.” Criminal history information that falls in the category of “public criminal justice information” must be released to the public. Mont. Code Ann. § 44-5-302.
Criminal history information that is not “public criminal justice information” can be released if:
1) the release is consented to by the person the information is about. Mont. Code Ann. § 44-5-302 (1)(a).
2) the district court determines that the release is necessary.
3) the dissemination is for statistical use, as provided for in Mont. Code Ann. § 44-5-304.
If a person’s conviction record reflects only misdemeanors and deferred prosecutions and the record contains no convictions for the past years, except traffic and fish and game or regulatory convictions, then the conviction record may be closed to the public. 42 Mont. A.G. Op. 119 (1988). The information remains available from the originating criminal justice agency. 40 Mont. A.G. Op. 35 (1984).

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7. Victims

The name of a victim in an initial offense report is public unless the crime is a sex crime. Other victim information cannot be released if “no release” is requested by the victim. If the victim does not request privacy, the information is public. See Mont. Code Ann. § 2-3-201. Victim information under this section is information regarding victim and victim’s family members’ address, telephone number and place of employment.

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8. Confessions

Confessions are public criminal justice information.

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9. Confidential informants

Confidential informants are private criminal justice information and not available for public dissemination.

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10. Police techniques

Confidential informants are private criminal justice information and not available for public dissemination. However, any allegation that an officer violated the public trust in carrying out some technique is not “private” information and may be disclosed. See Great Falls Tribune v. Cascade County Sheriff, 238 Mont. 103, 775 P.2d 1267 (1989); Citizens to Recall Whitlock v. Whitlock, 255 Mont. 517, 844 P.2d 74 (1992); Bozeman Daily Chronicle v. City of Bozeman Police Dept., 260 Mont. 218, 859 P.2d 435 (1993). In each of cases, the court found that the individual officer, public employee or elected official has very little expectation of privacy, and the public has a fundamental right to know what public employees are doing.

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11. Mugshots

Generally, mug shots are regularly disclosed. However a minority of county prosecutors take the position that mug shots are confidential criminal justice information.

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12. Sex offender records

Any person convicted in Montana (or outside of Montana under a similar state or federal statute) under Mont. Code Ann. § 46-23-502(2), must register with the city or county law enforcement within 10 days of entering a county of the state for purposes of taking up either temporary or permanent residence in the county. 47 Mont. A.G. Op. 15 (1998). At a minimum, the name of the offender must be released to the public. 47 Mont. A.G. Op. 15 (1998). Additional information is now available. See the Montana Department of Justice website for more information and a listing of registered sexual offenders in each Montana community. Web site address is: https://app.doj.mt.gov/apps/svow/search.aspx.

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13. Emergency medical services records

Generally private and not accessible unless the demands of individual privacy do not clearly exceed the merits of public disclosure.

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14. Police video (e.g, body camera footage, dashcam videos)

15. Biometric data (e.g., fingerprints)

16. Arrest/search warrants and supporting affidavits

17. Physical evidence

P. Prison, parole and probation reports

All open unless the demands of individual privacy clearly exceed the merits of public disclosure. See Worden, 962 P.2d 1157 (1998). Daily jail logs are open under the Montana Criminal Justice Information Act of 1979, above.

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Q. Professional licensing records

Unless the licensing records involve discipline they are generally open.

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R. Public utility records

All open unless containing trade secrets clearly identified as such. See Great Falls Tribune v. Montana Public Service Commission, 2003 MT 359, 319 Mont. 38, 82 P.3d 876 (disclosure of utility company records).

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S. Real estate appraisals, negotiations

1. Appraisals

Open. See Mayer v. City of Kalispell, 2007 MT 116, 337 Mont. 242, 160 P.3d 869.

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2. Negotiations

Open. See Great Falls Tribune v. Great Falls Public Schools, 255 Mont. 125, 841 P.2d 502 (1992).

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3. Transactions

No statutory or case law on this issue.

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4. Deeds, liens, foreclosures, title history

Open.

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5. Zoning records

Open.

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T. School and university records

In Krakauer v. Commissioner of Higher Education, 384 Mont. 527, 381 P.3d 524 (2016), the Montana Supreme Court muddled the rules governing access to student records. In an attempt to reconcile the Family Educational Rights and Privacy Act's (FERPA) prohibition against unilateral release of personally identifiable information with the Montana Constitutional right to know, the Court held that a student has a “heightened” privacy right for the purposes of the balancing test under Article II, Section 9. Upon remand, the district court, ruled that even under a “heightened” privacy standard the student discipline records of a star quarterback must be disclosed for failure to meet the right-to-know’s “clearly exceed the merits of public disclosure” standard.

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1. Athletic records

Athletic records are generally private unless the demands of privacy do not clearly exceed the merits of public disclosure.

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2. Trustee records

If the trustee commits an offense that constitutes a breach of the public trust, the trustee has a diminished right of privacy and, generally, the records of the investigation and discipline will be disclosed because the demands of privacy will not clearly exceed the merits of disclosure.

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3. Student records

Student records are generally private unless the demands of privacy do not clearly exceed the merits of public disclosure.

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4. School foundation/fundraising/donor records

5. Research material or publications

6. Other

N/A

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U. State guard records

Personnel records of the State Guard are generally private unless the demands of privacy do not clearly exceed the merits of public disclosure.

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V. Tax records

Individual income tax records are generally private unless the demands of privacy do not clearly exceed the merits of public disclosure. Since corporations do not enjoy the right of privacy, corporate tax records are subject to disclosure to the extent permitted by federal law.

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W. Vital Statistics

1. Birth certificates

Immediately upon the filing of a record with the Montana Department of Public Health and Human Services, the fact that a birth occurred may be released to the public. The complete birth record may be released 30 years after the date of birth. Mont. Code Ann. § 50-15-122(5)(a).

