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Judge denies Gianforte’s ‘executive privilege’ defense in record request lawsuit

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Broad executive privileges to withhold government documents would ‘effectively gut the right to know,’ Lewis and Clark County District Court Judge Kathy Seeley wrote in her order.

By Amanda Eggert MONTANA FREE PRESS

A Helena judge has ordered Montana Gov. Greg Gianforte to release government records that spurred a prominent right to know lawsuit.

The lawsuit was brought by Helena resident and Democratic political consultant Jayson O’Neill, who filed a request in May 2021 for agency bill monitoring forms, which contain communications between the governor’s office and state agency leaders regarding legislative bills expected to impact state government operations. Two months later, the governor’s office denied O’Neill’s request, citing attorney-client privilege.

In September 2021, O’Neill sued the governor’s office for access to the forms, arguing that they are subject to the right to know enshrined in the Montana Constitution and that the governor’s office lacks any “legitimate privileges” that would preclude their release.

Attorneys representing Gianforte argued that releasing even basic information about the bill monitoring forms would have the effect of “chilling candid legal communication among agency counsel” and that the governor’s office should have access to the same confidential deliberation that judges are afforded as they work through decisions. Gianforte’s attorneys also argued that the governor possesses an “executive communications” privilege and a “deliberative process” privilege that serve the public interest by preserving government integrity. 

Lewis and Clark County District Court Judge Kathy Seeley sided with O’Neill in her Dec. 14 order directing Gianforte’s office to provide the material O’Neill seeks to the court so it can assess which contents the state may properly withhold based on individual privacy concerns or attorney-client privilege. 

Seeley wrote that the state Supreme Court has consistently recognized the right to know as fundamental and subject to “the highest degree of protection,” describing the forms O’Neill seeks as “precisely the type of government document” that framers of the Montana Constitution intended to protect access to when they drafted Article II, section nine.

That provision of the state Constitution holds that “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.”

In her order, Seeley wrote that Gianforte’s executive privilege argument leaned heavily on case law from other jurisdictions, which she did not find compelling “in light of the ‘unique, clear, and unequivocal’ language” in Article II of the Montana Constitution.

“If Montana courts were to recognize the kind of privilege the Governor has described, it is unclear whether any documents in the Governor’s control would remain subject to disclosure. Recognizing broad executive privileges would effectively gut the right to know as it applies to the Executive Branch because every document may inform the Governor’s decision making in some way,” she wrote.

The order also examines Gianforte’s assertion that the documents are subject to attorney-client privilege, a right-to-know carveout that’s commonly recognized by courts. Seeley sided with O’Neill’s attorneys in their argument that the bill monitoring forms are more akin to “policy advice” than “legal advice.” The more appropriate approach, she said, is for the governor’s office to produce the documents so the court can review them and “determine how much of the content, if any,” is legal advice subject to withholding.

If Montana courts were to recognize the kind of privilege the Governor has described, it is unclear whether any documents in the Governor’s control would remain subject to disclosure.”

LEWIS AND CLARK COUNTY DISTRICT COURT JUDGE KATHY SEELEY

In a press release about Seeley’s order, an attorney representing O’Neill described public access as the “ultimate check” on power wielded by elected officials. 

“The Court’s well-reasoned order ensures that the people remain at the center of our constitutional system,” Upper Seven Law Litigation Director Constance Van Kley said.

O’Neill was also represented by 2020 Democratic Attorney General candidate Raph Graybill, who said Seeley’s ruling underscores that the “Governor is not a king” and “no one is above the law.”

In an interview with Montana Free Press, Mike Meloy, a Helena attorney who works with the Montana Freedom of Information Hotline, described the governor’s attorneys’ arguments as “fanciful hogwash.”

“I appreciate the imagination of whoever thought those up, but they just weren’t going anywhere, and I think Judge Seeley put all of those to rest,” Meloy said, adding that the court’s decision has effectively weakened future access to executive privilege claims. 

Gianforte spokesperson Brooke Stroyke said in an email that the governor’s office is reviewing the decision and “the governor respects and honors Montanans’ constitutionally guaranteed right to know.”

Next month, a lawsuit involving similar claims of deliberative process and executive communications is set for a hearing before Judge Christopher Abbott, also of Lewis and Clark County District Court. Plaintiffs in that lawsuit are seeking access to communications pertaining to mining, the state’s “bad actor” statute and Idaho-based mining company Hecla, which seeks to open two mines in Lincoln County.

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