Text

"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."

History

Sources

1889 Montana Constitution and United States Constitution

Neither the United States Constitution nor the 1889 Montana Constitution contain(ed) a provision guaranteeing the public's right to know.See, 1889 Mont. Const. art. III: http://www.umt.edu/media/law/library/MontanaConstitution/Miscellaneous%20Documents/1889_const.pdf; U.S. Const. amend. I to amend. XXVII

Montana Statutes

The Bill of Rights Committee comments reveal that the Committee looked to previous Montana statutes favoring public access to governmental agencies: "The committee approvingly cites section 82-3401 of the Revised Codes of Montana, 1947, which provides: 'It is the intent of this act (the open meeting law) that actions and deliberations of all public agencies shall be conducted openly. The people of the state do not wish to abdicate their sovereignty to the agencies which serve them...'"

Other State Constitutions

Two other states contain similar right to know guarantees, although both were adopted post-1972:

• New Hampshire Constitution, pt. 1, art. 8 "Government...should be open, accessible, accountable and responsive. TO that end, the public's right of access to governmental proceedings and records shall not be unreasonably restricted." (Added in 1976 State Constitution, Bill of Rights, https://www.nh.gov/glance/bill-of-rights.htm )

• Florida Constitution, Art. 1, § 24 "Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect o records exempted pursuant to this section or specifically made confidential by this Constitution. This section specifically includes the legislative, executive, and judicial branches of government and each agency or department created thereunder..." (Section 24 was added in 1992 The Constitution of the State of Florida, published by the Florida Department of State, available at http://dos.myflorida.com/media/693801/florida-constitution.pdf )

Two other states have a right to know limited to specific situations. Oklahoma's Constitution, article II, § 34 provides victims of crime the right to know the status of the criminal case and the location of the defendant. Michigan's Constitution, article IX, § 23 guarantees public access to financial records. Fritz Snyder, The Right to Participate and the Right to Know in Montana, 66 Mont. L. Rev. 297 (2005)

Drafting

Delegate Proposal

No. 57 (Delegate Eck): "Section ___. No person shall be deprived of the right to examine documents or to observe the actions and deliberations of all public officials or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy exceeds the merits of public disclosure."

Bill of Rights Committee

Proposal: "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 state government and its subdivisions, except in cases in which the demands of individual privacy exceeds the merits of public disclosure."

Comments: "The committee, with two dissenting votes, and after considerable reflection, adopted this provision explicitly establishing a public right to know...Both [the right of participation and the right to know] arise out of the increasing concern of citizens and commentators alike that government's sheer bigness threatens the effective exercise of citizenship. The committee notes this concern and believes that one step which can be taken to change this situation is to Constitutionally presume the openness of government documents and operations. The provision stipulates that persons have the rights to examine governmental documents and the deliberations of all public bodies or agencies except to the extent that the demands of individual privacy outweigh the needs of the public right of disclosure...The committee intends by this provision that the deliberation and resolution of all public matters must be subject to public scrutiny. It is urged that this is especially the case in a democratic society wherein the resolution of increasingly complex questions leads to the establishment of a complex and bureaucratic system of administrative agencies. The test of a democratic society is to establish full citizen access in the face of this challenge.

The committee intends by this provision that the right to know not be absolute. The right of individual privacy is to be fully respected in any statutory embellishment of the provision as well as in the court decisions that will interpret it. To the extent that a violation of individual privacy outweighs the public right to know, the right to know does not apply. To clearly establish this point, the committee stipulated in the provision that the right to know is subject tc the demands of individual privacy.

The committee commends this provision to the Convention as a long step forward in assuring the openness in government. By creating an atmosphere of openness in government, the committee believes that confidence in government will increase and governmental operation wil1l be facilitated. Such a provision, far from limiting the effectiveness of governmental operation, establishes the prerequisite to the effective exercise of citizenship in a democratic society."

Committee on Style and Drafting

Proposal: "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 state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure."

Floor Debate

Delegate Dorothy Eck, the delegate who originally introduced Proposal No. 57, which would become Section 9, began the floor debate by reciting the Bill of Rights Committee Comments but added: "...And further to clarify this point, we added the word “clearly”, with the intention of tipping the balance in the favor of the right to know." Delegate Eck discussed the balance between the right to know and the right to privacy and provided examples of situations in which the right to privacy would outweigh the public's right to know. Delegate Eck stated "we don't intend to open up the state income tax records" however, she continued "there are times when the public right to know clearly exceeds the individual person's right to privacy," for example if an agency head is being dismissed for cause, then "the public has a right to know that reason of dismissal." 5 Montana Constitution Verbatim Transcript 1670-71, available at http://courts.mt.gov/portals/189/library/mt_cons_convention/vol5.pdf

Delegate Eck then discussed the role of the court and the legislature and stated that the committee understood the court "would determine what the cases are in which the demands of privacy exceed the demands of public disclosure," although some would "prefer leaving it to the Legislature" to define the exceptions. 5 Montana Constitution Verbatim Transcript 1671, available at http://courts.mt.gov/portals/189/library/mt_cons_convention/vol5.pdf