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2. Marriage and divorce

Montana clerks of court use a single form as both the application for a marriage license and the marriage license itself.  The marriage license itself is open to the public. However, the information that can be released from the license application is specifically limited to: 1) names, ages and places of birth of the bride and groom; 2) date and place of the marriage; 3) names and addresses of the parents of the bride and groom; 4) name of the officiant; 5) whether the ceremony was civil or religious. Mont. Code Ann. § 50-15-122(5)(b), 48 Mont. A.G. Op. 10 (2000), 48 Mont. A.G. Op. 17 (2000). Anything else on the application is confidential. § 50-15-122(5)(c), Mont. Code Ann. The complete marriage certificate can be released to the public 30 years after the marriage date. Mont. Code Ann. § 50-15-122(5)(d).

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3. Death certificates

Immediately upon the filing of a record with the Montana Department of Public Health and Human Services, the fact that a death occurred may be released to the public. Mont. Code Ann. § 50-15-122(5)(a). A copy of the death certificate must be issued to anyone who requests it. Mont. Code Ann. § 50-15-121(4).

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4. Infectious disease and health epidemics

No statutory or case law on this issue.

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IV. Procedure for obtaining records

A. How to start

Under the public records act, as well as the specific statutes governing confidential documents, the request for a document should be submitted directly to the custodian of the document. The request does not have to be in writing but any refusal can be reduced to affidavit form in the event the requester desires to litigate the issue. Because access to immediate district court resolution is available in Montana, there is no need to reduce the request to writing. However, the attorney general has ruled that governments may require that the request be reduced to writing. 37 A.G. Op. 107 (1976).

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1. Who receives a request?

The custodian of the document.

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2. Does the law cover oral requests?

There is no requirement that a records request be made on writing, so an oral request will suffice. Mont. Code. Ann. § 2-6-1009(1) requires the public entity to provide a written explanation for denial of access to records. The written denial permits the requestor to file an action in district court to compel production of the records. Mont. Code. Ann. § 2-6-1009(2).
In the event the public entity agrees to disclose the documents, arrangements for copying the documents together with payment of any gathering and copying fees are concluded between the requestor and the agency.

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3. Required contents of a written request

4. Can the requester choose a format for receiving records?

5. Availability of expedited processing

B. How long to wait

There are no statutory, regulatory or court set time limits for agency response, and the open records act requires that copies be made available in a timely manner. Mont. Code. Ann. § 2-6-1006(2). There is no case law or statutory law that concludes that delay is recognized as a denial for purposes of appeal, and usually the custodian gives an immediate response with respect to whether the documents will be produced.

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1. Statutory, regulatory or court-set time limits for agency response

There is no case law or statutory law that concludes that delay is recognized as a denial for purposes of appeal, and usually the custodian gives an immediate response with respect to whether the documents will be produced.

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2. Informal telephone inquiry as to status

An informal telephone inquiry is always well-advised.

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3. Is delay recognized as a denial for appeal purposes?

There is no case law or statutory law that concludes that delay is recognized as a denial for purposes of appeal, and usually the custodian gives an immediate response with respect to whether the documents will be produced.

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4. Any other recourse to encourage a response

Threaten to bring court action and recover attorney’s fees.

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C. Administrative appeal

There are no administrative appeal requirements. The individual requesting the document may go directly to district court to obtain relief under the statute and the constitutional provision listed above.

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1. Time limit to file an appeal

2. To whom is an appeal directed?

There are no procedures for appeal of the denial of a request. The only remedy available is top go directly to court. Often times a letter from an attorney setting forth the merits of disclosure and the risk of paying the requestor’s attorney fees will cause the agency to produce the documents.

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3. Fee issues

There is no method for resolving fee issues short of district court action.

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4. Contents of appeal

5. Waiting for a response

There are no administrative appeal requirements.

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6. Subsequent remedies

There are no administrative appeal requirements.

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D. Additional dispute resolution procedures

1. Attorney General

2. Ombudsperson

3. Other

E. Court action

1. Who may sue?

Any "person" has standing to sue in district court to obtain relief under the constitution and Public Records Act, Mont. Const., Art. II, § 9.

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2. Priority

Most courts will respond immediately to open records question and will usually entertain ex parte applications from the requester.

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3. Pro se

The petition for relief should be drafted by an attorney; but there is no reason why a properly drafted petition could not be presented to the court by the requester pro se. Often times a district court will be more willing to talk with a requester pro se than to have an ex-parte conversation with the attorney for the requester. It is advisable, and probably necessary in any case, for the requester to accompany the attorney to the court. It should be noted, however, that most of the “bad” case law in Montana has come from litigation in which the requestor is pro se.

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4. Issues the court will address

In response to the petition, the court may consider whether or not there has been a denial of access; whether the fees for the records are excessive and constitute denial; whether a delay was undue and constitutes denial; and courts can even enter continuing restraining orders directing the governmental body to desist from denying access to the same document or something similar in the future. It is not necessary to file a declaratory judgment action in order to obtain continuing relief. The petition seeking the documents will suffice to permit a pleading for future relief.

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a. Denial

A district court may consider whether there has been a denial of access, and whether the fees for the records are excessive and constitute denial.

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b. Fees for records

A district court may consider whether the fees for the records are excessive and constitute denial.

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c. Delays

A district court may consider whether a delay was undue and constitutes denial.

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d. Patterns for future access (declaratory judgment)

It is not necessary to file a declaratory judgment action in order to obtain continuing relief.

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5. Pleading format

A simple petition for relief setting forth the facts supporting the denial of access, as well as a description of the document requested and the relief sought, is sufficient to bring the matter before the district court. See Board of Trustees v. Board of County Commissioners, 186 Mont. 148, 606 P.2d 1069 (1980).

The special writs of mandamus and prohibition are inappropriate. A simple petition to the court alleging the violations is all that is required. See Goyen v. City of Troy, 276 Mont. 213, 915 P.2d 824 (1996).

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6. Time limit for filing suit

There is no time limit for filing a petition under the Montana Constitution or the open records act to obtain records.

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7. What court?

