Montana Open Government Lawyers

Open government is critical to the functioning of our democracy. Both the State of Montana and the Federal Government protect their citizens rights to participate in governmental decision-making and their right to know.

Montana’s constitution ensures that governmental operations are open to the public, that the public can participate in decision making, and that public records are accessible to the public. To that end, the Framers of the Montana constitution used broad terms to protect Montanan’s access to government:

  • Right of participation. The public has the right to expect governmental 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.

  • 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.

Similarly, the Freedom of Information Act provides that federal agencies, upon request, must provide public information to the public.

Montana’s Right of Participation

Montana’s citizens have a right to participate in the operation of agencies prior to a final decision being made. To effectuate this right, the Montana legislature crafted the Montana Public Participation Act, §§ 2-3-101 et seq, MCA. Under the MPPA, public agencies, which include any board, bureau, commission, department, authority, or officer of the state or local government authorized by law to make rules, determine contested cases, must provide notice of their proposed actions, and an opportunity to be heard. Similarly, public meetings must be open to the public except in limited circumstances.

As the Montana Supreme Court explains, public agencies must “provide interested persons reasonable opportunity to submit data, views, and arguments prior to making final decisions, and develop procedures permitting and encouraging public participation in such decisions.” Citizens for Balanced Use v. Mont. Fish, 2014 MT 214, ¶ 10, 376 Mont. 202, 206, 331 P.3d 844, 846.

When a public agency fails to provide notice, an opportunity to be heard, or an open meeting, the person who was deprived of those opportunities may bring suit to enforce their constitutional right to participate. If successful, the rule or regulation may be set aside or voided by the court.

If you need help addressing a violation of your right to participate, contact our Montana Open Government lawyers.

Montana’s Right to Know

Montanans enjoy a broad constitutional right to review public documents and observe agency deliberations. And “every person has a right to examine and obtain and obtain a copy of any public information in this state.” § 2-6-1003(1), MCA. This right extends to information held by “the executive, legislative, and judicial branches of Montana state government, a political subdivision of the state, a local government, and any agency, department, board, commission, office, bureau, division, or other public authority of the executive, legislative, or judicial branch of the state of Montana.” § 2-6-1002(10), MCA.

To access public information, a person must simply request it from the appropriate public body. Once requested, the agency must respond in a timely manner by either producing the information or providing an estimate of the time it will take to fulfill the request and any fees that may be charged. In either case, a response is required. And when a public agency fails to provide a response, the agency may be liable for its failure.

Our Montana Open Government lawyers are here to help. If you need assistance drafting records requests or litigating to obtain the requested documents, we may be able to assist you.

Over the past 30 years, MSWD Open Government Lawyers have successfully litigated the Right to Know. Some of our successes include:

  • Bozeman Daily Chronicle v. City of Bozeman Police Dep't, 260 Mont. 218, 859 P.2d 435 (1993)

    With some qualifications, the public has a right to inspect public criminal justice information including the name of a police officer who allegedly sexually assaulted a cadet, and that the prevailing party was entitled to its attorney fees.

  • Krakauer v. State, 2016 MT 230, ¶ 4, 384 Mont. 527, 381 P.3d 524 (amicus counsel for Student Press Law Center, Montana Newspaper Association and others.

    Established that out of state journalists may pursue claims for violations of Montana’s constitutional right to know.

  • Bitterrooters for Planning, Inc. v. Mont. Dep't of Envtl. Quality, 2017 MT 222, ¶ 44, 388 Mont. 453, 401 P.3d 712.

    The public has a right to know the name of an applicant for a wastewater discharge permit.

Freedom of Information Act

Like Montana’s constitutional right to know, the Freedom of Information Act provides transparency in public affairs.

The federal government provides a simplified way to request information from many agencies through its FOIAonline.gov website. Agencies participating in the website include:

  • Chemical Safety and Hazard Investigation Board

  • Department of Defense

    • Office of Inspector General

    • Defense Logistics Agency

    • Department of the Davy

  • Department of Justice - U.S. Parole Commission

  • Environmental Protection Agency

  • Federal Communications Commission

  • Federal Labor Relations Authority

  • General Services Administration

  • merit Systems Protection Board

  • National Archives and Records Administration

  • National Labor Relations Board

  • Nuclear Regulatory Commission

  • Pension Benefit Guaranty Corporation

  • Small Business Administration

  • Surface Transportation Board

  • Customs and Board Protection

  • Department of Commerce

  • Department of the Interior

If the agency you need information from an public entity that is not on the above list, you may be able to find information on the agency’s website or reach out to our Open Government Attorneys for help.

Once you submit your request, the agency has 20 business days to comply with your request, or notify you of its denial. If the agency fails to provide you the documents, you may be entitled to bring suit seeking turnover of the documents as well as attorney fees. Our experienced Open Government Lawyers can assist you in litigating FOIA matters.