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Earlier this year, Mary Lou Pilati wanted to see documents related to a real estate sale by the town of Fromberg, outside Billings.

Questioning the sale price of the property, Pilati requested from the town copies of any proposed purchase contracts, bid letters, closing statements and other pertinent records. She made the request through a local citizens group, the.fromberg.advocacy.com.

In Montana, state statute requires government agencies to respond to such records requests "in a timely manner."

Five months later, Pilati believes all materials have finally landed in her mailbox, but getting them took five letters from the advocacy group to the town and a demand letter from a lawyer.

"They basically stonewalled us. But I'm like a bulldog. I never let go," said Pilati, who has lived in Fromberg since 2003.

On its website, the advocacy group notes it wants to "spark honest, heartfelt discussions" and return Fromberg to "her former 'Glory Days.'" At one point, Pilati thought the group's only recourse would be to file a lawsuit, but going to court was a nonstarter.

"I don't have a stable of attorneys, and I don't have deep pockets," Pilati said.

The Montana Constitution protects the public's right to know the workings of government, and members of the public and media regularly seek to exercise that right. For example:

• In Missoula, members of the media and at least one council member have made requests to see legal bills the City of Missoula paid in its water company condemnation case, but the city has withheld documents to date;

• At different agencies, citizens wanting to observe the deliberation of government officials have argued to open meetings; and

• Environmental watchdogs have asked state agencies for records on everything from water quality to private remediation spending related to the Berkeley Pit.

At times, enforcing the right to know means not only choosing to go to court, but having money to pay for the fight. Parties willing to enter into litigation may ask courts for attorneys' fees, but judges don't necessarily award them.

Now, a high-profile legal battle in Montana will put the matter of attorneys' fees to the Montana Supreme Court — after a pair of different rulings on fees.

Lawyer Mike Meloy has represented investigative journalist Jon Krakauer in the author's quest for records from the state regarding how it handled the discipline of a University of Montana athlete. The case has gone from district court to the Montana Supreme Court and back down again on remand.

In a recent order from Lewis and Clark County District Court, Krakauer won the right to see select redacted records; the Montana Supreme Court will take up the decision on appeal.

However, the first time around, the lower court awarded the author attorney's fees, and this time around, the lower court denied fees. So in a cross appeal, Meloy will ask the state high court to reconsider fees, a question he believes goes to the heart of Montana's constitutional protections for the right to know. 

"It's an extremely important issue to people, to the media, to anyone who routinely has to access the workings of government," Meloy said.

"If you can't recover your fees, you're probably not going to enforce your right ... (And) unless we get this straightened out, the right will be there, but it will be meaningless because nobody can afford to enforce it."

***

In recent years, more and more people have been seeking free legal assistance for government access through the Montana Freedom of Information Hotline, said Lee Banville, a University of Montana faculty member and Hotline board member.

"They are asking to access public meetings. They want public records," said Banville, associate professor with the UM School of Journalism and media law expert. "And their main concern is they can't afford to access this material because they face either attorneys' fees for filing a lawsuit or research fees and copying fees."

In the past, most of the people asking questions of the Hotline were journalists, but inquiries from members of the public who aren't affiliated with media are growing, Banville said.

In 2017, the number of total requests hit a high of 230, and requests from members of the public outpaced requests from media for only the second time in more than a decade, according to data from the Hotline.

The costs those people face — whether lawyers' fees or copying costs — represent a barrier to their ability to understand their communities, Banville said. However, he said attorneys' fees used to be less of a concern.

Formerly, he said, plaintiffs who filed frivolous claims against the government and lost would have to pay their own fees. However, he said plaintiffs who successfully sued the government for denying documents correspondingly would be awarded fees.

"Then you wouldn't have to pay the attorneys' fees to access the records that the government mistakenly didn't let you have," Banville said.

***

Typically in the United States, parties pay their own fees in court, Meloy said. However, he said legislators have identified exceptions in cases where "unless there is an option or an opportunity for the plaintiff to recover fees, an important public policy provision will not be enforced."

For example, he said state and federal lawmakers have decided it's important for people to be able to assert violations of their human rights. If plaintiffs prevail in those cases, then the court can award attorneys' fees.

