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Montana Board of Regents file

A file photo from the Montana University System Board of Regents' September 2018 meeting in Billings.

The Montana University System’s governing body is considering changing its guidelines for public records requests.

During a conference call scheduled for Wednesday, the Board of Regents will discuss draft changes to its rules for requesting records at all Montana university campuses and the Commissioner of Higher Education’s Office.

Currently, those rules say “certain costs associated with fulfilling public records may be charged to the requestor.” If the edits are approved, they’ll say those costs “should be charged to the requestor.”

Vivian Hammill, chief legal counsel for the university system, said that the change won’t affect what the public can and can’t view, and described it as “just a housekeeping change to update it in compliance with the statute.”

But the statute cited by the draft guidelines only says that public agencies “may charge a fee for fulfilling a public information request” — not that they should or must. “The statute only authorizes” collecting fees, said Mike Meloy, a Helena attorney who specializes in public records issues. It doesn’t require collecting fees.

Even if this change is adopted, Hammill said, “there is still room for some discretion” on whether or not to collect fees. But Lee Banville, a University of Montana School of Journalism professor, predicted that in practice, the rule could lead to more fees being charged.

“Now (what) they’re saying is, the default position is, you pay,” said Banville.

Meloy concurs. “‘Should’ and ‘shall’ are pretty close,” he said.

In addition to the “may” to “should” change, the proposed revision would scrap set hourly fees for legal review, computer programming and other reviews that ranged as high as $60 an hour for legal review. The proposal would bill requestors for the “actual cost” of these tasks when fees are assessed. Under state law, record-production fees cannot exceed the actual cost of producing them.

With these edits, Hammill said, “I actually anticipate that in some respects it’ll be lower and in some respects it’ll be about the same.”

Banville is more skeptical. “They are not revising this to make it cheaper,” he said, predicting that the proposed changes would have a “chilling effect” on Montanans requesting records from the university system, which teaches tens of thousands of students statewide, and whose records are, for the most part, subject to public review under state law.

“Basically they’re saying to get a record that you have the right to get, you’re going to get a bill,” said Banville.

Hammill, however, pointed out that the rules haven’t yet taken effect, and that filling these requests can be a heavy lift for staff. “I’ve had some public records requests that take an enormous amount of time, like three weeks worth of time,” she said.

These proposed changes come after a ruling in a records-related case at the university system. Last week, the Montana Supreme Court denied author Jon Krakauer’s petition to obtain records from the Office of the Commissioner of Higher Education concerning a star football player accused of sexual assault, and upheld a lower court ruling denying attorney’s fees.

The Montana Board of Regents will discuss the proposal during its conference call scheduled for the morning of Wednesday, July 10, and may vote on it at a future meeting. Visit https://mus.edu/board/meetings/2019/July2019/July2019.asp to view the proposal and instructions for listening to the conference call.

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