FOI Fallout

Freedom of Information audit reveals problems accessing public records in Montana and even more records could be shut off

Photo by Garrett Cheen Montana Attorney General Mike McGrath, in his office at the State Justice Building in Helena, wants to restrict access to police reports.

By Hilary Oitzinger

While last summer’s test of open government laws may have increased public interest and led to pledges of greater compliance, Montana’s first FOI audit may also have touched off a reaction that will be felt in Helena at the next legislative session.

“The media invited itself into the fray without, to date, offering effective and adequate resources to actually resolve the problems raised by the audit,” wrote John Shontz in a letter to John Kuglin, chairman of the Montana Freedom of Information Hotline and bureau chief for The Associated Press. Shontz resigned in April as Montana’s FOI attorney.

The problem, as he outlined it, is that people are calling to complain about being unable to obtain information only to be told their only recourse is to file a lawsuit, something most people can’t afford to do. In the meantime, government agencies are using their substantial resources to push for restrictions to the public’s right to know.

The government backlash will lead to the introduction of a slew of new laws to protect the right of privacy during the 2005 legislative session, Shontz predicted.

“The publicity surrounding the audit awoke the proverbial sleeping giant; those that kicked the giant awake are, it appears to me, obligated to pay the cost of beating him back into submission,” he wrote.

Sections 8 and 9 of Article II in the Montana Constitution express Montanans’ right to access: the right of participation and the right to know. The provisions historically have collided with Section 10, the right of privacy, yet the right to know has prevailed except in very narrow circumstances.

Montana has a constitution that, taken on its face, establishes a clearer case for open meetings and open records than most any constitution in the country, said Jim Fall, the executive director of the Montana Newspaper Association, “The problem is that there is no penalty for violation.”

In January 2003, the Montana FOI Hotline Board proposed the State Open Records Project, Montana’s first statewide survey of open government to test the right to know and right to access laws in practice. The surveyors, recruited by newspaper organizations, local papers, and hotline board members, entered government offices in each of Montana’s 56 counties and requested six documents: jail occupancy rosters, sheriff’s department incident reports, the amount of property taxes the chairman of the county commission paid, the salary of the superintendent of the largest school district in the area, minutes of the most recent meeting of the city council or town commission, and finally, listings of recent court cases filed in district court and a randomly selected court file.

Throughout the state, 81 percent of requests were carried out. A high rate of compliance by most county officials was offset by sheriff’s offices, which complied with only 41 percent of requests for last 24-hour incident reports. A slightly higher 45 percent complied with requests for jail rosters.

“The vast majority did comply with the law gracefully and forthrightly and for that they deserve a pat on the back for complying and knowing their responsibility,” said Bob Anez, statehouse reporter for the Montana bureau of The Associated Press.

Most officials in Montana take seriously their responsibility to provide public information, said Mike McInally, editor of the Missoulian.

The auditors had to be unknown and keep their identities secret, in order to determine the access officials afforded the general public. If asked, the surveyors could identify themselves and say that they were gathering information for a series of stories.

Anez and Kuglin compiled the results in their Helena offices. On Oct. 22, 2003, more than three-dozen newspapers and broadcast stations ran the results of the survey and accompanying stories.

While the 90 percent compliance rate–omitting law enforcement–was encouraging, only three counties, Gallatin, Lincoln and Teton, demonstrated 100 percent compliance, Anez said. Nearly half of the 56 counties refused jail rosters. In all the states that have conducted such audits, law enforcement has had the worst record for compliance.

“The irony there can’t be ignored that law enforcement wasn’t following the law,” Anez said. “Those whose primary function is enforcement of the law seemed arrogant and even uncaring toward it.”

Other counties made a distinction between the newspaper and the public, allowing reporters more leeway, Anez, said. One county sheriff said the auditor would need a court order to receive copies of incident reports. Others said they knew the law and refused anyway.

One auditor, Eric Newhouse, gained instant access in Chester, seat of Liberty County where “everyone knows everyone.” They didn’t know him until the superintendent’s secretary yelled his name in the courthouse lobby. As a Pulitzer Prize winner, Newhouse’s name was easily recognizable. One woman told him, “Well if you’d have just said you were with the Tribune!”

