Access in Montana
Frequently Asked Questions: A guide for journalists and citizens
Journalists and other citizens frequently run up against closed doors in their
search for information and access, often because they’re simply not aware
of their rights.
The Montana Journalism Review and the Montana Freedom of Information Hotline
offer this guide to educate journalists and citizens about public access to
state, federal and local government. Questions and responses in this guide
were culled from questions journalists have already asked the Montana FOI Hotline,
operated by a coalition of news media to monitor, ensure and enforce the public’s
right to know. The Helena law firm of Meloy Trieweiler answers a full range
of questions on government access at 406-442-8670.
This guide should in no way substitute for legal guidance from the FOI Hotline.
The purpose of the FAQ is to serve as a guide that will answer basic access
questions. It should also help journalists narrowly define inquiries they might
make to the Hotline. Complex issues should always be referred to either the
Hotline or the news organization’s legal counsel.
OPEN MEETINGS
What laws govern access to meetings?
Montana's 1972 Constitution has two key right to know sections that are the
strongest in the nation in guaranteeing citizens’ right to inspect public
records and attend meetings of government agencies at all levels of state and
local government.
Article II, Section 8. Right of Participation. The public has the right to
expect government agencies to afford such reasonable opportunity for citizen
participation in the operation of the agencies prior to the final decision
as may be provided by law.
Article II, Section 9. Right to Know. No person shall be deprived of the right
to examine documents or to observe the deliberations of all public bodies or
agencies of the state government and its subdivisions, except in cases where
the demand of individual privacy clearly exceeds the merits of public disclosure.
Title 2, Chapter 3 of Montana Code Annotated (MCA) further defines access to
meetings in Montana.
2-3-201 Declares the Legislature’s intent that “public boards,
commissions, councils and other public agencies in this state exist to aid
in the conduct of the peoples’ business.” It further declares that
provisions of this part of the law “shall be liberally construed” in
favor of openness.
2-3-202 Defines a meeting as the convening of a quorum of a public agency to
hear, discuss or act upon a matter over which the agency has control or advisory
power.
2-3-203 Says all meetings of governmental bodies of the state, political subdivisions
or organizations supported in whole or in part by public funds shall be open
to the public, including committees and subcommittees. The presiding officer
may close a meeting for discussion of a matter involving individual privacy,
but only if the officer determines that the demand of individual privacy clearly
exceeds the merits of public disclosure. The right to individual privacy may
be waived by the individual about whom the discussion pertains. Meetings may
be closed to discuss litigation strategy when an open meeting would have a
detrimental effect on the position of the public agency. Meetings in which
the only parties are public bodies may not be closed to discuss litigation
strategy.
The public must also be provided the opportunity to comment on any item even
if the item is not on the public meeting agenda. 2-2-103 MCA (1)(a).
For what reasons can a meeting of a governmental body be declared closed to
the public?
As noted above, meetings can be closed should the body discuss matters involving
individual privacy (e.g. personnel matters) if the presiding officer determines
that the demand of individual privacy clearly exceeds the merits of public
disclosure. Public bodies may not close meetings to discuss collective bargaining
strategy. Great Falls Tribune v. Great Falls Public Schools, 255, Mont. 125,
841 P.2d 502 (1992). Also 2-3-203 MCA.
Nor may public bodies close a meeting to discuss litigation strategy in which
the only parties are public bodies. Associated Press v. State Board of Public
Education, 246 Mont. 386, 804 P.2d 376 (1991). The FOI Hotline believes that
the exemption exception is unconstitutional and could be overturned if challenged.
What must the officer do to close a meeting?
Meeting closures are at the discretion of the meeting’s officer. Before
closing a meeting, the presiding officer must explain in open session the reasons
for closing the meeting and must also explain each item the body intends to
discuss in private before closing the meeting. For example, a school board
may not close a meeting to discuss personnel matters, then move on to other
business while in closed session.
Individuals may waive their rights to privacy and allow meetings to remain
open, even when personnel matters are being discussed.
Can governmental bodies meet by telephone or other electronic means?
