Public Records

  • What is defined as a public record?

    The newly enacted §2-6-1002(13) MCA defines public records as “public information” that is “fixed in any medium and is retrievable in usable form for future reference” and has been “designated for retention by the state (or local) records committee...” It is unclear whether the conjunction “and” is a necessary prerequisite to defining a public record.

    The old law, repealed by §2-6-1002(13), defined a public record to be “the written acts or records of the acts of … public officers, legislative, judicial and executive,” or as “public records kept in this state of private writings” (with exceptions). Under the old law, any record concerning matters within the jurisdiction of the governmental entity were “public records.” This new statute is ambiguous and probably will need judicial construction. 

    The term “public information” as used in the new law is defined as “information prepared, owned, used, or retained by any public agency… ” §2-6-1002(11). 

    Note, that “public information” is not confined to “documents.” Technically, then, a public employee could be compelled to provide “information” of which he or she was aware, regardless of whether it is reflected in some document.

  • What is the most effective way to request copies of public records?

    When possible, those requesting public records should go in person to the county courthouse or other governmental entity and ask to examine the records they need, making their request as narrow and specific as possible. Then, after looking through the records, a request can be made for copies of just those documents that are needed.  Doing so will minimize the risk of the agency delaying access to the records with excuses like “too many records to look through to find yours” or “it will be far too expensive for us to do the search.”  Remember, your constitutional right is to examine a document.

  • Can a state agency charge for copies of public documents?

    Yes. §2-6-1006 permits an agency to charge for its costs in “gathering” and “copying” requested documents. The agency must give the requestor an estimate of the agency charges and is not obliged to gather or copy the document. In a 1996 memo to state agencies, Gov. Mark Racicot suggested a charge of .10 per copy as a “reasonable” charge. In no event, however can the costs exceed the actual costs incident to fulfilling the request. (§2-6-1006(3)).

  • Can a state agency charge for access to documents?

    Yes. According to §2-6-1006(3) MCA, agencies may charge expenses for accessing the document and making copies. Prior to this change, only a state agency could charge for access to electronically stored information. Under the new law both state and local agencies can charge for identifying and gathering requested records. The agency is limited to charging the actual cost “directly incident to filling the request in the most cost-efficient and timely manner possible.” But, the new law permits the agency to charge for the time spent in accessing the information and may require the requestor to pay up front. 

    If challenged, these laws will probably not meet constitutionality scrutiny, because they violate Montanans’ right to know. It should be remembered that the constitutional right regarding access to documents is the right to “examine” the document (not to take copies, thereof). While the Legislature has required entities to make copies and charge for those copies, there should be no charge for the “examination” of the record or to access it.

  • Can an agency deny access to “public information”?

    §2-6-1003 MCA guarantees public access to all “public information” except information related to “individual or public safety or the security of public facilities, including public schools, jails, correctional facilities, private correctional facilities, and prisons, if release of the information jeopardizes the safety of facility personnel, the public, students in a public school, or inmates of a facility.”

    §2-6-1003(3) permits the Montana Historical Society to “honor” restrictions imposed by “private” record donors “as long as the restrictions do not apply to public information.”

  • Can an agency deny access to “information” which is maintained by the agency, but is not “public information”?

    Maybe. Pursuant to §2-6-1002(1) MCA, “confidential information” may be withheld from public examination. “Confidential information” includes information containing “privacy interests” (which) clearly exceed the merits of public disclosure, is related to judicial deliberations in adversarial cases, is necessary to maintain the security and integrity of secure facilities or information systems owned by or serving the state, and any other information designated as confidential by statute or court decisions. However, there is no operative provision in the law expressly using the definition of “confidential information.” In other words, there is no prohibition against disclosure of “confidential information.” It probably will take a court decision to tie the definition to an operational bar on disclosure.

  • Can a request for electronic records be denied if the records are public?

    The old law, §2-6-110 MCA, provided that each person is entitled to a copy of public information in electronic format, including emails, upon payment of a fee for the time and materials used to transfer the data. Under the new law, §2-6-1006(3), the agency can insist on payment of the estimated costs of retrieval before permitting access. This provision is particularly troublesome for electronically stored records because it will be difficult to impeach the agency estimate of the time necessary to identify or retrieve the record.

  • What should the public do when a government official denies a request for a public record?

