• What laws govern access to courts and court records?

    Most of the law governing law enforcement records can be found in the Montana Criminal Justice Information Act, Title 44, Chapter 5 of Montana Code Annotated. This act spells out what can and cannot be released. Laws regarding the release of information about juvenile criminal proceedings are found in Part 6 of the Youth Court Act, Title 41, Chapter 5, MCA.

    Further, certain landmark cases in Montana courts, the “Right to Know” provision in the Montana Constitution and the First and Fourteenth Amendments to the U.S. Constitution guarantee the public the right to attend criminal proceedings except in the most extreme cases. As a general rule, closure must be a last resort, taken only after 1) a showing of the compelling interests that demand it and 2) that less restrictive alternatives are unavailable. 

  • When are court documents officially public?

    Once a document is filed in court, any member of the public can have access to it unless the judge has ordered otherwise in certain special and rare situations. That means, for instance, that information cannot be withheld because the parties involved have not been served.

  • Are all court records open for public inspection?

    §2-6-1002(1)(b) MCA exempts from disclosure information “related to judicial deliberations in adversarial proceedings.” This is a new exemption which awaits judicial construction. It presumably is restricted to judge’s notes, as well as law clerk memos to judges. It could also be construed to include court reporter “raw” notes and trial transcripts.

  • Are youth court records afforded any special protection under Montana law?

    These records are generally accessible, but some records are still restricted by the law. Specifically, §41-5-212 MCA reads: “Reports of preliminary inquiries, petitions, motions, other filed pleadings, court findings, verdicts, and orders and decrees on file with the clerk of court are public records and are open to public inspection until the records are sealed under §41-5-216.”

    Youth court records and law enforcement records pertaining to a youth covered under this law are sealed three years after the end of supervision for an offense, but may be unsealed if a new offense is committed.

    Certain records remain private under the court’s discretion. Under §41-5-215, these include “Social, medical, and psychological records, youth assessment materials, predispositional studies, and supervision records of probationers.” Under the old law, these types of records were only opened to the public if the juvenile were charged with an offense that would be a felony if the juvenile were an adult. Only then were court proceedings to be open to the public. This rule also applied to law-enforcement records. 

  • Can a newspaper or broadcaster be punished for printing the name of a youth as long as the information was lawfully obtained?

    No. Laws prohibiting the dissemination of lawfully obtained information would amount to an illegal prior restraint and are expressly forbidden under a number of U.S. Supreme Court cases, including the landmark Florida Star v. B.J.F,491 U.S. 524, 16 Media L. Rep. 1801 (1989). In that case, the court reversed a ruling against the Florida Star, a Jacksonville weekly, for publishing the full name of a rape victim in violation of a state statute. Also, in Smith v. Daily Mail Publishing Co., 443 U.S. 97,5 Media L. Rep. 1305 (1979) the Supreme Court ruled that the government may constitutionally punish a newspaper for publishing lawfully obtained, truthful information about a matter of public significance only if the government can show that punishment is “narrowly tailored to a state interest of the highest order.”

  • Are presentence investigation reports public records?

    Not without a court order. According to §46-18-113 (1) MCA, “All presentence investigation reports must be a part of the court record but may not be opened for public inspection.” Further, such confidential criminal justice information is restricted to criminal justice agencies, those authorized by law to receive it and those authorized to receive it by court order. However, both of these statutes have provisions that allow a district judge to authorize release of the information. §46-18-113(2) specifically states that the court can allow access to others as it considers necessary. §44-5-303 allows a judge to enter a court order allowing others to have access to confidential criminal justice information upon finding that the demands of individual privacy do not exceed the merits of the public’s right to know. 

  • Can a judge restrict access to television cameras in the courtroom?

    §3-1-111 MCA allows the district court judge to control the “orderly conduct of proceedings.” However, Canon 35 of the Canons of Judicial Ethics allows closure only when the judge finds that broadcasting would “substantially and materially interfere with the primary function of the court.” The judge also must put into the record the reasons. It also sets forth a specific procedure for the reporter to follow, i.e., make a direct request to the judge. 

  • Are pretrial hearings and suppression hearings open to the public?

    Generally, yes. Under §46-11-701 MCA, pretrial proceedings in criminal cases are generally open to the public. If it appears to the judge that pretrial publicity may threaten the right of the defendant to a fair trial, the judge is first supposed to seek the voluntary cooperation of the news media in delaying dissemination of the potentially prejudicial information until the impaneling of the jury or earlier at the discretion of the judge. If such voluntary cooperation cannot be agreed to, the judge is then supposed to hold a hearing on whether the hearing on the proceeding should be closed. The judge is supposed to close suppression hearings and seal the record only if the dissemination of information would create a clear and present danger to the fairness of the trial and the prejudicial effect cannot be avoided by any reasonable alternative means.

    In the notorious case of accused child-killer Nathaniel Bar-Jonah, who prosecutors said butchered his victim and fed body parts in meals to unsuspecting neighbors, a state district judge in 2001 refused broad defense motions to seal court documents, close pretrial hearings and issue a gag order. Ruling after the news media intervened to keep the case open to the public, Judge Kenneth Neill of Great Falls found, “While the media coverage of this case and the defendant has been intense, the defendant has failed to demonstrate a clear and present danger to the right of a fair trial …”

  • May judges close selection of juror (voir dire) proceedings to the public?

    Usually not. In the murder trial of Gene Austad in Great Falls, a district judge closed the questioning of possible jurors. The Great Falls Tribune appealed to the Montana Supreme Court, which said the proceedings should be open and would not impair the defendant’s right to a speedy trial. Great Falls Tribune v. District Court, 186 Mont. 433, 608 P2d116 (1980)

  • Are coroner’s inquests open to the public?

    Yes. §46-4-201 MCA establishes that a coroner’s inquest must be run like a court. §3-1-312 says that all court proceedings in Montana are open to the public, with almost no exceptions. The purpose to an inquest is to clear the air in the case of a controversial death. To close the inquest would defeat that purpose.

  • What should reporters do when they think a court proceeding is being closed improperly?

    Montana FOI wallet cards (available as a downloadable .pdf on include a statement, to be entered into the court record as soon as there is a motion to close a criminal proceeding in a Montana court: 

    Your Honor, may I address the court?

    My name is _______ I’m a reporter for ________

    I respectfully object to closing this proceeding to the public and the news media. The Montana Supreme Court in Tribune v. District Court, and Smith v. District Court, ruled that the “right to know” provision of the Montana Constitution and the First and the Fourteenth Amendments to the U.S. Constitution guarantee the public the right to attend criminal proceedings except in the most extreme cases.

    ###i /i###

    Before you rule on this motion to close these proceedings, I request a recess to let me consult with my employer and my lawyer. Thank you.

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.”