Yes, but they must allow the public to participate. 2-3-202 MCA defines a meeting
as “the convening of a quorum of the constituent membership of a public
agency or association ...whether corporal or by means of electronic equipment … ”
The state Supreme Court has ruled that a telephone conference with a quorum
is subject to the Open Meeting Act. Board of Trustees, Huntley Project School
District No.24 vs. Board of County Commissioners, 186 Mont. 148, 606 P.2d 1069
(1980). Therefore, all laws governing public access to such meetings would
apply, and meetings could be closed only for the exceptions noted (such as
when an individual’s right to privacy clearly exceeds the public’s
right to know). The public body must give notice of the meeting in ample time
to allow the public to participate.
Must public agencies post their agendas?
Montana's Open Meetings law does not strictly require public agencies to post
their agendas. However, recent rulings combined with other Montana statutes
clearly indicate that agencies should post agendas.
In a sweeping 1998 opinion with implications for all public bodies, Attorney
General Joe Mazurek ruled that county commissioners cannot comply with the
state’s open-meetings law by saying they may meet anytime during their
regular work week. The ruling said commissions must specify particular meeting
dates and times in advance to let citizens know when a quorum will meet to
discuss or act on any issue of significant public interest. That’s so
the public has an opportunity to participate in the decision making.
In Board of Trustees vs. Board of County Commissioners (1980), the Montana
Supreme Court ruled that “(w)ithout public notice, an open meeting is
open in theory only, not in practice.”
Further, the Public Participation Act requires agencies to develop procedures
to “ensure adequate notice” before a final decision and to assist
public participation in its decision-making before the decision is made (2-3-103
MCA). Public notice must be given even for meetings that can be legitimately
closed to the public.
In Seliski v. Rosebud County et. al., Rosebud County Case No. DV 94-13 (1995),
District Judge Joe Hegel found that a county commission’s practice of
conducting meetings on regular business days from 8 a.m. to 5 p.m. without
notice of when particular matters would be discussed, was “really no
notice at all” and violated the Public Participation in Government Act,
2-3-101, et seq., MCA. The public should be given an adequate agenda of subjects
to be discussed by the governmental agency, sufficiently in advance to allow
members of the public to decide to attend and/or give input on significant
decisions.
Can public agencies close meetings to discuss collecting bargaining strategy?
No. The Supreme Court threw out that exception to the Open Meetings Act in
1992. Great Falls Tribune vs. Great Falls Public Schools, supra. In 1993, the
Legislature amended 2-3-203 MCA to remove the exception.
Does the Open Meetings Act apply to committees of the whole? What types
of ``public agencies’’ all under the Open Meeting Act?
2-3-203 MCA says the meetings of public agencies and certain associations of
public agencies must be open to the public. These include public or governmental
bodies, boards, bureaus, commissions, agencies of the state or any political
subdivision of the state or organizations or agencies supported in whole or
in part by public funds or expending public funds.
Further, any committee or subcommittee appointed by a public body ... for the
purpose of conducting business which is within the jurisdiction of that agency
is subject to the requirements of the Open Meetings Act. This would apply to
committees of the whole, as well as to “work sessions” sometimes
held by school boards.
In a landmark decision, the Montana Supreme Court ruled in a suit brought by
The Associated Press and 13 other news organizations in 2004, that the meetings
of an informal committee of public university officials must be open to the
public under the Montana Constitution and open meetings laws. Commissioner
of Higher Education Richard Crofts held meetings with high-ranking university
employees, including presidents and chancellors, to seek input on such policies
as student tuition and fees. In 2002, one of these meetings was canceled by
Crofts after an AP reporter came to cover the meeting and wouldn’t leave.
The Supreme Court said the policy committee was a public body and its deliberations
should have been open, even if it did not produce a result or action, take
voters or keep minutes. ``In this case, while the Policy Committee was not
formally created by a government entity to accomplish a specific purpose,’’ wrote
Justice John Warner for the 5-2 majority, ``it was organized to serve a public
purpose.’’
The court said that factors to be considered in determining if such a committee
is subject to open meeting laws include, but are not limited to whether the
meetings are paid for with public funds, whether committee members are public
employees acting in their official capacity, frequency of meetings, whether
the committee deliberates or just gathers facts, whether the meetings concern
policy matters rather than mistrial or administrative functions, whether the
committee members have executive authority, and the result of the meetings.
The Associated Press v. Crofts, 321 Mont., 89 P.3d 971(2004)
A 2001 decision found that a committee, or advisory board, made up of several
school principals, a school board trustee, two teachers and four member of
the public formed to discuss school-closure options was subject to open-meeting
laws. Bryan v. Yellowstone County Elementary School Dist. No. 2, 312 Mont.
