The people who wrote the new Montana Constitution, ratified in 1972, were admirably clear on the subject of access to public records.
Under the heading of “Right to know,” in Section 9 of Article II, the Declaration of Rights, the constitution says: “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.”
Despite that clarity, countless state agencies, bureaucrats and elected officials have been dragged into court in the intervening 45 years over their unwillingness or inability to understand that simple statement of rights.
It’s a never-ending battle, and it is one that has to be fought every time. As our outgoing president said in his farewell speech last week, in reference to the U.S. Constitution, “It’s really just a piece of parchment. It has no power on its own. We, the people, give it power.”
With that in mind, let’s examine a couple of statements made recently by two Montana legislators in regard to access to public information.
The comments were imbedded in a long story written by Jayme Fraser, a Lee Enterprises State Bureau reporter, about the use of private email accounts by Montana legislators and other elected officials.
The gist of the story was that state policy regarding email use and the retention of electronic records by public officials is hopelessly inadequate. Because the policy is so unclear, many officials use personal email to conduct public business, and then say they don’t have to release any emails because all of them are “private.”
This is a complicated mess and it is going to be difficult to clean up because legislators aren’t likely to be in a hurry to make life more difficult for themselves. It’s the old fox and the hen house thing.
But that aspect of the issue is at least understandable, given the rapid changes in technology that leave us all confused from time to time, unsure how to deal with the seemingly limitless forms of communication available these days.
In the midst of this examination, however, a couple of statements stood out because they reflect a more basic ignorance of Montana’s right-to-know laws, a tendency to ignore the constitution that has nothing to do specifically with emails.
The first comment was made by Sen. Jennifer Fielder, R-Thompson Falls, who professed to believe that “the protocols and the laws” regarding the release of public records are unclear.
“I think something needs to be done to make sure the public records requests coming in are legitimate,” she said. “Some of the requests we’re seeing are coming from these politically motivated organizations out of Washington, D.C., and they’re being used more as a tool of harassment.”
The story goes on to explain that Fielder is the CEO of the American Lands Council, and that her predecessor in that position, Ken Ivory, a Utah legislator, stepped down after questions were raised about his use of a state email account to lobby on behalf of the lands council. That usage was exposed by the Campaign for Accountability, which had asked to see Ivory’s emails. The same group asked early last year to see Fielder’s emails, but she had not, as of last week, released them. Both requests were for emails from government-owned, not personal, accounts.
In the same story, Fielder makes a completely irrelevant reference to Hillary Clinton’s emails, adding that she didn’t think the motives of the Campaign for Accountability “are pure in any sense of the word.”
Fielder’s apparently willful misreading of the constitution is absurd. You don’t need protocols or laws to decide who is given access to public documents. Not when the Montana Constitution says, “No person shall be deprived of the right to examine documents.”
There is no judgment call here, not for elected officials or bureaucratic functionaries. It doesn’t matter who makes the request or whether their motives are pure or tarnished. No person is to be denied.
If Fielder’s predecessor on the lands council stepped down because he did something unethical or illegal, it demonstrates exactly why the constitution gives us access to public records. “We, the people, give it power.”
The second statement was made by former state Senate President Debby Barrett, a Dillon Republican. She made the bizarre claim that few, if any, emails generated by legislators should ever be released, whether sent from a personal or government account.
Her reasoning, if you can call it that, is that members of the executive branch, because they can make decisions on their own, are always conducting “official business.” But for a legislator, she said, official business cannot be transacted except “in a committee or a place where they can make a decision to affect their constituents.”
She’s obviously relying on the Montana Code’s definition of public information as “information prepared, owned, used, or retained by any public agency relating to the transaction of official business.”
I sincerely wish she had tried that argument out in the course of being sued for violating our right-to-know laws, rather than in a newspaper article. She could have explained to the judge that unless she had written an email during a committee meeting, or while sitting on the floor of an in-session Senate, what that email contained was nobody’s business.
You might as well argue that taking a bribe anywhere but at your desk in the Capitol is a harmless transaction unconnected to official business.
When they are sworn into office, Montana public officials take an oath in which they vow to “support, protect and defend” the state constitution.
It’s bad enough that city, county, school district and other local officials are so often unwilling to release information that is clearly public. How much worse when the people who make state laws fail in that duty, or when the only thing they defend is their own self-serving interpretation of the constitution.