Any district court has jurisdiction to resolve a petition requesting documents.

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8. Burden of proof

9. Judicial remedies available

10. Litigation expenses

a. Attorney fees

A “prevailing plaintiff” is entitled to recover attorney’s fees. However, whether to award and the amount of fees is discretionary with the courts. When the public body starts the lawsuit by petitioning for declaratory judgment asking the court to decide whether records are public, the requestor is not a “prevailing plaintiff” and cannot recover attorney’s fees, even when the court orders disclosure. Billings High School District v. Billings Gazette, 2006 MT 329, 335 Mont. 94, 149 P.3d 565.

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b. Court and litigation costs

A governmental body does not pay “costs” of a court action, so the only cost recovery occurs when the requestor prevails. In such case the requestor usually always recovers costs.

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11. Fines

12. Other penalties

13. Settlement, pros and cons

F. Appealing initial court decisions

1. Appeal routes

Appeal of a district court decision is to the Montana Supreme Court.

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2. Time limits for filing appeals

The time for filing a notice of appeal from a district court decision denying access to state government documents is sixty days. All other district court decisions must be appealed within thirty days of notice of entry of judgment denying access. Rule 5(a)(1), M. R. App. P.

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3. Contact of interested amici

Most trial courts will readily permit amici participation in constitutional issues and such participation should probably begin at the district court level, if possible. If not, the Montana Supreme Court is fairly open to receiving amicus curiae briefs on similar constitutional issues.

The Reporters Committee for Freedom of the Press often files amicus briefs in cases involving significant media law issues before a state's highest court. For example, the Reporter’s Committee was one of the amici in Krakauer v. Commissioner of Higher Education, 384 Mont. 527, 381 P.3d 524 (2016).

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G. Addressing government suits against disclosure

Open Meetings

I. Statute - basic application

As indicated in the preface, Montana has a constitutional provision guaranteeing all persons the right to observe the deliberations of public bodies. Montana's "sunshine" statute, initially adopted in 1963, was amended in 1975 to conform to the new constitutional provision. Mont. Code Ann. §§ 2-3-201 to 221.
Taken together, the Montana constitutional and statutory provisions guarantee every citizen the right to observe the deliberations of all public bodies or agencies of state government, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.

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A. Who may attend?

Article II, § 9 of the Montana Constitution guarantees any person the right to observe the deliberations of public bodies and agencies in Montana. "Person" includes citizen, alien, resident, nonresident, media person, or member of the public. Krakauer v. Commissioner of Higher Education, 381 P.3d 524 (2016).

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B. What governments are subject to the law?

1. State

Both the state Constitution and the implementing statute guarantee access to any state, county, local, or municipal governmental body.

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2. County

Both the state Constitution and the implementing statute guarantee access to any state, county, local, or municipal governmental body.

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3. Local or municipal

Both the state Constitution and the implementing statute guarantee access to any state, county, local, or municipal governmental body.

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C. What bodies are covered by the law?

1. Executive branch agencies

The constitutional provision guarantees access to "the deliberations of all public bodies or agencies of state government and its subdivisions." Mont. Const., Art. II, § 9 (1972). When any executive branch official is functioning in a deliberative sense, that is, conducting or participating in a meeting by which issues within that agency's jurisdiction are discussed, the deliberations must be open. The deliberations must be open regardless of whether the agency or body is merely discussing or actually taking action on an issue. Hearings are also covered by the Open Meetings Law. Mont. Code Ann. § 2-3-202.

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a. What officials are covered?

The Supreme Court has ruled that “agency” does not include individual employees. A television station argued it had the right to have a reporter cover a meeting of the Billings city engineer, the public works director, and a private construction company. The court determined Art. II, § 9 of the Constitution limits the right to know to agencies, so journalists are not entitled to attend meetings between an individual public employee and a private party. SJL of Mont. v. City of Billings, 263 Mont. 142, 867 P.2d 1084 (1993). However, in another case, a representative of the Commissioner of Higher Education conducting meetings around the state with representatives of each of the branches of the University system was subject to the open meetings law. Associated Press v. Crofts, 2004 MT 120, 321 Mont. 193, 89 P.3d 921.

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b. Are certain executive functions covered?

Only when the executive makes decisions through a body or collection of other decision makers.

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c. Are only certain agencies subject to the act?

No. All agencies are subject to the Act.

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2. Legislative bodies

Article V, § 10(3) of the Montana Constitution declares: "The sessions of the legislature and the committee of the whole, all committee meetings, and all hearings shall be open to the public." Indeed, there is no "privacy exception" to this rather broad constitutional provision. Arguably, then, legislative deliberative bodies may not, in any circumstance, close their meetings.

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3. Courts

Although the constitutional provision does not specifically exempt courts from its open deliberations requirements, the Constitutional Convention debates suggest that Article II, § 9 does not apply to the judicial branch. Jury deliberations are considered exempt, and the Montana Supreme Court has rejected suggestions that conferences and deliberations of the Court, or even its advisory committees, should be open. See Goldstein v. Commission on Practice, 297 Mont. 493, 995 P.2d 923 (2000); Order In Re Selection of a Fifth Member to the Montana Apportionment Commission (August 3, 1999).

Mont. Code Ann. §§ 3-1-312 and 313 require "the sittings of every court" to be public "except [i]n an action for dissolution of marriage, criminal conversation or seduction" in which case the public may be excluded. Furthermore, the Montana Supreme Court has embraced the ABA standards and requires a defendant in a criminal proceeding to show a clear and present danger of prejudice to the right to a fair trial before closing a criminal proceeding and requires the court to exhaust all alternatives to closure before closing, even upon such a showing. State ex. rel Smith v. District Court, 201 Mont. 376, 654 P.2d 982 (1982).

In State ex rel Tribune v. District Court, 238 Mont 310, 777 P.2d 345 (1989), the court held that the public has a right to access probation revocation proceedings. However, the court gave fairly wide latitude to trial judges to close such hearings to protect certain privacy interests.

