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Judge rules that public information shouldn’t include paying state lawyers for internal review

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Judge rules that public information shouldn’t include paying state lawyers for internal review

Jul 06, 2022 | 4:58 pm ET
By Darrell Ehrlick
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Judge rules that public information shouldn’t include paying state lawyers for internal review
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Montana Public Service Commission (via PSC Twitter account).

A district court judge has ruled that the Montana Public Service Commission cannot charge thousands of dollars in legal review fees before releasing information to a reporter, a decision that could remove one of the state’s most common responses to public information requests.

The case itself centers on a request by Billings Gazette reporter Tom Lutey, who asked the PSC for 11 types of documents. Three weeks later, the PSC responded that using the search terms Lutey had requested, it had discovered more than 25,000 documents.

In an initial response to the request by Lutey, an attorney for the PSC told Lee Enterprises, which owns The Gazette, if it would narrow the search terms, it would likely lower the costs. The full cost to review the documents, the PSC told Lutey and Lee Enterprises, was $31,000 which it must provide up-front before the request would be processed.

The agency also warned without nearly $1,000 in payments, the agency may not hold onto records Lutey was requesting because of periodic email purges.

The newspapers paid $870 under protest to preserve the records.

The PSC, as well as other state entities, have recently and routinely responded to the public and press’ information requests with a response that includes a demand for pre-payment of internal legal review fees. The government entity often argues that it will have to use staff attorneys or other outside lawyers to examine the documents to ensure nothing confidential or proprietary is released. These pre-payment requirements often range in the thousands of dollars, effectively stopping the request.

However, the ruling by Lewis and Clark County District Judge Mike Menahan sided with the media, which has often argued that a review by government attorneys is an obligation of the government, not something the public should have to bear.

“The fees have a chilling effect on the public’s right to know because their right to access public documents should not be conditioned on their ability to pay,” Menahan ruled.

In his decision, he also discussed the notion that by charging legal fees, the public is being asked to subsidize a part of the job that goes along with being a public agency with public information.

“Regardless how inconvenient the PSC may find public record requests, they are no less a part of the agency’s duties than a ratemaking proceeding,” Menahan ruled. “The court rejects the notion an agency having to pay its staff regular wages to conduct work within the agency’s statutory duties is an ‘actual cost directly incident to fulfilling a public records request.’”

Montana law allows an agency to charge for some public record requests, for example the cost of making copies, the staff time for retrieving some records, or staff time for compiling records in a usable format when proprietary software is involved. However, even in those circumstances, most provisions within state law only allow the agencies to charge the actual cost incurred by a government agency.

Menahan ruled that charges to retain records, like email for longer period, was lawful.

David McCumber, local news director for Lee Enterprises’ western newspapers, which includes all of Montana, praised the ruling, but pointed out that oftentimes, responses to public information requests would be inflated beyond the salary of the state-employed attorneys. He gave one example where a state agency cited the hourly rate for an attorney at nearly $60 per hour, when the state’s publicly available salary database showed the attorney’s salary was closer to $45 per hour.

“The state is trying to make this a profit center,” McCumber said.

Menahan’s ruling also said that while the government may have a legitimate interest in protecting the privacy of some information – that responsibility is the government’s, not the public’s.

“Legal review to prevent disclosing public information is for the benefit of the person whose information is protected where the agency wishes to avoid violating privacy rights,” Menahan said. “Identifying what is and is not public information goes beyond ‘gathering’ as it is work conducted in the interest of the agency rather than the individual who requested the information.”

The PSC, meanwhile, argued that it had tried to negotiate with the reporter and newspaper.

“There is a question here whether the PSC is using the threat of prohibitive legal fees as leverage for negotiating a narrower public information request,” Menahan wrote. “It may not negotiate how much information a party may receive based on the amount the party is willing to pay.”

Dan Stusek, external affairs manager for the Public Service Commission, said the commission tried to work with Lee Enterprises to narrow the search, but did not receive a response.

“The commission has repeatedly made clear to Lee Enterprises Corporation and to the public that it fully intended and does intend to produce documents that are truly public documents under Montana law and the Montana Constitution,” Stusek told the Daily Montanan.

He said that the PSC intends to comply with the judge’s order.

“The First Judicial District Court has now determined, as a matter of law, that it is the financial obligation of Montana’s ratepayers, and not of the Lee Enterprises Corporation, to shoulder the high cost of conducting the constitutionally mandated privacy review in order to protect against the wrongful disclosure of confidential information,” Stusek said.

McCumber celebrated the ruling, which he said will result in more transparency.

“The whole concept the PSC was using was flawed. A public record is a public record,” McCumber said. “If an entity has its own interests in records that need vetting before release, that’s on them.”

Calling the “intransigence of the PSC legendary,” McCumber told the Daily Montanan that this will help Lutey, who has covered for the PSC for years and won awards for the coverage, get more information for the public.

“Even if you take the legal bill down to just a tenth of what they charged, how many would be able to afford $3,100?” McCumber said. “This isn’t new to this administration. (Former Gov.) Steve Bullock did the same damn thing.”