    The first step is to make sure that the request has been made to the official who has the authority to grant or deny access. If the request was made to someone who does not have the final say, then the request should be taken up the chain of command to the official who has the final authority on the matter. Then, if that person again denies access to the records, the requestor should contact the FOI Hotline for assistance.

  • In the event an agency denies access to a record, must it indicate why access is denied?

    Yes. Under §2-6-1009 MCA a public agency must provide a written explanation for denial of an information request.

  • When are public records open to inspection?

    The old law (§2-6-104 MCA) required that public records be open to inspection by any person during office hours. The new law does not have a specific provision setting forth when records may be inspected. §2-6-1006(2) requires that an agency respond to a request “in a timely manner.”

  • How quickly must the agency respond to a document request?

    §2-6-1006(2) MCA requires the agency to “respond in a timely manner.” The agency must make the record available for examination and copying or provide the requestor with an estimate of the time and charges for accessing the information if it cannot be “readily identified and gathered.”

  • Are jury lists public documents?

    Yes. Two sections of Montana law require that both grand jury and regular jury lists should be open to the public. §3-15-503 MCA addresses regular juries and §3-15-601 addresses grand juries. Under both of these laws, jury lists must be open to public inspection during regular business hours.

  • Does the right of individual privacy extend to corporations?

    No, after repeatedly upholding this notion, the Montana Supreme Court has now abandoned this position, ruling that the Montana Constitution never intended to give a privacy right to “non-human entities.” The ruling came in a lawsuit filed by news groups seeking access to power-purchase deals that a former utility had filed with the Montana Public Service Commission. The court, however, said that nothing in the state Constitution requires disclosure of trade secrets and other confidential proprietary information where the data is protected by statute. All other corporate information in the possession of a governmental agency is presumed to be open and may not be withheld based on a right of privacy. Great Falls Tribune v. Montana Public Service Commission, 2003 MT 359, 319 Mont. 38, 82 P.3d 876.

  • Are tax records public?

    It depends on the record, and this is an area of the law that is in flux. The Montana Supreme Court struck down a state Revenue Department policy that held confidential some coal tax records that formerly were public, saying the practice violated citizens’ constitutional right to know. Associated Press et al. v. Montana Department of Revenue, 300 Mont. 233, 4P3d5 (2000).

    However, the Court in Elliott v. Montana Department of Revenue, 2006 MT 267, 334 Mont. 195, 146 P.3d 741, found that the federal statute making confidential tax records of “C” corporations prevented disclosure of those records. The decision preserved the right to challenge the constitutionality of the section under state law. 

    Property tax records and assessments are both public information, but individual state income tax records (as well as corporate income tax records) are confidential because they are implicitly confidential under federal law.

  • If public officials are conducting public business via private email or private cell phones (texts), does the public have access to that information?

    Yes. 2-6-1002(11) MCA defines accessible information to include information prepared by government relating to the transaction of official business. The medium used (whether public or private email) makes no difference. If the information related to official business, it is accessible.

  • Are 9-1-1 tapes and dispatch recordings kept by law enforcement public records?

    Yes. A 9-1-1 call and its accompanying recorded dispatch record is clearly an “initial offense report” and therefore “public criminal justice information.”  See, 42 Op. Att’y Gen. No. 119 (2004). There is nothing in the law granting greater protection to 9-1-1 tapes versus other public records. Like other public documents, they may be withheld only when the demand for individual privacy clearly exceeds the merit of public disclosure. For example, if the 9-1-1 call is for a health-related emergency for a private citizen, it may not be available for inspection.

  • Are letters written to a public agency by a private individual public documents?

    Yes. Once in possession of the government, letters are public documents unless there is a sufficiently strong right of privacy that overrides the public’s right to know. In most cases, those who write letters to a government agency or body, especially to complain, do not have an expectation of privacy.

  • Can a state agency demand that the public make requests for documents in writing so they may be screened?

    §2-6-1003 MCA is the operative requirement that agencies make records available for inspection and copying. There is no condition precedent in the law requiring that the request be in writing. However, it is always good practice to put the request in writing so there is a record of the request, the date it was made and the specific records requested in the event court action is later commenced. In addition to requiring the request be made in writing, some agencies will also ask for the reasons for requesting the documents. Neither of these requirements is necessary, however, and an oral request without rationale must be honored.

  • Can the custodian of a record require the public to use a specific form to submit a records request?

    No. There is no requirement in Montana state law for the use of a specific form. (For a sample FOI request letter, please see the “Resources”.)