257, 60 P.3d 381 (2002)
The meetings of associations composed of public or governmental bodies that
regulate the rights, duties or privileges of any individual must be open to
the public.
What type of personal information can a meeting be closed for?
This private, personal information is generally limited to family problems,
health problems, drug and alcohol problems (see 42 Mont. AG. Op. 119 (1988),
and information
relating to marriage to procreation, contraception, family relationships, and
child rearing. Flesh v. Mineral and Missoula Counties, 241 <pmt/ 158, 786.
P.2d.2d 4 (1990).
Can meetings of public agencies and public bodies be closed to discuss job reviews?
The Court has ruled that the public’s right to know is not absolute; an
individual’s right to privacy must be weighed against it. In Missoulian
v. Board of Regents, 207 Mont. 513, 675 P.2nd. 962 (1984), the court ruled that
closure of university presidents’ job-performance evaluation meetings was
necessary to protect individual privacy of university presidents and other university
personnel. Some government officials, including a city manager, have chosen to
allow the public to view their job reviews.
Can a governmental body close proceedings during a hiring process?
Governmental bodies, such as school boards hiring superintendents, can close
proceedings to the public in order to protect the privacy of the candidates if
those candidates have a reasonable expectation of privacy. Missoulian v. Board
of Regents, supra. Governmental bodies have chosen to keep candidate searches
open by asking candidates whether they mind public interviews, thereby eliminating
the expectation of privacy. If the candidates were not told beforehand that the
proceedings were to be open, a governmental body could justifiably close a meeting.
Nevertheless, an argument can be made that the hiring process should be open
if the body is looking to fill a position that is important to the community.
Should a meeting to discuss the discipline/termination of a city employee be
closed for privacy if the employee wants it open?
No. According to 2-3-203(3) MCA: “The right of individual privacy may be
waived by the individual about whom the discussion pertains, and, in that event,
the meeting must be open.”
What are the remedies if a meeting was illegally closed?
A decision made in an improperly closed meeting may be voided by an action brought
in district court within 30 days of the decision (2-3-213 MCA) and a successful
plaintiff can be awarded attorney fees (2-3-221 MCA).
Can pictures or recordings be taken in open meetings?
Under 2-3-211 MCA, “accredited press representatives may not be excluded
from any open meeting ... and may not be prohibited from taking photographs,
televising, or recording such meetings.” The attorney general has also
ruled that the legislative intent of the law would be furthered by allowing the
public to mechanically record open meetings. 38 Op. Att’y Gen. No. 8 (1979).
Are agencies required to keep and provide access to minutes of their proceedings?
Yes. According to 2-3-212, MCA, appropriate minutes of all open meetings shall
be kept and shall be available for inspection by the public. Minutes must include
the date, time and place of the meeting; a list of the individual members of
the public body, agency or organization in attendance; the substance of all matters
proposed, discussed or decided; and, at the request of any member, a record by
individual members of any votes taken.
County commission minutes should be published within 21 days after adjournment
of the session, or within 30 days for certain financial information (7-5-2123(2)
MCA). Nevertheless, minutes should be available upon request, even if they are
in draft form and have not been approved by the governmental body. The Public
Records Act, 2-6-101, et seq MCA, and Article II, Section 9 of the Montana Constitution
does not make a distinction between draft minutes and final minutes. Both must
be provided to the public.
County commissions are required to keep a “minute book” (7-5-2129
MCA).
Does passing notes and whispering among members of governmental bodies violate
the Open Meetings Act?
There are no court cases or sections of statute that support these attempts at
secrecy. If those deliberations consist in part of the passing of notes or the
exchanging of whispered comments, the public is being deprived of its constitutional
right to observe the deliberations of the public body and to have access to public
documents. This is little different than if the board met behind closed doors.
Are committee meetings of the Montana Legislature open to the public and the
press?
Yes. According to Article V, Section 10, subsection 3 of the state constitution, “The
sessions of the legislature and of the committee of the whole, all committee
meetings, and all hearings shall be open to the public.” This includes
when committees are taking votes.
Are political caucuses of the Montana Legislature open to the news media and
public?