“If you go in with a press pass you go in with that immunity,” said Newhouse, who is the special projects editor of the Great Falls Tribune. The FOI Hotline board designed the test to prevent “press privilege” from clouding results for ordinary citizens.

Since the news stories about the audit ran all across the state in October, some attitudes about freedom of information have changed, Marquand said. The news media have been attending law enforcement meetings to discuss the implications of the audit, such as the County Coroners Meeting in Helena in December and the Sheriff’s and Peace Officers Association meeting in Lewistown in January.

“I think they wanted to be in the same room with us and tell us how they felt and I think we wanted to explain to them why we did it and why it is important to keep information public,” Marquand said. “The hotline had been wanting to let them know about open records for years and just had never made it on their agenda. The audit pushed that door open.”

In Lewis and Clark County, the sheriff’s department charged five dollars a page for incident reports. That would change, Sheriff Cheryl Liedle pledged.

“We’re not doing our job very well if we’re not releasing public information to the public,” said Liedle.

As of October 24, two days after the audit results appeared in papers across the state, the county jail roster became public information and, despite some reluctance from the police department, the office will soon charge only production costs for incident reports, Liedle said.

“We have to make sure our fees if we have them are reasonable,” Liedle said. “Law enforcement cannot function, we cannot do our job without you, the media, and vice versa; we need to realize that.”

The sheriff’s department has improved in the other areas that needed improving, such as posting jail rosters, Liedle said.

Policies among law enforcement officials have changed as well. When the Daniels County Sheriff’s office was surveyed last summer, Sheriff James P. Kramer refused to hand over the police log without a court order. The surveyor asked for the 9-1-1 log not the police log, he said. However, that office now has a “sheriff’s log” available to the public that includes the police log and the 9-1-1 log, Kramer said.

“Now what I do is when we have a call the first thing we ask the person is ‘do you want this to be public knowledge,’ most of them say no,” Kramer said. “You know most of these people we deal with are on the bottom of the economic stature and why should a guy add more misery to their misery by writing out their address and phone number.”

Kramer says that since the audit no one has requested to see the police log. If anyone does call or come by requesting information, such as the newspaper, he calls the County Attorney and makes an appointment to discuss what can be kept confidential.

“We’re at least trying now,” Kramer said. “It isn’t that I don’t want to give out information but to a certain point we have to keep some of it to ourselves to work with the information to know whether that information is true or not too.”

Other changes may only result from the news media going into court to enforce the people’s right to know or supporting others who are bringing charges against governmental entities for refusing documents or closing meetings.

“The media has always been a watchdog on the government,” said Ian Marquand, until recently the National Freedom of Information chair for the Society of Professional Journalists and special projects coordinator for the Montana Television Network/KPAX-TV Missoula. “One of the earliest missions of the media is to observe, question, and offer counterpoint to what the authority is about. Sometimes we play that role in an adversarial way.”

Ninety-nine percent of the time the courts are going to rule in favor of maintaining access, said Mike Meloy, who was the only First Amendment lawyer in Montana when he began his private practice. He is now the state’s FOI Hotline attorney.

The FOI Hotline and the Havre Daily News, among seven other plaintiffs, filed suit March 10, 2004 against the city of Havre and several police officials. The lawsuit comes after Olson and others blackened out information on police reports about an underage drinking party.

According to the complaint filed, the information blackened out includes the names of six minors cited for possession of alcohol as well as two witnesses’ names.

The redacted portion pertains to a conversation between Olson, an investigating officer and a family member who, according to the suit, may have been his daughter and who had been to the house where the party took place but was not cited for underage drinking.

“The lawsuit will take at least a year in the state district court,” Kuglin said. “Then eventually the decision will probably be appealed to the State Supreme Court.”

In the meantime, Attorney General Mike McGrath has taken action on two different fronts to restrict information in initial offense reports.

His office’s first response came after the Havre Daily News threatened a lawsuit in fall 2003 against the police department regarding the department’s practice of withholding sexual assaults from police dispatch logs.