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4. Nongovernmental bodies receiving public funds or benefits

Nongovernmental bodies receiving public funds or benefits are covered under Mont. Code Ann. § 2-3-203(1), which requires that all meetings of public bodies "or organizations or agencies supported in whole or in part by public funds or expending funds must be open to the public."

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5. Nongovernmental groups whose members include governmental officials

The operative language of Montana's "sunshine" statute turns upon "funding." Nongovernmental groups whose members include governmental officials are included under Mont. Code Ann. § 2-3-203(1), if any public funds support the entity. Thus, payment of salary or per diem expenses for the governmental officials renders the body liable to follow the open meetings law. (See ¶¶ 7-9.)

The public entity must be a constituent body. Ad Hoc meetings of various state officials to discuss a matter of public concern are not "public bodies" within the meaning of the Constitution and statute. S.J.L. of Montana Associates v. City of Billings, 263 Mont. 142, 867 P.2d 1084 (1993).

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6. Multi-state or regional bodies

Multistate or regional bodies that receive public funds are subject to the law. See Mont. Code Ann § 2-3-203(1).

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7. Advisory boards and commissions, quasi-governmental entities

Advisory boards and commissions or quasi-governmental entities, or any other body appointed or elected that receives public funds is subject to the law. See Mont. Code Ann. § 2-3-203(1). See also Bryan v. Yellowstone Co. Elem. Sch. Dist. No. 2, 312 Mont. 257, 60 P.3d 381 (2002) (Montana Supreme Court held that a committee created by a school district to research a proposition and submit a recommendation to the school board was a public or governmental body subject to the right to know provision of the Montana Constitution); but see Goldstein v. Commission on Practice of Supreme Court, 297 Mont. 493, 995 P.2d 923 (2000), the Montana Supreme Court held that confidentiality provisions of Rules on Lawyer Disciplinary Enforcement did not violate an attorneys' right to know or right to participate in government decisions by excluding attorney from the deliberations of Commission on Practice following the filing of formal complaint and held that Commission was not subject to open meeting requirements and sat in only advisory capacity to Supreme Court.

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8. Other bodies to which governmental or public functions are delegated

Any government body that receives public funds is subject to the law. See Mont. Code Ann. § 2-3-203(1).

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9. Appointed as well as elected bodies

Any government body appointed or elected that receives public funds is subject to the law. See Mont. Code Ann. § 2-3-203(1).

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D. What constitutes a meeting subject to the law

1. Number that must be present

a. Must a minimum number be present to constitute a "meeting"?

In order for a "meeting" to occur within the meaning of the Montana open meetings law a quorum must be present. Mont. Code Ann. § 2-3-202. However, a public body may not appoint any committee or subcommittee for the purpose of conducting business that is within the jurisdiction of the agency in order to avoid the constraints of the open meetings law. See Mont. Code Ann. § 2-3-203(5).

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b. What effect does absence of a quorum have?

If there is no quorum then the “meeting” is not subject to the open meetings law unless the agency is clearly intending to avoid scrutiny under the act.

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2. Nature of business subject to the law

a. "Information gathering" and "fact-finding" sessions

Except for privacy rights, the Montana open meetings law and Constitution do not differentiate on the basis of subject matter to be discussed in determining whether a meeting shall be open. Indeed, any time the body meets to hear, discuss, or act on any matter, the meeting is deemed to be open regardless of the matter to be discussed, Mont. Code Ann. § 2-3-202, except for certain specific exemptions. "Executive Sessions," for example, are subject to the law. See Goyen v. City of Troy, 276 Mont. 213, 915 P.2d 824 (1996).

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b. Deliberation toward decisions

Except for privacy rights, the Montana open meetings law and Constitution do not differentiate on the basis of subject matter to be discussed in determining whether a meeting shall be open.

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3. Electronic meetings

Both conference calls and e-mail messages are open to the public and subject to the requirements of the right-to-know laws.

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a. Conference calls and video/Internet conferencing

The convening of a quorum of the constituent membership of a public agency or association to hear, discuss, or act upon a matter over which the agency has control constitutes a meeting. A meeting can be either in-person or electronic, as in a conference call. Mont. Code Ann. § 2-3-202.

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b. E-mail

Since electronic discussion during the convening of a quorum of a public body constitutes a meeting, it is prohibited unless the public has contemporaneous access to the e-mail message.

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c. Text messages

Since electronic discussion during the convening of a quorum of a public body constitutes a meeting, it is prohibited unless the public has contemporaneous access to the texting.

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d. Instant messaging

Since electronic discussion during the convening of a quorum of a public body constitutes a meeting, it is prohibited unless the public has contemporaneous access to the instant messaging.

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e. Social media and online discussion boards

Since electronic discussion during the convening of a quorum of a public body constitutes a meeting, it is prohibited unless the public has contemporaneous access to the on line discussion.

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E. Categories of meetings subject to the law

1. Regular meetings

a. Definition

There is no statutory distinction between "regular" or "special" meetings. A meeting takes place whenever there is a gathering of a quorum of the members of a public body. Mont. Code Ann. § 2-3-202.

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b. Notice

There is no notice provision contained in the Montana open meetings law. However, several district courts, in opinions not found among the national reporters, have issued rulings requiring as a precondition and part of the Montana open meetings law that notice of meetings be given sufficiently in advance of the meeting to permit the public to attend, and to publish an agenda which would generally apprise the public of the matters to be discussed during the meeting. See, e.g., Wilson, et al. v. Trustees of School District No. 3, No. 42522, First Judicial District (1978); Board of Trustees v. Board of County Commissioners, 186 Mont. 148, 606 P.2d 1069 (1980). Failure to comply with this notice requirement subjects any decision made in violation of this requirement to voidability under Mont. Code Ann. § 2-3-213. This latter section authorizes district courts to void any decision of any public body made in violation of the Montana open meetings law.