Yes. In 1995, The Associated Press and 21 other news organizations in Montana
sued to end the practice of closed-door caucuses, arguing that they are part
of the legislative process where important public-policy issues are discussed
by legislators. State District Judge Thomas Honzel ruled later that year that
organizational party caucuses, held before the start of the legislative session,
should be subject to the state open meetings law.
Honzel also ruled, however, that the news media had no legal basis for suing
to get access to party caucuses during legislative sessions. The news media appealed
this decision to the Montana Supreme Court, which ordered Honzel to reconsider
the issue. Honzel ruled in 1998 that the caucuses during legislative sessions
are to discuss public business, so they too are subject to the open meetings
law. The Legislature did not appeal and the caucuses have been open since the
1999 session.
PUBLIC RECORDS
What are the laws governing access to public documents in Montana?
In addition to Article II, Section 9 of the Montana Constitution, sections 2-6-102,
104 and 110 MCA govern access to public documents.
2-6-102 MCA gives citizens the right to inspect and copy any “public writings” of
the state, except as prohibited by statute. The law makes no distinction between “draft” documents
and completed documents.
2-6-104 MCA says public records are available for inspection at all times during
office hours.
2-6-110 MCA provides that each person is entitled to a copy of public information
in electronic form, upon payment of a fee for the time and materials used to
transfer the data.
The 1999 Legislature clarified that electronic records include, but are not limited
to, videotapes, photographs, microfilm, film and computer disks. If requested,
information provided to the public must reflect the condition of the original.
Further, the code spells out more specific requirements for school boards while
they determine their budgets. See sections 20-9-115 and 131 MCA.
What is defined as a public record?
2-6-101 MCA defines public records as “the written acts or records of the
acts of ... public officers, legislative judicial and executive,” or as “public
records kept in this state of private writings” (with exceptions).
Are jury lists public documents?
Yes. Two sections of Montana law require that both grand jury and regular jury
lists should be open to the public.
3-15-503 addresses regular juries and 3-15-601 addresses grand juries. Under
both of these laws, jury lists must be open to public inspection during regular
business hours.
Does the right of individual privacy extend to corporations?
No, after repeatedly upholding this notion, the Montana Supreme Court abandoned
this position, ruling that the Montana Constitution never intended to give a
privacy right to ``non-human entities.’’ The ruling came in a lawsuit
filed by news groups seeking access to power-purchase deals that a former utility
had filed with the Montana Public Service Commission. The court, however, said
that nothing in the state constitution requires disclosure of trade secrets and
other confidential proprietary information where the data is protected by statute.
Great Falls Tribune v. Montana Public Service Commission, 359, 319 Mont. 38,
82P.3d876 (2003)
Are tax records public?
It depends on the record, and this is an area of the law that is still being
litigated. In 2000 the Montana Supreme Court struck down a state Revenue Department
policy that held confidential some coal tax records that formerly were public,
saying the practice violated citizens’ constitutional right to know. Associated
Press et al. v. Montana Department of Revenue 300 Mont. 233, 4P3d5 (2000).
Can a request for electronic records be refused if they are public?
Not according to 2-6-110 MCA, enacted in 1993. This law provides that each person
is entitled to a copy of public information in electronic format, including e-mails,
upon payment of a fee for the time and materials used to transfer the data.
The Legislature has said that the term ``public record’’ includes
electronic mail sent or received in connection with official business. 2-6-202,
MCA. In a publicized request in 2002, more than 3,000 e-mails from the governor’s
office were turned over to The Associated Press and Lee Newspapers after they
had been screened to determine if the right of individual privacy clearly exceeded
the public’s right to know. The governor’s office said that screening
the mail for privacy cost more than $28,000, not including some technology expenses.
Are 911 tapes kept by law enforcement public records?
Yes. There is nothing in the law granting greater protection to 911 tapes versus
other public records. Like other public documents, they may be withheld only
when the demand for individual privacy clearly exceeds the merit of public disclosure.
Can a state agency charge for access to electronic documents?
Yes. According to 2-6-110 MCA, agencies may charge expenses for accessing the
mainframe and any other out-of-pocket expenses associated with the request for
information. It also sets the allowable labor charge at the hourly rate for an
employee classified as grade 10, market salary, if the copying takes more than
a half-hour.
Legislative action has given agencies more leeway in charging for access to electronic
records. In 2001 the state Department of Administration was allowed to charge
``convenience fees’’ for electronic services, and these fees exceed
the costs of actually making copies. 2-17-1101, MCA. The Legislature extended
that power to counties and municipalities in 2003. If challenged, these laws
will probably not meet constitutionality scrutiny, because they violate Montanans’ right
to know.