Workers with wage claims have the same chance through a "make whole" remedy, he said. The idea is plaintiffs bringing the claims would otherwise be paying a lawyer to recover their own wages or to protect against discrimination.

"They should not have to incur the costs of the attorneys' fees necessary to enforce these rights," Meloy said.

In the last several decades, the "modern court" has generally awarded attorneys' fees in cases in which it has the authority to do so, he said. So if the plaintiff wins, he said, he or she recovers fees as well.

The high court reviews lower court decisions on fees based on an "abuse of discretion standard," Meloy said. That means unless a denial of fees is odd or out of the ordinary, the Supreme Court won't reverse the ruling.

"So an abuse of discretion standard is really difficult to overturn on appeal," he said.

***

But the courts treat right-to-know cases differently, said Meloy, who has worked on at least 40 such lawsuits.

In general, he said the courts have denied fees in right-to-know cases. Additionally, he said the court has developed a rule that applies in those cases: Basically, if the government claims it has a "reasonable basis" for denying a document or closing a meeting, the court doesn't have to award attorneys' fees. 

"That rule is specific in right-to-know cases," Meloy said. "It hasn't been applied in human rights cases or in any of the other cases in which attorneys' fees are involved."

So when members of the public call Meloy and make legitimate claims the government withheld public records, he must tell them there's a better than 50-50 chance they won't recoup costs even if they win in court.

In an earlier case, Yellowstone County v. Billings Gazette, Justice James Nelson in a concurring decision outlined specific factors the court should consider in awarding fees in right-to-know cases. For example, Nelson said the court should consider the government's timeliness in responding to requests, and also whether parties have actually asserted their privacy rights.

In the majority opinion in that same case in 2006, the court said the "discretion to deny fees in right to know cases is not unfettered." It remanded the Gazette's motion to recover costs because an outright denial without rationale is "an abuse of discretion."

The court again denied fees, but Meloy said to date the court still hasn't adopted standards.

"Along comes Krakauer," he said.

Initially, a lower court judge decided records in the disciplinary proceeding of the student athlete were public, and Krakauer therefore should have access to them. That time around, the court awarded attorneys' fees.

Subsequently, the Supreme Court remanded the case and asked the lower court to review records for privacy considerations. Upon review, the lower court ordered a selection of redacted records released. But it denied fees.

In his order, Judge Mike Menahan said the court agrees citizens compelled to litigate to maintain a fundamental public right deserve lawyer fees and costs. But in this case, he wrote, "it would be inequitable" because the government official "believed releasing the documents would violate the expectation of privacy of its students and run afoul of the Family Educational Rights and Privacy Act."

***

Banville said the remanded case was different than the original one because it required a review of documents. So he said it's not "outrageous" the court would also make a different ruling on fees. But he said it makes sense for the public to know the reasons.

Montana has no appeals board or ombudsman when it comes to government access, he said, and members of the public or media who get crosswise with government don't have options outside going to court.

"That's actually why it's so important to have this lawyer issue nailed down. There are no alternatives," Banville said. "So the question is, do you have the resources and the tenacity to take the government to court?"

In Fromberg, Pilati did have the tenacity, albeit not the resources. She's retired from real estate and the newspaper industry, and she's been following local government because she believes it's important. 

"This is America. This is my job, I guess. And it's the one place where you can have a positive impact within your local community," Pilati said.

She's among people who have reached out for help from the Hotline, where Meloy is consulting attorney. The town did provide three records in its first response to Pilati, but she didn't receive most documents related to the real estate deal until after Meloy sent a letter on behalf of the citizens group.

"Even before we became the advocacy group, we tried to get some documentation, and it's always just been a very cumbersome, difficult process," Pilati said.

Pilati and the advocacy group remain interested in other matters, like land use questions, and she sees their work as that of a voluntary news organization, with records and videos available on their website. If getting a response to a records request means a lawsuit, though, it's probably not going to happen.

"We're not like Judicial Watch," said Pilati of the national open records foundation. "We don't have any juice to get this done."

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University of Montana, higher education