When a closed meeting is contemplated for reasons of privacy, it may only be closed when the public body has notified the person about whom the privacy pertained and given that person the opportunity to waive the right of privacy. See Goyen v. City of Troy, 276 Mont. 213, 915 P.2d 824 (1996).

No specific time limit for giving notice, except that County commissioners must give 48-hour notice before changing the time, manner, place or date of a regular meeting, or hold a special meeting. § 7-5-2122, M.C.A. Board of Trustees, Huntley Project School District 24 v. Board of County Commissioners, 186 Mont. 148, 606 P.2d 1069 (1980). Except in an emergency, special meetings of school boards require 48-hour written notice to the trustees. Mont. Code Ann. § 20-3-322(3).

Providing this notice to trustees does not release the district from its duty to provide adequate public notice. Sonstelie v. Bd. of Trustees, 202 Mont. 414, 658 P.2d 413 (1983).

Notice provisions give the public the right to know all the facts in possession of an agency and to have reasonable opportunity to review those facts before a hearing. This is to prevent what should be genuine interchange from being reduced to mere formality. Bryan v. Yellowstone County Elementary School District No. 2, 312 Mont. 257, 60 P.3d 381 (2002). A clear abuse of discretion took place when a district court failed to nullify actions of a county commission that disregarded statutes regulating the place, time, and voting procedure of open meetings. Board of Trustees, Huntley Project School District 24 v. Board of County Commissioners, 186 Mont. 148, 606 P.2d 1069 (1980).  There is no specific statutory or case law governing where the notice is to be posted.

An agency may not take action on any matter discussed unless specific notice of that matter is included on an agenda and public comment has been allowed on that matter. § 2-3-103(1), Mont. Code Ann.  The agenda for a meeting must include an item allowing public comment on any public matter that is not on the agenda and that is within the jurisdiction of the agency. 2-3-103(1), Mont. Code Ann.

Notice provisions give the public the right to know all the facts in possession of an agency and to have reasonable opportunity to review those facts before a hearing. This is to prevent what should be genuine interchange from being reduced to mere formality. Bryan v. Yellowstone County Elementary School District No. 2, 312 Mont. 257, 60 P.3d 381 (2002).

  Any decisions made during the course of an inadequately noticed meeting subject those decisions to being voided by a district court. Bryan v. Yellowstone County Elementary School District No. 2, 312 Mont. 257, 60 P.3d 381 (2002).

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c. Minutes

Mont. Code Ann. § 2-3-212 requires that minutes be kept and made available for public inspection. Such minutes must include the date, the time, the place of the meeting, a list of the individual members in attendance, the substance of all matters discussed, and a record of any votes taken.

Anybody subject to Montana’s open-meeting laws must keep minutes of its meetings and make them available for public inspection. Mont. Code Ann. § 2-3-212. The minutes must include: 1) date, time and place of the meeting; 2) list of the members in attendance; 3) substance of all matters, discussed; and 4) at the request of any member, a record by individual members of any votes taken. Mont. Code Ann. § 2-3-212. Board of Trustees, Huntley Project School District 24 v. Board of County Commissioners, 186 Mont. 148, 606 P.2d 1069 (1980).

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2. Special or emergency meetings

There is no specific requirement related to notice of special or emergency meetings, and there is no Montana Supreme Court decision on that issue.

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a. Definition

There is no specific requirement related to notice of special or emergency meetings, and there is no Montana Supreme Court decision on that issue.

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b. Notice requirements

There is no specific requirement related to notice of special or emergency meetings, and there is no Montana Supreme Court decision on that issue.

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c. Minutes

Minutes of special or emergency meetings must be kept and made available to the public. Mont. Code Ann. § 2-3-212.

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3. Closed meetings or executive sessions

The Montana open meetings law requires the keeping of minutes for meetings that are closed, including the same information as is recorded for an open meeting. Mont. Code Ann. § 2-3-212(4). These minutes are confidential but may be opened for public inspection upon a court order.  There is no penalty or remedy for failure to provide notice of any closed meeting; however, before closing a meeting the presiding officer of the governmental body must balance the demands of individual privacy against the merits of public disclosure to determine that closure is warranted.  If the determination is in error, any decisions made in the illegally closed meeting may be voided and the entity may be ordered to pay attorney fees.

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a. Definition

Generally, the notice must have sufficient information to permit the observer to know why the meeting is closed.

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b. Notice requirements

Generally, the notice must have sufficient information to permit the observer to know why the meeting is closed.

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c. Minutes

Generally, the reasons justifying the closed meeting must be reflected in the minutes.

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d. Requirement to meet in public before closing meeting

All decisions made after a closed meeting must be made in open session.

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e. Requirement to state statutory authority for closing meetings before closure

The chair of the body must disclose the reasons for closing the meeting at the outset and give citizens in attendance the right to state objections.

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f. Tape recording requirements

There are no statutory or case law decisions requiring tape recordings of closed sessions.

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F. Recording/broadcast of meetings

1. Sound recordings allowed

Mont. Code Ann. § 2-3-211, guarantees attendees the right to take photographs, televise, or record meetings so long as these activities do not interfere with the conduct of the meeting. The judicial branch follows the ABA standards on recording or televising court proceedings. Generally, the district courts, both federal and state are vested with discretion to regulate the recording of any judicial proceeding to guarantee the decorum of the court.

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2. Photographic recordings allowed

Mont. Code Ann. § 2-3-211, guarantees attendees the right to take photographs, televise, or record meetings so long as these activities do not interfere with the conduct of the meeting.

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G. Access to meeting materials, reports and agendas

The Montana Constitutional “right to participate” in Article II, Section 8, requires the public body to provide access to all materials considered in connection with any decision made by the body. Bryan v. Yellowstone Co. Elem. Sch. Dist. No. 2, 60 P.3d 381 (2002).

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H. Are there sanctions for noncompliance?