Are letters written to a public agency by a private individual public documents?
Yes. Once in possession of the government, letters are public documents unless
there is a sufficiently strong right of privacy that overrides the public’s
right to know. In most cases, those who write letters to a government agency
or body, especially to complain, do not have an expectation of privacy.
Can a state agency demand that the public make requests for documents in writing
so they may be screened?
This runs counter to 2-6-104 MCA, which says public records are available for
inspection at all times during office hours.
Can a public agency withhold reports alleging gross negligence or official misconduct
by public employees?
Landmark rulings offer good arguments that such documents must be released. In Bozeman Chronicle vs. City of Bozeman, 260 Mont. 218, 859 P.2d 435 (1993), a
Bozeman police officer was accused of raping a cadet at the state Law Enforcement
Academy. No criminal charges were brought, and the officer resigned before any
disciplinary action was taken. The city and the county denied the newspaper access
because, they argued, the investigative files were confidential under the Criminal
Justice Information Act. The Supreme Court disagreed, ruling that the police
officer’s right to privacy was exceeded by the public’s right to
know. The court ordered in camera inspection of the documents at issue, to protect
the privacy right of the victims and the witnesses.
Additional support comes from Citizens to Recall Mayor vs. Whitlock, 255 Mont.
517, 844 P.2d 74 (1992),and Great Falls Tribune v. Cascade County Sheriff, 238
Mont. 103 775 P.2d 1267 (1989). In Whitlock, the mayor of Hamilton was accused
of sexually harassing the city judge. No criminal charges were brought, but the
city hired an investigator to investigate the accusations and to prepare a report
for the city. The city subsequently refused to release the report to the public.
The court ruled that the mayor’s expectation of privacy was unreasonable
as a matter of law: “Society will not permit complete privacy and unaccountability
when an elected official is accused of sexually harassing public employees or
of other official misconduct related to the performance of his official duties.” See
also Billings High
School District No. 2 v. The Billings Gazette (2005) in which
the Bozeman Chronicle case was used as support for ordering release of documents
relating to the suspension of two high school teachers found in a "compromising
position" by a student.
In Great Falls Tribune v. Cascade County Sheriff, supra, the Court held that
the limited privacy interest of public officers disciplined for brutality did
not outweigh the public’s right to know.
Are “draft” copies of public documents open for viewing by
the public?
Yes. 2-6-102 MCA makes no distinction between “draft documents” and
completed documents. The courts have also ruled that draft documents are public
documents.
Are initial offense reports and initial arrest records kept by law enforcement
considered public records?
Yes. Under the law, telephone logs are considered either “initial offense
reports” or “initial arrest records,” or both. These are public
under the Criminal Justice Information Act. See 44-5-103(13)(e)(i) MCA.
In 42 Att’y Gen. Op. 119, the attorney general defined “initial arrest
records” as “the first record made by a criminal justice agency indicating
the fact of a particular person’s arrest, including the initial facts associated
with that arrest,” and “initial offense reports” as “the
first report recorded by a criminal justice agency which indicates that a criminal
offense may have been committed, including a description of the initial facts
surrounding the reported offense.” The opinion said confidential information
may be blacked out, but the edited report should be public.
A law passed in 1995, 44-5-311 MCA, protects the identity of a crime victim.
The law says policy cannot release the address, telephone number or place of
employment of a victim who requests confidentiality. The law also forbids police
from releasing the names of sex crime victims except in certain situations.
In 50 Att’y AG. Op. 6, the attorney general in 2004 softened this law,
saying police may disclose a crime scene location, even if such disclosure may
suggest the identity of the victim, even the victim of a sex crime. The opinion
further said that confidentiality attempts by victims need to be subjected to
a balancing act between public disclosure and privacy under the Montana Constitution.
In doubtful cases, the agency may submit the matter to the courts, the opinion
said.
Are driving records and drivers’ license information, including
photos,
public?
The 2003 Legislature further limited disclosure of information from drivers’ licenses,
vehicle titles, vehicle registration and vehicle insurance status. Information
that is not available to the public includes a driver’s photo, Social Security
number, medical or disability information and address. 61-11-503, MCA.
Are motor vehicle accident records public?
