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The public’s right to know - or not
Guest column

The public’s right to know - or not

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One of the constitutional guarantees that Montanans enjoy is the right to know. This is one of our unique fundamental rights; it is not protected in the federal Constitution.

Article II, Section 9 states: “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.”

Grounded in the Constitutional Convention debates and the framers’ acknowledgment of the importance of government transparency and accountability, Montana Supreme Court decisions have upheld the letter and the spirit of the right to know.

Specifically, the court has held that, among other things: there is a constitutional presumption that all documents of every kind in the hands of public officials are amenable to inspection; that these government officials have an “affirmative duty” to make all of their records and proceedings available to public scrutiny; that this presumption is unqualified and not limited to the facts of a particular case; that the right to know surrenders to the right of privacy only where individual privacy clearly exceeds the merits of public disclosure; and that, in balancing the two rights, the right to know trumps the right of privacy when the balance is even.

The public’s right to know is one of the few fundamental rights that do not require some sort of legislative implementation. Indeed, individuals, journalists, authors, the press and other media sue directly under this provision to rightfully obtain and report the contents of public documents.

This background demonstrates why the Supreme Court’s July 3 decision in Krakauer v. the Commissioner of Higher Education, Clayton Christian is so distressing.

Without going into minutia, recall that Jon Krakauer, author of the book "Missoula, Rape and the Justice System in A College Town," sued the Commissioner of Higher Education to obtain documents that might explain why the commissioner reversed the expulsion of the Montana Grizzly’s star quarterback who had been implicated in (and, after a trial, acquitted of) one of the incidents discussed in the book. Ultimately, the disputed issue devolved into one involving the quarterback’s “privacy rights” in his “educational records.”

Basically, the District Court ordered the records released. On appeal, the Supreme Court reversed that decision, ruling that the student’s privacy rights in his educational records trumped the public’s right to know the rationale behind the commissioner’s decision. As far as it goes, that might make sense. Educational records are protected under state and federal law. No one disputes that.

But, really, that is not as far as it goes. Krakauer wasn’t trying to find out the grade that the quarterback got in chemistry or literature, or whether he switched majors or dropped English. Rather, Krakauer was trying to discover the reasons why, at the highest levels of university administration, a decision was made to reverse the expulsion of a star athlete alleged to have been involved in a felonious sexual assault.

The commissioner’s rationale underlying his decision is not a component of the quarterback’s educational record. But even if it were, the student cannot assert a privacy interest — much less a clear privacy interest — in the grounds relied on by a public official in rendering a particular ruling that affects the student. The commissioner’s rationale cannot be kept secret by cloaking it in the educational records of the student.

Did the commissioner determine that the university had applied unlawful procedures in reviewing the student’s case? Did the commissioner determine that the evidence was insufficient to support the university’s expulsion decision? Did the commissioner simply believe that the quarterback was too integral to the Grizzly's success that season? The why questions surrounding the commissioner’s decision were the real issue; but those, now, will never be answered. That is abuse of the public’s right to know.

Justice Rice’s partial dissent and concurrence (joined by Chief Justice McGrath and Justice Baker) recognizes this problem in quoting from a federal District Court decision involving this same matter:

“[L]ost in all of this is the valid and compelling interest of the people in knowing what the University of Montana is up to. It has been established that the prevalent and long-standing approach of the federal courts is to reject secret proceedings. There are very few exceptions to this rule. The principle of openness in the conduct of the business of public institutions is all the more important here, where the subject matter of the litigation is a challenge to the administrative disciplinary process of a state university.”

As Justice Rice states, “people must be able to learn what their institutions are ‘up to,’ and that government is not engaged in inappropriate conduct. Did the Commissioner make a decision on appropriate legal grounds? Did he exhibit favoritism? Was he subject to outside influence? ... ‘[Transparency] is crucial to the legitimacy of a public institution.’ ”

Finally, there’s an even more serious rub. Montana Supreme Court opinions are the law of the land; Krakauer will serve as precedent for other right-to-know cases.

It has been demonstrated time and time again that individuals, journalists, authors, the press and other media already have a difficult time in gaining access to public documents; to discover why public officials are making decisions; and to find out what their government agencies and institutions are “up to.”

In practice, the public’s right to know is not as lucent as the framers contemplated it would be. Public officials at all levels seem to believe they have a proprietary interest in the public documents deposited in their charge; that they have the duty to determine whether their concept of privacy clearly exceeds the merits of public disclosure; that they must test and challenge the motives and intent of those requesting public documents; that, in many cases, the government and its officers must be protected against charges of wrongdoing and embarrassment; and that, ultimately, it is easier to deny or make difficult public access, than to simply honor the public’s right to transparency and accountability that the Constitution plainly and clearly requires.

Unfortunately, I believe that Krakauer will be cited to support those sorts of propositions and approaches in future cases.

The public’s right to know is a Constitutional mandate; it is the guarantee that we the people have the right and ability to determine what our government and public officers are up to; it guards against corners being cut and secret deals made; it requires governance of openness, not of good old boy networks.

Article II, Section 9 is the public’s right to know, not the government’s right of first refusal.

James C. Nelson is a retired Montana Supreme Court justice.

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