At about this same time each year, we long for sunshine to welcome the days of spring. Meanwhile, newspapers across the country join forces in calling for sunshine - for a transparent, open government - to highlight the importance of free-flowing public information every day of the year.
This year's Sunshine Week will be celebrated from March 13-19. Throughout the week, the Missoulian will do its part by publishing editorial cartoons calling attention to national freedom of information issues.
Today, however, we want to call attention to a piece of legislation that promises to uphold the public's right to access information right here in Montana.
Senate Bill 217, sponsored by Terry Murphy, R-Cardwell, is aimed squarely at enforcing Montana's strong right-to-know laws by more fairly awarding court costs in disputes concerning public access. Specifically, the bill would clarify that "the existing right to attorney fees and costs in a legal action to obtain a document or to have access to a public meeting applies only to the
party seeking the document or access."
Currently, fees and costs are only awarded to the plaintiff in such cases, meaning government agencies and other public officials may sue someone who requests information pre-emptively - especially if they expect to lose the suit - in order to avoid having to pay court costs.
Sound like a stretch? The Billings Gazette found itself in just such a scenario when it requested information concerning teacher misconduct from the Billings school district. The district refused to turn over the information and sued the newspaper to keep from having to do so. The 2006 Supreme Court ruling on the case found that the information was indeed public - but that the Gazette, as the defendant in the suit, could not recover its court costs.
Unfortunately, this is not the only example of a such a maneuver. Just last year, the Gazette again found itself the defendant in a lawsuit, this time brought by Yellowstone County, which was attempting to keep a report about a human resources investigation under wraps. A district judge determined that the report is, indeed, a public document and ordered the county to release it.
One can easily imagine public agencies across Montana opting to sue individuals and newspapers rather than turn over public information they deem inconvenient or embarrassing. Doing so, however, is an underhanded way of skirting Montana's strong constitutional provisions upholding the public's right to know. It's right there in Section 9 of Article II in the state Constitution: "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."
Fortunately, Montana's state senators took a big step towards righting the imbalance in court award judgments when they approved SB217 on a near-unanimous, bipartisan vote. On its third reading in the Senate, SB217 passed with 47 votes in support and only one nay (from Sen. Joe Balyeat, R-Belgrade; two senators - Shannon Augare, D-Browning, and Rowlie Hutton, R-Havre, excused themselves from voting but had previously voted in favor of the bill).
The bill was forwarded to the House and last week received a hearing before the Judiciary Committee.
We hope the House will echo the Senate's keen understanding of Montana's right-to-know laws and bipartisan spirit in swiftly approving this legislation - thereby leveling the playing field between the agencies in charge of keeping public information and the people who have every right to access it.