No. The Highway Patrol and most other law enforcement agencies refuse to divulge
these reports, citing 61-7-114 MCA, which says these reports are for the “confidential” use
of government agencies. The reports may be examined and copied by persons named
in the reports or involved in the accident.
Are birth and death certificates public?
The 1999 Legislature amended 50-15-121 MCA to make death certificates public.
However, the federal Health Insurance Portability and Accountability Act of 2003
forbids the release of the cause of death until two years after the death.
Birth certificates are not available to the public until 30 years after date
of birth. Are applications for marriage public record?
No. The attorney general ruled in 2000 that this information is not available
to the public. His opinion carries the force of law until it is overruled by
the courts. Marriage licenses themselves are public documents.
Are votes cast by legislators on the issue of calling a special session of the
Legislature available to the public before all votes are received?
Yes. The 1999 Legislature amended 5-3-106 MCA to end the practice of keeping
legislative poll results secret until all votes are received.
Are election canvassing records open to the public?
Yes. 13-15 MCA says the canvass of all votes is open to the public. This applies
to any general, regular, special or primary election held by a county, municipality,
or special district. 13-1-101(7), 13-1-101(19) MCA. School elections are generally
bound by the same laws. 20-20-102 MCA.
May the public inspect competitive bids on government Projects before a contract
is awarded?
Yes. The 1999 Legislature amended 18-4-304 MCA to provide public inspection of
bids after they are opened, subject to some restrictions.
Is the public entitled to examine settlements of lawsuits if they involve government
agencies?
Yes. The Montana Supreme Court ruled in 2000 that the family of a murdered Helena
woman, Tamara Pengra, had no right to privacy in the amount of money government
paid to settle the family’s lawsuit against the state. The next year the
Legislature passed 2-9-303, MCA, which says court settlements involving state
agencies are public, and 2-9-304, MCA extends this to the state’s political
subdivisions.
Are jail occupancy records public?
Yes. Under 44-5-102(13)(e)(iv) MCA, initial arrest records, initial offense reports
and jail occupancy rosters are all public information.
Are salaries of government employees public information?
Yes, under 43 Att’y Op. 119 (1988)
When are public records open to inspection?
2-6-104 MCA, requires that public records be open to inspection by any person
during office hours. 2-16-117 MCA sets office hours from 8 a.m. to 5 p.m., Monday
through Friday, unless otherwise provided by law.
Can a state agency charge for copies of public documents?
Yes. 2-6-102(2) MCA, requires an agency to provide a “certified copy” of
a document “on payment of legal fees therefor.” The language, according
to a 1996 memo written by then Gov. Marc Racicot, is arcane and was written at
a time when a clerk actually copied by hand a document and certified its authenticity.
This statute may still, however, be used as authority for charging a reasonable
fee to cover the costs of the agency (usually the cost of labor and other resources
associated with finding and copying the document) when copies of public documents
are made. Racicot’s memo suggested as a guideline a charge of 10 cents
per page.
FEDERAL AGENCIES
The federal Freedom of Information Act applies to every agency, department, regulatory
commission, government-controlled corporation and “other establishment” in
the federal government’s executive branch. FOIA does not apply to Congress,
state agencies that receive federal funds or federal courts.
FOIA covers all records in the possession or control of a federal agency. If
you ask for records and are refused, you may formally request them by writing
a letter to an agency. Every federal agency covered under the act has to designate
an FOIA officer to handle these requests. Members of the news media may ask to
be exempt from search fees and will not be charged for 100 pages of copies. Others
requesting documents under FOIA get two hours of free search time and 100 pages
of copies without charge.
The government may refuse FOIA requests for nine reasons: national security,
internal personnel rules, information exempted by other federal laws, trade secrets,
internal agency memorandums, personal privacy, investigations by law enforcement,
banks regulated by the federal government and oil and gas well information.
A rather complete booklet on how to use FOIA is available from the Reporters
Committee for Freedom of the Press in Arlington, Va. See also www.rcfp.org.
COURTS
What laws government access to courts and court records?
Most of the law governing law enforcement records can be found in the Montana
Criminal Justice Information Act, Title 44, Chapter 5 of Montana Code Annotated.
This act spells out what can and cannot be released.
Laws regarding the release of information about juvenile criminal proceedings
are found in Part 6 of the Youth Court Act, Title 41, Chapter 5, MCA.