In November, the police department agreed to include sex crimes on the dispatch logs and to begin providing initial incident reports in the lobby for public viewing. The incident reports, however, will omit the names of victims and suspects unless the suspect has been charged or is a public threat. Shontz contends that the names of offenders listed in police calls are public information.

In response to Shontz’s comments, Olson requested an opinion from Attorney General Mike McGrath to clarify the law. While it is practically unheard of for the Attorney General to issue an opinion on an issue when a court case is pending, McGrath agreed to issue an opinion because the question is not exactly the same as that before the Havre District Court in the pending lawsuit against the police chief, said Lynn Solomon, the public information officer for McGrath’s office.

The opinion, released April 1, states that it is not legal to withhold all of a victim’s information from public police documents but that it is legal to withhold their address, phone number and place of employment upon request of confidentiality. Crime scene locations may be released even if they suggest a victim’s identity or residence. Opinions of the attorney general hold the force of law unless they are contradicted in the courts or through legislation.

In May, McGrath proposed new administrative rules that would require names of witnesses to crimes to be withheld “[if] the witness is involved in the case only by virtue of their employment or has requested confidentiality.”

“In other words,” noted the AP’s Kuglin, “the names of cops, doctors, coroners, firemen, arson investigators, ambulance drivers, etc. would be redacted. It would make it very difficult for the media to report on crime in Montana.” Other witnesses would probably be presented with a form to opt-out of being named on the report.

The new rules would also restrict access to juvenile records, requiring them to be sealed three years after supervision for an offense ends.

Assistant AG Ali Bovington told Kuglin that the rule change was prompted by the FOI audit and circulated among police and sheriff’s departments. News media were contemplating a challenge to the new rules.

In another area of government, however, the state Supreme Court handed down a resounding open-government victory for the public and press in early May. The Associated Press and more than a dozen Montana newspapers and news media associations had challenged the Commissioner of Higher Education’s closure of meetings between himself and senior state university administrators. As Justice John Warner noted, the policy committee “deliberated, discussed and debated a wide variety of issues” from tuition and fees and salary increases to information technology policies. “How the University System conducts its business, both academically and administratively…are public matters,” Justice Warner wrote for a 5-2 majority in Associated Press v. Crofts.

byJohn Watson

Lawsuits and media action such as the FOI audit have also increased the public visibility of the issue of open government. The FOI Hotline has seen an increase in calls since the media released the audit results. In November it averaged one call a day. In December, that doubled to two calls a day, Shontz said. The average was once eight calls per month.

“By and large it’s had a tremendous impact,” Shontz said. “In years past, the people calling the Hotline were from the media and now, in March, for the first time, there were more calls from private citizens than from the media.”

The audit results “crystallized some attitudes; we’re finding that the public is demanding more openness,” Shontz said. “At the same time, however, there is a resistance to the public’s right to know that is manifesting itself in the political world.”

“Government officials in Montana are pretty aware that if they have a document, the public has a right to see it,” Meloy said. “As long as the FOI Hotline and studies like this one call officials on keeping things secret they will continue obeying the law. Ultimately it forces government officials to toe the line and if you don’t have that provision it’s easier for them to keep things secret.”

Education is key, Melody Martinsen said. The hotline needs to continue working with potential users of the book and keep the subscription service running for updates because case law changes and statutes change.

“Most people out here are not violating the law on purpose,” said Martinsen, who has edited the Choteau Acantha since 1990. “Most of the time they’re unfamiliar with or misinterpreting the law.”

Newsrooms, through appropriate resources, need to keep reporters and editors familiar with the statutes, Martinsen said.

She said reporters need to have continuous dialogue with those sources that are subject to the statute.

According to feedback given to the media by many of the public officials who were in violation, the audit has opened eyes and public employees are realizing the law much more than before, Anez said. He hopes for a greater effort by those responsible professional groups to remind members of the law.

The education effort needs to go beyond the sheriff and police departments, said Cheryl Liedle, sheriff of Lewis and Clark County since 2000. The problem begins much earlier.

“In law enforcement school you are taught ‘Whatever you do don’t talk to the media,’” Liedle said. “That’s how we’re trained; we need to break down those barriers and work together.”