There is no provision for sanctions, however, a plaintiff who prevails in an action brought in district court to enforce his rights under Article II, §§ 8 and 9, of the Montana Constitution may be awarded his costs and reasonable attorney’s fees. See Mont. Code Ann. § 2-3-221. Further, any action taken in a meeting in violation of Article II, § 9, can be voided. Mont. Code Ann. § 2-3-114. See Bryan v. Yellowstone Co. Elem. Sch. Dist. No. 2, 312 Mont. 257, 60 P.3d 381 (2002) (holding school board decision in violation of Article II, § 9, null and void.

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A. Exemptions in the open meetings statute

1. Character of exemptions

The constitutional privacy exception is the only general exemption and is discretionary subject to the same three-part balancing test used for determining whether records may be kept confidential.

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2. Description of each exemption

Prior to 1991, the Montana open meetings law permitted the closing of a meeting to discuss collective bargaining or litigation strategy "when an open meeting would have a detrimental effect on the bargaining or litigating position of the public agency." Mont. Code Ann. § 2-3-203(4). In two successive cases in 1991 and 1992, the Montana Supreme Court struck down the litigation exception, at least insofar as the litigation under discussion is between two governmental entities, and struck down the collective bargaining strategy exception in its entirety. Great Falls Tribune Co. Inc. v. Great Falls Pub. Sch., 255 Mont. 125, 841 P.2d 502, (1992); Associated Press v. Board of Pub. Educ., 246 Mont. 386, 804 P.2d 376 (1991). The statute has been amended to conform to these decisions, although the continuing viability of what remains of the litigation exception is open to question.

The privacy "exemption" analysis is made following the same three-part test used for determining whether records may be kept confidential. The state supreme court has imposed the following judicial guidelines by which public access to records and meetings may be denied under a constitutional balancing test:

1. Did the person involved have an actual or "subjective" expectation of privacy; and, if so

2. Is that expectation "reasonable"?

3. If the answers to paragraphs 1 and 2 are affirmative, then the documents containing private information may be withheld if the demands of individual privacy clearly outweigh the merits of public disclosure. If the answer to either 1 or 2 is negative, then the documents are available for public inspection.

See Missoulian v. Board of Regents, 207 Mont. 513, 675 P.2d 962 (1984); Flesch v. Board of Trustees, 241 Mont.158, 786 P.2d 4 (1990).

A public body may not close a meeting to discuss matters of individual privacy without first notifying the person who holds the privacy rights. Failure to do so will constitute a basis for voiding a decision made in that session.

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B. Any other statutory requirements for closed or open meetings

A public body may close a meeting “when an open meeting would have a detrimental effect on the litigating position of the public agency.” Mont. Code Ann. § 2-3-203(4). A lawsuit must actually be filed before this statutory protection is provided. The mere threat of litigation does not trigger the right to close a meeting. However, a meeting cannot be closed to discuss litigation in which only public agencies are involved. Associated Press v. Bd. of Pub. Educ., 246 Mont. 386, 804 P.2d 376 (1991).

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C. Court mandated opening, closing

No statutory or case law governing this issue.

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III. Meeting categories - open or closed

Excluding the privacy exception, there are no rules, judicially or legislatively imposed, that exempt certain discussions from the Montana open meetings law. Rather, the court will examine on a case-by-case basis the necessity for closing the meeting and the presiding officer's determination that the demand of individual privacy clearly exceeds the merits of public disclosure. The Montana Supreme Court, in that regard, has determined that the Montana Board of Regents may close its meeting when discussing matters related to the qualifications of individual applicants for presidency of any of the branches of the Montana University System. Missoulian v. Board of Regents, 207 Mont. 513, 675 P.2d 962 (1984). In construing the "individual privacy" provision of the Montana Constitution, the Montana Supreme Court has refused to extend the privacy protection to corporations. See Great Falls Tribune v. Mont. Pub. Serv. Commn., 319 Mont. 38, 82 P.3d 876 (2003).

In Associated Press v. Crofts, 321 Mont. 193, 89 P.3d 971 (2004), media organizations brought an action against the Commissioner of Higher Education, seeking a declaration that the meetings between the Commissioner and the state university policy committee, which was made up of senior university employees, were subject to open meetings laws and enjoining Commissioner from excluding the public from meetings. The Montana Supreme Court held that the meetings between the Commissioner and the university policy committee were subject to open meetings laws, and that the media organizations were not entitled to attorney’s fees.

In Goldstein v. Commission on Practice of Supreme Court, 297 Mont. 493, 995 P.2d 923 (2000), the Montana Supreme Court held that confidentiality provisions of Rules on Lawyer Disciplinary Enforcement did not violate an attorneys' right to know or right to participate in government decisions by excluding attorney from the deliberations of Commission on Practice following the filing of formal complaint and held that Commission was not subject to open meeting requirements and sat in only advisory capacity to Supreme Court.

A woman who would testify in a personnel disciplinary proceeding that she had sex with the police chief in or near the patrol car while the chief was on duty had a constitutionally protected right of privacy which exceeded the merits of public disclosure, and the meeting could be closed. Goyen v. City of Troy, 276 Mont. 213, 915 P.2d 824 (1996).

The Montana Supreme Court has not yet addressed extension of the Montana open meetings law to hospital board discussions of patients, parole board meetings, or any other deliberation involving questions related to individual privacy. However, given the predilection of the court to protect individual privacy, any determination to close a meeting based upon privacy considerations will not likely be overturned.

Negotiations and collective bargaining of public employees. In Motta v. Philipsburg School Bd. Trustees, 323 Mont. 72, 98 P.3d 673 (2004), a citizen brought an action against a school district, alleging violation of open meeting laws. The district court granted the citizen's motion for partial summary judgment, but refused to void the collective bargaining agreement reached at the school board meeting, and did not award the citizen his costs. On appeal, the Montana Supreme Court held that the trial court did not abuse its discretion when it refused to void the agreement reached at the meeting held in violation of open meeting laws; remand was necessary so that district court could determine whether to award citizen his costs; and citizen prevailed, even though he did not receive all of the remedy he desired, and thus it was up to discretion of district court to determine whether to award citizen his costs.

