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Open records

It’s easy to forget, if you aren’t in the habit of regularly requesting public records, just to whom those records belong. And it’s easy to take for granted that those records will be readily available upon request.

Unfortunately, too many government officials behave as though they, and not the public, are the owners of the documents they handle. Providing records to the public they serve is not an additional service for government workers. It is part of their regular job duties. 

And too many members of the public forget that they — not just journalists — have the right to review those documents. 

Now, with Montanans’ right to examine the work of our governing bodies at risk on multiple fronts, it’s as important as ever to remember that public records belong to everyone. It’s not the press’s right to know. It’s the public’s right to know. But from Missoula County to the State of Montana to the United States government, officials at every level are actively trying to keep information hidden from the public.

Just last week, the Missoula County Board of Commissioners closed a public meeting to discuss a draft legal complaint from 27 county employees. The county initially refused to provide copies either of the complaint or the draft claim letter, or even disclose which department the employees work in, noting that the documents had not yet been filed in court.

But court filings are not a requirement for open records. Montana’s Constitution is clear in stating that “(n)o 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.”

The Montana Supreme Court has a long tradition of upholding the public’s right to participate in government through open meetings and open records through legal precedent — up until a worrisome ruling earlier this month.

In that case, the court narrowly decided that the public does not need to know how or why the Commissioner of Higher Education reinstated a star quarterback who was expelled from the University of Montana after being accused of rape in 2012. The student was later acquitted of the charges in court. Author Jon Krakauer, who recounted the allegations in “Missoula: Rape and the Justice System in a College Town,” sought official records that would reveal Higher Education Commissioner Clayton Christian’s decision-making process, but the court’s 4-3 ruling determined that the student’s right to privacy exceeds the public’s right to know.

As former Montana Supreme Court Justice Jim Nelson sagely pointed out in a guest column published just a few days ago, Krakauer was not seeking private information about the student. Rather, his public records request was aimed at the commissioner’s office, which merely used the student’s privacy rights to shield itself from having to disclose the information of public interest.

University students certainly have a right to individual privacy, including their academic records. University officials, on the other hand, have a duty to the public they serve to share nearly every aspect of their work with the public. It’s our strongest method — and sometimes our only recourse — in holding government officials accountable.

The court’s ruling leaves a lot of important questions unanswered, questions Krakauer says he may pursue on appeal to the U.S. Supreme Court. It may yet be possible to answer some of those questions with a more narrowly focused public records request that would not include any students’ private academic records.

But Montanans should be uneasy about what this and other developments may mean for their ability to access Montana University System documents in the future.

Also last week, the Montana Board of Regents continued its consideration of policy changes that would make it more difficult — by making it more expensive — to request public records. The change would essentially direct university system employees to charge fees for processing such requests in all cases. Currently, Montana law allows government entities to collect fees from those making public information requests, so long as the fees do not exceed the “actual costs” of filling the request. But officials can make these costs stack up quickly in a variety of often unnecessary ways: by subjecting them to review from a legal expert first, by compiling them in a costly format (such as boxes of duplicative print copies) and by treating nearly identical requests as distinct inquiries requiring them to start the entire process all over again.

A concerned member of the public may be shocked to discover just how costly and onerous this process can be. Montana journalists are already familiar with the hurdles. They typically file dozens of public records requests each year, and for small- and mid-size newsrooms, the costs can quickly add up. And should any official refuse to comply, the only remedy is an even more costly argument in court. Prevailing news outlets may see the documents ordered released and their costs recouped, if they have sufficient resources and time to pursue this final option.

The problem is only compounded at the federal level. For instance, after Montana and national reporters sought information concerning multiple investigations of former U.S. Interior Department Secretary Ryan Zinke, the department proposed a new rule that would allow it to delay the processing of requests and cap the number of documents it provides to the public, among other restrictions.

Government workers at every level should have the training, resources and support they need to make public documents readily accessible. With today’s technological advances, it should it be easier than ever to operate with transparency — and the public should demand no less.

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