Most state agencies presented with public records requests will have clear deadlines for compliance if Senate Bill 232 clears the Legislature and the governor’s desk.
The likelihood of both of those things happening is looking good: SB 232 sponsor Sen. Janet Ellis, D-Helena, worked with Gov. Greg Gianforte to develop a record request framework that both parties could live with, and an amended version of the bill unanimously passed the Senate March 2.
During a Feb. 22 hearing before the Senate State Administration Committee, Ellis read Article 2, Section 9 of the Montana Constitution, which holds that “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.”
Ellis said that constitutional right to know is great, but absent clear deadlines in state law, there’s no consistency in its application. Some public information requests are fulfilled within a month, she said, while others can languish for a year.
Ellis explained that Senate Bill 232 was established with the intention of providing concrete deadlines.
The original version of SB 232 would have required executive branch agencies to produce requested documents within 20 working days of the acknowledgment of their receipt. State employees would have an additional 20 working days to comply with more complicated requests, so long as the requester signed off on the extension.
But the original version of the bill also came with a sizable fiscal note. The state’s budget director estimated it would cost more than $4 million annually to comply with SB 232’s directives, mostly to obtain staffing and IT-related equipment to find and review records and manage the requests.
By working with the Gianforte administration to change those timelines, Ellis was able to bring the fiscal note down to $0, but that adjustment came with its own cost in timeliness. Per the amended version of the bill, an agency has five days from acknowledging receipt of a request to produce a single, clearly identifiable document, 90 days to comply with more complicated requests, and up to six months to fulfill yet larger and more involved requests.
In addition, Ellis pointed out that the revised edition of SB 232 allows more time for the secretary of state, Justice Department, superintendent of public instruction, and state auditor to adhere to the bill’s requirements. It is now stated that these agencies and offices are not obligated to fulfill SB 232’s directives until the autumn of 2025.
According to Ellis, the test deadline bill could be extended by future Legislatures to encompass various other sectors of government, such as the Montana University System, the legislative branch, and local governments.
SB 232 comes as Gianforte awaits a judicial decision on a prominent record request lawsuit.
The Montana Environmental Information Center filed a request in November 2021 for communications between Gianforte and Hecla, an Idaho-based company seeking to open two mines in Lincoln County. After a Gianforte attorney responded that the requested material was precluded from release by “executive privilege,” MEIC sued. The judge in that case has yet to issue a final order, but a recent ruling in a related lawsuit suggests an outcome favorable to MEIC could be coming.
Lewis and Clark County District Court Judge Kathy Seeley wrote in a December 2022 order that the Montana Supreme Court has consistently held that the right to know should be afforded the “highest degree of protection.” She directed the state to turn over forms relating to the executive branch’s monitoring of bills before the 2021 Legislature.
SB 232 also comes as the governor is pitching lawmakers on his plan to facilitate more timely responses to record requests. His budget includes approximately $400,000 annually to create a new office, the Office of Public Information Requests, replete with three full-time staff.
According to the revised fiscal note of SB 232, the OPIR will collaborate with state agencies to streamline information requests. This will involve centralizing tasks that can be centralized, utilizing enterprise software to track and manage requests, establishing standardized charges for requests, and generating reports or dashboards for requests.
In addition to the governor’s budget, there is a provision of $2 million allocated for an IT system that will facilitate electronic discovery of information requests. During the SB 232 hearing, the Montana Department of Environmental Quality, acting as an informational witness, revealed that they have been utilizing a software system for the past three years to handle around 900 annual record requests.
According to a spokesperson for Gianforte, in an email response to Montana Free Press, both Gianforte and his team have been actively involved in the improvement of record request procedures.
Kaitlin Price wrote that the governor and his staff have been collaborating with legislators on SB 232 to uphold Montanans’ constitutionally protected right to information. Additionally, the governor’s office has been implementing measures, under the governor’s guidance, to enhance the state’s system for handling records requests.
This story was updated March 6, 2023, to include post-publication comment from Gov. Greg Gianforte’s office.