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A. Adjudications by administrative bodies

1. Deliberations closed, but not fact-finding

An entity may not close a meeting for this reason.

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2. Only certain adjudications closed, i.e. under certain statutes

N/A

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B. Budget sessions

Not a basis for closing a meeting.

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C. Business and industry relations

Not a basis for closing a meeting.

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D. Federal programs

Not a basis for closing a meeting.

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E. Financial data of public bodies

Not a basis for closing a meeting.

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F. Financial data, trade secrets, or proprietary data of private corporations and individuals

A meeting may be closed if necessary to protect trade secrets of a corporation under certain limited circumstances. Great Falls Tribune v. Montana Public Service Commission, 2003 MT 359, 319 Mont. 38, 82 P.3d 876 (disclosure of utility company records).

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G. Gifts, trusts and honorary degrees

Not a basis for closing a meeting.

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H. Grand jury testimony by public employees

Not a basis for closing a meeting.

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I. Licensing examinations

Not a basis for closing a meeting.

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J. Litigation, pending litigation or other attorney-client privileges

A public body may close a meeting “when an open meeting would have a detrimental effect on the litigating position of the public agency.” Mont. Code Ann. § 2-3-203(4). A lawsuit must actually be filed before this statutory protection is provided. The mere threat of litigation does not trigger the right to close a meeting. However, a meeting cannot be closed to discuss litigation in which only public agencies are involved. Associated Press v. Bd. of Pub. Educ., 246 Mont. 386, 804 P.2d 376 (1991).

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K. Negotiations and collective bargaining of public employees

Not a basis for closing a meeting.

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1. Any sessions regarding collective bargaining

Not a basis for closing a meeting.

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2. Only those between the public employees and the public body

Not a basis for closing a meeting.

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L. Parole board meetings, or meetings involving parole board decisions

Open, according to the Montana Constitution, only an individual right to privacy that passes the test trumps the public’s right to know. Discretionary disclosure based on “best interests” or “desirable or helpful” fail to withstand constitutional scrutiny. Wordan v. Mt. Board of Pardons and Parole, 289 Mont. 459, 962 P.2d 1157 (1998), Bozeman Daily Chronicle v. City of Bozeman Police Dept., 260 Mont. 218, 859 P.2d 435 (1993).

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M. Patients, discussions on individual patients

Closed, unless the demands of privacy do not clearly exceed the merits of disclosure.

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N. Personnel matters

1. Interviews for public employment

Employment evaluations may be closed.. Missoulian v. Board of Regents, 207 Mont. 513, 675 P.2d 962 (1984), Montana Human Rights Division v. City of Billings, 199 Mont. 434, 649 P.2d 1283 (1982).

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2. Disciplinary matters, performance or ethics of public employees

Generally, disciplinary matters may be discussed in private unless the employee waives the right of privacy. However, if the offense charged constitutes a breach of the employee’s fiduciary duties, there is no expectation of privacy and the meeting should be open. The public has a clear and unambiguous right to know the information involved in the internal investigation of a public employee for any alleged violation of any policy, law or rule. The Montana Supreme Court has made it very clear that “internal investigations” of law enforcement personnel (and other public employees) must be fully disclosed to the public while the investigation is ongoing, as well as when it concludes. The outcome of the investigation into the alleged wrongdoing is not relevant. See particularly Great Falls Tribune v. Cascade County Sheriff, 238 Mont. 103, 775 P.2d 1267 (1989); Citizens to Recall Whitlock v. Whitlock, 255 Mont. 517, 844 P.2d 74 (1992); Bozeman Daily Chronicle v. City of Bozeman Police Dept., 260 Mont. 218, 859 P.2d 435 (1993). In each of cases, the court found that the individual officer, public employee or elected official has very little expectation of privacy, and the public has a fundamental right to know what public employees are doing.

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3. Dismissal, considering dismissal of public employees

Generally, disciplinary matters may be discussed in private unless the employee waives the right of privacy. However, if the offense charged constitutes a breach of the employee’s fiduciary duties, there is no expectation of privacy and the meeting should be open.

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O. Real estate negotiations

No right of privacy is involved in real estate negotiations, so the meetings must be open even if the open session may cause the entity some economic disadvantage.

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P. Security, national and/or state, of buildings, personnel or other

No right of privacy is involved in real estate negotiations, so the meetings must be open even if the open session may cause the entity some economic disadvantage.

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Q. Students, discussions on individual students

Generally private.

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IV. Procedure for asserting right of access

A. When to challenge

The open meetings law and the constitutional provision may be asserted by petition either requesting voidability under Mont. Code Ann. § 2-3-213, or for general injunctive relief. There is no time limit on challenging a closed meeting when the petitioner seeks injunctive or prospective relief. However, if the petitioner intends to have the decision made in the closed meeting voided, the action must be brought within thirty days of the decision. Id.

Since most closure decisions turn on questions of individual privacy, the "legs" of the government's legal basis for a closed session may be summarily removed by contacting the individual about whom the discussion will pertain. Usually, that person has no objection to an open meeting and the privacy consideration is removed. This method of obtaining open meetings is particularly successful when the body indicates an intention, in advance of the meeting, to close the meeting to discuss "personnel" matters.

Moreover, in most instances, the chairman is not a lawyer or is relatively unschooled about open meetings law. A call from the media lawyer to the governmental body's lawyer will usually produce compliance with the law short of going to court.

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1. Does the law provide expedited procedure for reviewing request to attend upcoming meetings?

No.

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2. When barred from attending

No.

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3. To set aside decision

A decision made in an illegally closed session can be set aside by a district court.

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4. For ruling on future meetings

Prospective relief is not favored by the courts because whether a matter is private must always be made on a case-by-case basis. See Havre Daily News v. City of Havre, 2006 MT 215, 333 Mont. 331, 143 P.3d 864.

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5. Other

N/A.