Delegate Cate motioned to amend Section 9 to add language that would have "the effect of putting the Legislature in as the arbiter of the cases excepted." 5 Montana Constitution Verbatim Transcript 1671, available at http://courts.mt.gov/portals/189/library/mt_cons_convention/vol5.pdf Delegate Cate's motion failed 56-30. 5 Montana Constitution Verbatim Transcript 1679, available at http://courts.mt.gov/portals/189/library/mt_cons_convention/vol5.pdf

Delegate Martin motioned to delete Section 9 entirely. 5 Montana Constitution Verbatim Transcript 1672, available at http://courts.mt.gov/portals/189/library/mt_cons_convention/vol5.pdf Delegate Martin's motion to delete Section 9 failed 76-14. 5 Montana Constitution Verbatim Transcript 1676, available at http://courts.mt.gov/portals/189/library/mt_cons_convention/vol5.pdf

Delegate McDonough then asked Delegate Dahood whether Section 9 would "allow a defendant in a criminal case more leeway and more power than he has now to examine the records of the County Attorney's office relative tot he case that he's being tried for?" Delegate Dahood responded that he did not think that Section 9 would give a defendant that power because "all rights have to be balanced against a police power." 5 Montana Constitution Verbatim Transcript 1679, available at http://courts.mt.gov/portals/189/library/mt_cons_convention/vol5.pdf

Delegate Dahood was also asked by Delegate Heliker whether Section 9 would apply to corporations, and Delegate Dahood responded that "An individual, in my judgment, would not be a corporation." 5 Montana Constitution Verbatim Transcript 1680, available at http://courts.mt.gov/portals/189/library/mt_cons_convention/vol5.pdf

After the defeat of the Cate and Martin motions and the questions posed to Delegate Dahood, Section 9 was adopted. 5 Montana Constitution Verbatim Transcript 1680, available at http://courts.mt.gov/portals/189/library/mt_cons_convention/vol5.pdf

Ratification

Vote

The Right to Know was ratified by the people of Montana on June 6, 1972, as part of the ratification of the 1972 Constitution. Montana Resources: Constitutional & Statehood, http://courts.mt.gov/Library/mr#69845105-constitutional--statehood

1972 Voter Information Pamphlet

The Proposed 1972 Constitution for the State of Montana Official Text with Explanation (Voter’s Information Pamphlet) highlighted the proposed documents new protection for the Right to Know, adding that the protection extended to the right to “attend meetings of public agencies and to examine the agency’s records.”The Proposed 1972 Constitution for the State of Montana Official Text with Explanation (Voter’s Information Pamphlet): http://www.umt.edu/law/library/files/1972voterspamphlet The Voter’s Information Pamphlet explained the Right to Know as a “[n]ew provision that government documents and operations be open to public scrutiny except when the right to know is outweighed by the right to individual privacy.”Voter’s Information Pamphlet: http://www.umt.edu/law/library/files/1972voterspamphlet

Montana News & Unofficial Commentary

The right to know garnered widespread attention and comment, with the major Montana newspapers publishing editorials opposing the Constitutional Convention's adoption of Section 9. The newspapers saw Section 9 as providing government agencies and officials the ability to prevent public and media access to governmental records and meetings. Section 9 was also defended in the news media, primarily by delegates themselves.

• Newspaper Supplement. A supplement was printed in many Montana newspapers detailing the proposed 1972 Constitution and providing the following description of Section 9: "Of the sections, sections 8 and 9, the Right of Participation and the Right to Know, elicited the most discussion and debate in the Convention. A principle vital to a democratic society is the belief that activities of government at all levels should be opened to public examination. Those who supported the adoption of these two sections in the Convention believed that they are important in opening government to greater public scrutiny and that they could be vehicles for producing a new openness into our political system. Those who opposed the adoption of these two new sections did so largely on the ground that they could not see how they were going to work out in practice. The fact of the matter is that we will probably need considerable judicial guidance before we know exactly how these provisions will be applied in the future." 1972 Montana Constitution Newspaper Supplement, Campbell Collection, available at http://www.umt.edu/media/law/library%5CMontanaConstitution%5CCampbell/1972MTConstNewspaperSupp.pdf

• The Montana Standard, "State's Newspapers Flail 'Ominous' Right to Know Issue." "Four of Montana's largest daily newspapers have leveled strong editorial page attacks against 'right to know' provision adopted by the Constitutional Convention." State's Newspapers Flail 'Ominous' Right to Know Issue, Brown Collection at *174, available at http://www.umt.edu/law/library/montanaconstitution/brown.php

• Charles S. Johnson, "Right to Know vs Privacy at Issue." In a newspaper article published January 28, 1972, associated press writer Charles S. Johnson covered Daniel J Foley's testimony to the Bill of Rights Committee. Foley was chief of Lee Newspapers' State Bureau in Helena. Foley testified that the right to know could help keep government accountable and responsible, but Foley was "concerned over the right to privacy, especially in an era when bugging, wiretapping, military spying and computer banks are being used." Right to Know vs Privacy at Issue, Brown Collection at *9, available at http://www.umt.edu/law/library/montanaconstitution/brown.php