  • Are all personnel records maintained by a public agency confidential?

    The Supreme Court has ruled that there is no blanket exemption for personnel records. Disciplinary records of public employees vested with the public trust are publically accessible. Missoula County Pub. Schools v. Bitterroot Star. 378 Mont. 451, 345 P.3d 1035.

  • Can a public agency withhold reports alleging gross negligence or official misconduct by public employees?

    As cited above, there are a number of Supreme Court rulings that public employees occupying positions of public trust have no expectation of privacy over records of alleged misconduct. For example, in Bozeman Daily Chronicle v. City of Bozeman Police Dept. 260 Mont. 218, 225, 859 P.2d 435, 439 (1993), a Bozeman police officer was accused of raping a cadet at the state Law Enforcement Academy. No criminal charges were brought, and the officer resigned before any disciplinary action was taken. The city and the county denied the newspaper access because, they argued, the investigative files were confidential under the Criminal Justice Information Act.

    The Supreme Court disagreed, ruling that the police officer’s right to privacy was exceeded by the public’s right to know. The court ordered in camera inspection of the documents at issue, to protect the privacy right of the victims and the witnesses. 

    In determining whether the right of individual privacy protects certain records from disclosure, the Supreme Court has devised a two-part test: (1) whether the person asserting the right has a subjective or actual expectation of privacy and (2) whether society is willing to recognize that exception as reasonable. The Court has applied this test in a series of cases involving records of agency investigations of alleged wrongdoing by public employees and officials. The Court in Bozeman Daily Chronicle relied on its prior ruling in Great Falls Tribune v. Cascade County Sheriff, 238 Mont. 103, 775 P.2d 1267, (1989), in which the Court first recognized that when balancing the right to know with the right of privacy of governmental employees who occupy positions of public trust, the right to know must always prevail. This is so, because “it is not good public policy to recognize an expectation of privacy in protecting the identity of a law enforcement officer whose conduct is sufficiently reprehensible to merit discipline.” 238 Mont. 107.

    Since the Court’s ruling in Great Falls Tribune, the Court has applied this doctrine to order the release of records of a mayor’s alleged harassment of a city employee, Citizens to Recall Whitlock v. Whitlock, 255 Mont. 517, 844 P.2d 74 (1992); a police officer accused of rape, Bozeman Chronicle v. City of Bozeman, 260 Mont. 218, 869 P.2d 435 (1993); a DUI arrest of a county commissioner, Jefferson County v. Montana Standard, 2003 MT 384, 318 Mont. 173, 79 P.3d 805; a school teacher’s abuse of students, Svaldi v. Anaconda Deer Lodge, 2005 MT 17, 325 Mont. 365, 106 P.3d 548; a sex discrimination case involving county public defender’s office, Yellowstone County v. Billings Gazette, 2006 MT 218, 333 Mont. 390, 143 P.3d 135; and, a police department clerk accused of misusing city funds, Billings Gazette v. City of Billings, 2011 MT 293, 362 Mont. 522, 267 P.3d 11.

    A recent iteration of this doctrine is the 2011 Billings Gazette ruling. There, the Court determined that because the clerk was being investigated for allegations that she misappropriated public funds, “which is the very aspect of her job that renders it a ‘position of trust,’ the public documents generated as a result of the investigation should be subject to public disclosure.” ¶23. The Court relied on its 2006 Yellowstone County case recognizing “society is not willing to recognize as reasonable the privacy interest of individuals who hold positions of public trust when the information sought bears on that individual’s ability to perform public duties.” Yellowstone County, supra at ¶21.

    However in Billings Gazette v. City of Billings, 372 Mont. 409, 313 P.3d 128 (2013), the Supreme Court declined to apply the public trust/diminished right of privacy doctrine to non-managerial employees.

  • Are school records of students open to public inspection?

    The school probably will refuse to provide public access to student records based on a federal law, FERPA. The Supreme Court, in Cut Bank Pioneer Press v. Cut Bank School District, 2007 MT 115, ¶24, 337 Mont. 229, 160 P.3d 482, applied the Montana right-to-know law in holding that the federal law is inapplicable so long as the names of the students are redacted. So, if you ask for redacted student records they should be provided. However, this issue is being re-litigated in Krakauer v. Commissioner of Higher Education. There, the district court ruled that FERPA did not prohibit access to student records of disciplinary matters, so long as the school did not permit access on a systematic basis. The case is on appeal and scheduled for oral argument before the Supreme Court.

