MSWD Attorneys secure win for the public right to know

On Friday, June 4, 2023, MSWD attorneys Rob Farris-Olsen and Kim Wilson secured a long sought win vindicating Montana’s constitutional right to know and access to public documents. Rob and Kim represented MEIC and Earthworks in their efforts to obtain communications between Montana’s Governor, Greg Gianforte, and Hecla Mining or Philips S. Baker, Jr. as well as Documents regarding the Montanore and Rock Creek Mines. The Governor refused to produce any records because there was parallel ongoing litigation. His office asserted that the documents were protected by the “pending litigation” exception to Montana’s constitutional right to know. 

Based on the Governor’s refusal, MEIC and Earthworks filed suit in May of 2022 and requested that the Court order the Governor to produce the requested documents. After a year of litigation, the Court finally issued a Writ of Mandamus ordering the Governor’s Office to produce the documents within six weeks. The judge’s order is the first case to consider, and reject the “pending litigation exception.”

In its order, the Court explained, “Thus, that the right to know does not upset those privileges that predate 1972 does not mean the government may invent privileges out of whole cloth. Nor is the governmental interest in withholding documents when “necessary for the integrity of the government,” . . . an interest in withholding documents to serve the convenience of government. Notably, the Governor has not cited any evidence from the 1972 Convention, the ratification debate that followed the Convention, or the common law that preceded the Convention recognizing a privilege against disclosure of information that is the subject of litigation. Absent some objective basis for finding the exception other than a policy one, the Court declines to find an implied limitation to the right to know.”

Concluding, the Court held that “The Governor’s Office, like any other public body, has a clear legal duty under the Constitution and the implementing statutes to honor public records requests regardless of the purpose to which disclosure will be put.” Accordingly, the Court then gave the Governor’s Office six weeks to produce the requested documents.