• Independent Record, "Convention Considers Public Information Limits." In the article, UM School of Journalism Professor Robert C. McGiffert criticized the right to know "as an "ill-conceived provision' which might lessen rather than enhance the public's right to know what its government is doing." Specifically, Professor McGiffert believed the exception for individual privacy would be "an invitation to public officials to deny the citizen and the press access to records and meeting." The article also stated that the Montana Press Association agreed with Professor McGiffert's proposal. Convention Considers Public Information Limits, Brown Collection at *147, available at http://www.umt.edu/law/library/montanaconstitution/brown.php; see also 'Right-to-Know' Proposal Ill-Conceived, Says Prof, Brown Collection at *151

• Independent Record, "A Freedom Abridged." This article asserted that the exception would allow officials to deny public access and could require "long and costly court case[s] each time a public official or public agency decides it has something to hide." A Freedom Abridged, Brown Collection at *155, available at http://www.umt.edu/law/library/montanaconstitution/brown.php

• Frank Adams, "Dropping 'Right-to-Know' Section Suggested" "The chairman of the constitutional Convention's Bill of rights committee says the entire "right-to-know" section recently approved should be stripped from the proposed constitution if the newspapers continue their criticism of it." Dropping 'Right-to-Know' Section Suggested, Brown Collection at *174, available at http://www.umt.edu/law/library/montanaconstitution/brown.php

• John Kuglin, "Graybill: Right to Know Misunderstood" "Constitutional Convention President Leo Graybill Jr. Saturday accused newspaper editorial writers of failing to understand the controversial right-to-know section adopted by the convention." Graybill: Right to Know Misunderstood, Brown Collection at *171, available at http://www.umt.edu/law/library/montanaconstitution/brown.php

• The Montana Standard, "'Press hasn't tried'--Graybill" 'Press hasn't tried'--Graybill, Brown Collection at *175, available at http://www.umt.edu/law/library/montanaconstitution/brown.php

• Great Falls Tribunal, "'Right-to-Know' Death 'Denial,'" "If Montana's newspapers succeed in killing the "right-to-know" provision...'they will do nothing more than deny citizens appropriate constitutional assurance of open government,' Francis Mitchell, a representative of Common Cause organization said Saturday." 'Right-to-Know' Death 'Denial,' Brown Collection at *169, available at http://www.umt.edu/law/library/montanaconstitution/brown.php

• Great Falls Tribune, "It's the public's right to know" It's the public's right to know, Brown Collection at *167, available at http://www.umt.edu/law/library/montanaconstitution/brown.php

• Gary Svee, "Reaction mixed on concealment" "A constitutional article that gives individual privacy preference over the public's right to know met wit mixed reactions Friday in Billings." Reaction mixed on concealment, Brown Collection at *176, available at http://www.umt.edu/law/library/montanaconstitution/brown.php

• Article, "Mitchell: 'Press is panicky'" Mitchell: 'Press is panicky', Brown Collection at *180, available at http://www.umt.edu/law/library/montanaconstitution/brown.php

• Article, "A surpising dispute." "It is rather surprising that members of the press and members of Common Cause found ourselves on opposite sides of an issue in the Constiutional Convention...That disagreement surfaced in the dispute over section 9." A surprising dispute, Brown Collection at *184, available at http://www.umt.edu/law/library/montanaconstitution/brown.php

• Article, "Sad day in Helena for state's people." "As it stands, the so-called right to know in the proposed Constitution's Bill of Rights, is nothing more than a right-handed gesture to an ideal while the left hand is taking it back." Sad day in Helena for state's people, Brown Collection at *189, available at http://www.umt.edu/law/library/montanaconstitution/brown.php

• Neely Pamphlet. Gerald Neely wrote a pamphlet on the 1972 proposed constitution. Regarding Section 9, Neely noted the concerns of the newspapers and stated that "The Montana legislature might be able to strengthen the sections by placing the burden of proof on an agency withholding information, and providing that officers responsible for improper withholding and noncompliance could be punished for contempt." About the effect of Section 9, Neely stated: "The provisions will undoubtedly have ramifications in the area of environmental decisions by branches of state and local government, whereby citizens can gain access to administrative decisions which will in turn trigger the judicial enforcement mechanism of the constitutional and statutory law." Gerald J. Neely, A Critical Look: Montana's New Constitution, Campbell Collection, available at http://www.umt.edu/law/library/montanaconstitution/campbell.php

Interpretation

Other Montana Constitutional Provisions

Section 8 Right of Participation: The right to know was seen as a companion right to Section 8, the right to participate.

Section 10: Right of Privacy: The right to know is often balanced against the protection for individual privacy contained in Section 10.

Cases

Becky v. Butte-Silver Bow School District

In Becky, the court held that a request under the right to know requires a t