Further, certain landmark cases in Montana courts, the “Right to Know” provision
in the Montana constitution and the First and Fourteenth Amendments to the U.S.
Constitution guarantee the public the right to attend criminal proceedings except
in the most extreme cases. As a general rule, closure must be a last resort,
taken only after 1) a showing of the compelling interests that demand it and
2) that less restrictive alternatives are unavailable.
When are court documents officially public?
Once a document is filed in court,
any member of the public can have access to it unless the judge has ordered otherwise
in certain special and rare situations. That means, for instance, that information
cannot be withheld because the parties involved have not been served.
Are youth court records afforded any special protection under Montana law?
These records are generally accessible, but some records are still restricted
by the law. Specifically, 41-5-212 MCA reads: “Reports of preliminary inquiries,
petitions, motions, other filed pleadings, court findings, verdicts, and orders
and decrees on file with the clerk of court are public records and are open to
public inspection until the records are sealed under 41-5-216.” Youth court
records and law enforcement records pertaining to a youth covered under this
law are sealed three years after supervision for an offense ends, but may be
unsealed if a new offense is committed.
Certain records remain private under the court’s discretion. Under 41-5-215
MCA, these include “Social, medical, and psychological records, youth assessment
materials, predispositional studies, and supervision records of probationers.”
Under the old law, these types of records were only opened to the public if the
juvenile were charged with an offense that would be a felony if the juvenile
were an adult. Only then were court proceedings to be open to the public. This
rule also applied to law-enforcement records.
Can a newspaper or broadcaster be punished for printing the name of a youth as
long as the information was lawfully obtained?
No. Laws prohibiting the dissemination of lawfully obtained information would
amount to an illegal prior restraint and are expressly forbidden under a number
of U.S. Supreme Court cases, including the landmark Florida Star vs. B.J.F,491
U.S. 524, 16 Media L. Rep. 1801 (1989). In that case, the court reversed a ruling
against the Florida Star, a Jacksonville weekly, for publishing the full name
of a rape victim in violation of a state statute.
Also, in Smith v. Daily Mail Publishing Co., 443 U.S. 97,5 Media L. Rep. 1305
(1979) the Supreme Court ruled that the government may constitutionally punish
a newspaper for publishing lawfully obtained, truthful information about a matter
of public significance only if the government can show that punishment is “narrowly
tailored to a state interest of the highest order.”
Are presentence investigation reports public record?
Not without a court order. According to 46-18-113 (1) MCA, “All presentence
investigation reports must be a part of the court record but may not be opened
for public inspection.” Further, such confidential criminal justice information
is restricted to criminal justice agencies, those authorized by law to receive
it and those authorized to receive it by court order.
However, both of these statutes have provisions that allow a district judge to
authorize release of the information. Subsection 2 of 46-18-113 specifically
states that the court can allow access to others as it considers necessary.
44-5-303 allows a judge to enter a court order allowing others to have access
to confidential criminal justice information upon finding that the demands of
individual privacy do not exceed the merits of the public's right to know. There
have been instances where the courts in Montana have released otherwise confidential
criminal justice information. For example, in a case brought by the Great Falls
Tribune, the names of police officers accused of using excess force were released.
Great Falls Tribune v. Cascade County Sheriff, 238 Mont. 103, 775 P..2d 1267
(1989).
In another case brought by the Bozeman Chronicle, the investigation materials
concerning an alleged rape at the police academy were ordered released. Bozeman
Chronicle vs. City of Bozeman, 260 Mont. 218, 859 P2d 435 (1993). In a case brought
by the Allstate Insurance Company, the criminal investigation records of a person
who allegedly committed suicide were ordered released. Allstate Insurance Co.
v. Billings, 239 Mont. 321, 780 P. 2d. 186 (1989).
More recently, in an extremely high profile case involving former Gov. Judy Martz,
a district judge ordered the release of some of the investigative reports into
the crash that took the life of state House Majority Leader Paul Sliter. Shane
Hedges, a top aide to Martz, was driving the car that crashed, the information
released to the public by the judge said both Hedges and sliter were drunk at
the time. The judge released the information after it had been agreed to by lawyers
for the news media, Sliter’s widow and the Lewis and Clark County attorney.
Can a judge restrict access to television cameras in the courtroom?