  • Are “draft” copies of public documents open for viewing by the public?

    Yes. The definition of public information in §2-6-1002(11) MCA makes no distinction between “draft documents” and completed documents: “Public information means information prepared … by any public agency … regardless of form …” The courts have also ruled that draft documents are public documents. The most commonly occurring issue is whether minutes of meetings of governmental entities in “draft” form are publically accessible. The answer, of course, is yes.

  • Are initial offense reports and initial arrest records kept by law enforcement considered public records?

    Yes. Under the law, telephone logs are considered either “initial offense reports” or “initial arrest records,” or both. These are public under §44-5-103(13)(e)(i) MCA.

    In 42 Att’y Gen. Op. 119, the attorney general defined “initial arrest records” as “the first record made by a criminal justice agency indicating the fact of a particular person’s arrest, including the initial facts associated with that arrest,” and “initial offense reports” as “the first report recorded by a criminal justice agency which indicates that a criminal offense may have been committed, including a description of the initial facts surrounding the reported offense.” The opinion said confidential information may be blacked out, but the edited report should be public.

    §44-5-311 also protects the identity of a crime victim. This section says police cannot release the address, telephone number or place of employment of a victim who requests confidentiality. The law also forbids police from releasing the names of sex crime victims except in certain situations. In 50 Att’y Gen. Op. 6, the attorney general softened this law, saying police may disclose a crime scene location, even if such disclosure may suggest the identity of the victim, even the victim of a sex crime. The opinion further said that confidentiality attempts by victims need to be subjected to a balancing act between public disclosure and privacy under the Montana Constitution.

  • Are “mug shots” public?

    Yes. A recent state district court ruling likens a “mug shot” to be akin to a jail occupancy roster which is public criminal justice information. Based on this court decision, the attorney general has declined to address the issue, re-affirming the statewide application of the district court ruling.

  • Are driving records and drivers’ license information, including photos, public?

    §61-11-503 MCA limits disclosure of information from drivers’ licenses, vehicle titles, vehicle registration and vehicle insurance status. Information that is not available to the public includes a driver’s photo, Social Security number, medical or disability information and address.

  • Are motor vehicle accident records public?

    No. §61-7-114 MCA provides these reports are for the “confidential” use of government agencies. The reports may be examined and copied by persons named in the reports or involved in the accident. 

  • Are birth and death certificates public?

    §50-15-121 MCA makes death certificates public. However, the federal Health Insurance Portability and Accountability Act (HIPPA) of 2003 forbids the release of the cause of death until two years after the death. Birth certificates are not available to the public until 30 years after date of birth.

  • Are applications for marriage public record?

    No. The attorney general ruled in 2000 that this information is not available to the public. His opinion carries the force of law until it is overruled by the courts. Marriage licenses themselves are public documents.

  • Are votes cast by legislators on the issue of calling a special session of the Legislature available to the public before all votes are received?

    Yes. §5-3-106 MCA requires legislative poll results to be secret until all votes are received but subject to disclosure after the close of voting.

  • Are election canvassing records open to the public?

    Yes. §13-15 MCA says the canvass of all votes is open to the public. This applies to any general, regular, special or primary election held by a county, municipality, school board or special district. §§13-1-101(7), 13-1-101(19) and 20-20-102.

  • May the public inspect competitive bids on government projects before a contract is awarded?

    Yes. §18-4-304 MCA requires public inspection of bids after they are opened, subject to some restrictions.

  • Is the public entitled to examine settlements of lawsuits when they involve government agencies?

    Yes. In Pengra v. State, 302 Mont. 276, 14 P.3d 499 (2000), the Montana Supreme Court ruled that the family of a murdered Helena woman had no right to privacy in the amount of money government paid to settle the family’s lawsuit against the state. Following the decision, the Legislature enacted §2-9-303 MCA, which says court settlements involving state agencies are public, and §2-9-304, extends this to the state’s political subdivisions.

  • Are jail occupancy records public?

    Yes. §44-5-102(13)(e)(iv) MCA, provides that initial arrest records, initial offense reports and jail occupancy rosters are all public criminal justice information. 

  • Are salaries of government employees public information?

    Yes, under 43 Att’y Gen. Op. 119 (1988).

Montana’s Constitution says, “No person shall be deprived of the right to examine documents or to observe the deliberation 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.”

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