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B. How to start

The petition for relief may be styled in any way that alleges violation of the Montana Constitutional provision and/or Montana open meetings law. It requires no administrative remedy, so there is no exhaustion issue. The matter may be started directly in district court and most courts will expedite resolution of open meetings requests.

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1. Where to ask for ruling

State District Court.

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a. Administrative forum

There is no administrative forum available to test whether a meeting has been properly closed.

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b. State attorney general

None.

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c. Court

Yes.

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2. Applicable time limits

Must be filed within 30 days of the challenged decision.

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3. Contents of request for ruling

Regular pleading standards apply under Montana Rules of Civil Procedure

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4. How long should you wait for a response

Regular pleading standards apply under Montana Rules of Civil Procedure.

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5. Are subsequent or concurrent measures (formal or informal) available?

No.

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C. Court review of administrative decision

1. Who may sue?

Any "person" within the meaning of the Montana Constitution may bring this petition to enforce constitutional rights.

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2. Will the court give priority to the pleading?

The court virtually always gives priority to the pleading.

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3. Pro se possibility, advisability

The court will permit pro se application. However, since the efficacy of quick resolution of an open meetings question may depend upon appropriate pleading and proof, it is not advisable for a person to attempt to gain access to a public body through pro se court action.

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4. What issues will the court address?

Courts will issue injunctions requiring meetings to be opened or enjoining the presiding officer from closing a meeting in violation of the statute. The court may also void the decision or order prospective relief requiring future meetings to be open.

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a. Open the meeting

Courts will issue injunctions requiring meetings to be opened or enjoining the presiding officer from closing a meeting in violation of the statute. The court may also void the decision or order prospective relief requiring future meetings to be open.

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b. Invalidate the decision

Courts will issue injunctions requiring meetings to be opened or enjoining the presiding officer from closing a meeting in violation of the statute. The court may also void the decision or order prospective relief requiring future meetings to be open.

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c. Order future meetings open

Prospective relief is not favored by the courts because whether a matter is private must always be made on a case-by-case basis. See Havre Daily News v. City of Havre, 2006 MT 215, 333 Mont. 331, 143 P.3d 864.

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5. Pleading format

There is no particular pleading format and the court suggests that a petition rather than a formal complaint under the Montana Rules of Civil Procedure may be filed.

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6. Time limit for filing suit

There is no time limit on challenging a closed meeting when the petitioner seeks injunctive or prospective relief. However, if the petitioner intends to have the decision made in the closed meeting voided, that action must be brought within thirty days of the decision. Mont. Code Ann. § 2-3-213.

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7. What court?

This action should be filed in the state district courts.

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8. Judicial remedies available

Injunctive or prospective relief is available. A decision made in an illegally closed meeting may be voided.

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9. Availability of court costs and attorney's fees

Pursuant to Mont. Code Ann. § 2-3-221, a petitioner who prevails in an action to enforce constitutional access rights (open meetings or open records rights) may be awarded costs and reasonable attorney’s fees. Courts routinely award such fees and costs particularly when the decision to close the meeting is arbitrary or made without regard to the obvious provisions of the Montana open meetings law and the Constitution.

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10. Fines

Costs and reasonable attorney’s fees only.

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11. Other penalties

N/A.

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D. Appealing initial court decisions

1. Appeal routes

There is only one appeal, and that is to the Montana Supreme Court.

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2. Time limits for filing appeals

That appeal must be filed within thirty days of notice of entry of judgment from the district court with respect to all public bodies except the State of Montana. A district court order in which the State of Montana is a defendant or respondent may be appealed within sixty days following notice of entry of judgment.

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3. Contact of interested amici

The State of Montana is sufficiently small in population that it is relatively easy to obtain assistance from other interested public or media groups, and the courts readily accept participation from those various groups. The Montana Newspaper Association, National Reporters Committee, National Student’s Rights organizations, Society of Professional Journalists, League of Women Voters, Montana Press Women, and various daily newspapers routinely participate in media litigation as amici.

The Reporters Committee for Freedom of the Press often files amicus briefs in cases involving significant media law issues before a state's highest court.

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V. Asserting a right to comment

The Montana Constitution declares:

The public has a right to expect governmental agencies to afford such reasonable opportunity for citizen participation in the operation of the agencies prior to the final decision as may be provided by law.

Mont. Const., Art. II, § 8 (1972). The Montana Supreme Court has rarely construed this provision, but it has indicated that the language "as may be provided by law" means that the Constitution does not create any rights of participation beyond what is created by statute. See Kadillak v. Anaconda Co., 184 Mont. 127, 602 P.2d 147 (1979).

The legislature implemented the constitutional intent by enacting Mont. Code Ann. §§ 2-3-101 to 114. These provisions provide general guidelines for public participation in governmental decisions.

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A. Is there a right to participate in public meetings?

Section 2-3-103, Mont. Code Ann., requires all state agencies to develop procedures for encouraging public participation in all decisions "of significant interest to the public." The procedures must include providing adequate notice. Local governments are more specifically required to open all meetings to the public and allow reasonable participation before reaching a decision, and "reasonable opportunity to submit data, views, or argument" regarding any decision of significant interest to the public. Mont. Code Ann. § 7-1-4142.

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B. Must a commenter give notice of intentions to comment?

Public bodies do not generally require commenters to give notice of their intentions, but there are no cases addressing whether such a requirement would be permissible.

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C. Can a public body limit comment?

Public bodies in Montana sometimes limit comments on an ad hoc basis depending on the number of people who wish to speak on an issue. There are no cases addressing the reasonableness of such limitations.

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D. How can a participant assert rights to comment?

If the right to participate is denied, an action can be brought in district court to set aside the agency's decision. The action must be brought within 30 days. Mont. Code Ann. § 2-3-114. A court may also award prospective relief ordering the agency to accept public comments.

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E. Are there sanctions for unapproved comment?

Some public bodies have attempted to impose sanctions for "out of order" comments, including barring the speaker from future participation. The Montana Supreme Court has not addressed whether such sanctions are permissible.

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Appendix