3-1-111 MCA allows the district court judge to control the “orderly conduct
of proceedings.” However, Canon 35 of the Canons of Judicial Ethics allows
closure only when the judge finds that broadcasting would “substantially
and materially interfere with the primary function of the court.” The judge
also must put into the record the reasons. It also sets forth a specific procedure
for the reporter to follow, i.e., make a direct request to the judge.
Are pretrial hearings and suppression hearings open to the public?
Generally, yes. Under 46-11-701 MCA, pretrial proceedings in criminal cases are
generally open to the public. If it appears to the judge that pretrial publicity
may threaten the right of the defendant to a fair trial, the judge is first supposed
to seek the voluntary cooperation of the news media in delaying dissemination
of the potentially prejudicial information until the impaneling of the jury or
earlier at the discretion of the judge. If such voluntary cooperation cannot
be agreed to, the judge is then supposed to hold a hearing on whether the hearing
on the proceeding should be closed.
The judge is supposed to close suppression hearings and seal the record only
if the dissemination of information would create a clear and present danger to
the fairness of the trial and the prejudicial effect cannot be avoided by any
reasonable alternative means.
In the notorious case of accused child-killer Nathaniel Bar-Jonah, whom prosecutors
said butchered his victim and fed body parts in meals to unsuspecting neighbors,
a state district judge in 2001 refused broad defense motions to seal court documents,
close pretrial hearings and issue a gag order. Ruling after the news media intervened
to keep the case open to the public, Judge Kenneth Neill of Great Falls found “While
the media coverage of this case and the defendant has been intense, the defendant
has failed to demonstrate a clear and present danger to the right of a fair trial…” Defense
attorneys again asked for a gag order, but later withdrew the request.
May judges close selection of juror (voir dire) proceedings to the public?
Usually not. In the murder trial of Gene Austad in Great Falls, a district judge
closed the questioning of possible jurors. The Great Falls Tribune appealed to
the Montana Supreme Court, which said the proceedings should be open and would
not impair the defendant’s right to a speedy trial. Great Falls Tribune
v. District Court, 186 Mont. 433, 608 P2d116 (1980)
Do citizens receive their attorney fees if they successfully sue to gain access
to public documents and government meetings?
A plaintiff who prevails in an action in district court to enforce his rights
under Article II, Section 9 of the Montana Constitution may be awarded his costs
and reasonable attorneys’ fees at the discretion of the judge. 2-3-221
MCA.
Should hearings on whether a defendant is competent to stand trial be closed?
Probably not. Again, Montana's laws (and subsequent court rulings) carry the
presumption that any criminal proceeding will be open, unless a compelling argument
is made that the defendant's right to a fair trial is threatened.
Should the Montana Supreme Court’s closed-door meetings be open
to the public?
Probably. It appears the Montana Constitution says that these gatherings should
be open. But while some candidates for the high court and members of the court
favor opening the sessions, a majority of the court has declined to do so.
If sued, the court might have to decide if its own conferences should be public.
Are coroner’s inquests open to the public?
Yes. 46-4-201 MCA establishes that a coroner’s inquest must be run like
a court. 3-1- says that all court proceedings in Montana are open to the public,
with almost no exceptions. The purpose to an inquest is to clear the air in
the case of a controversial death. To close the inquest would defeat that purpose.
What should reporters do if they think a court proceeding is being improperly
closed?
Montana FOI wallet cards (available from the FOI Hotline) include a statement,
to be entered into the court record as soon as there is a motion to close a
criminal proceeding in a Montana court (see below):
Your Honor, may I address the court?
My name is I'm a reporter for ________
I respectfully object to closing this proceeding to the public and the news
media.
The Montana Supreme Court in Tribune vs. District Court, and Smith vs. District
Court, ruled that the "right to know" provision of the Montana Constitution
and the First and the Fourteenth Amendments to the U.S. Constitution guarantee
the public the right to attend criminal proceedings except in the most extreme
cases.
These decisions hold that the closure must be a last resort, taken only after
(1) a showing of the compelling interests that demand it, and (2) that less
restrictive alternatives are available. Before you rule on this motion to close
these proceedings, I request a recess to let me consult with my employer and
my lawyer. Thank you.
Written in 1996 by Kyle Wood of the University of Montana School of Journalism.
Revised in 2000 by John Kuglin of The Associated Press. Revised again in 2005
by Lucas Tanglen and John Kuglin.