News organizations ask to join suit to open public access to draft bill documents

A coalition of news organizations, including the Daily Montanan, on Friday filed a petition seeking to join a lawsuit to keep all documents related to drafting bills — including communications between legislators, lobbyists, and other stakeholders — available to members of the public under Montana’s constitutional “right to know.” 

For 30 years, members of the public, including reporters and lobbyists, have been able to request and access all documents related to proposed legislation. Those files, called “junque” files, often include correspondence and can shed light on which individuals and organizations might be influencing a piece of legislation. 

 in September, however, Montana Legislative Services, which writes bills for lawmakers, announced it would no longer automatically make all bill draft files available to the public, but would instead enact a new policy making documents privileged by default unless a lawmaker signs a waiver. 

The Montana Environmental Information Center filed suit in Cascade County District Court on Oct. 30, seeking emergency relief and requesting the new policy be found unconstitutional. The news organizations (known collectively in the court documents as the Press) on Dec. 6 filed an unopposed motion to intervene as plaintiffs in the suit. 

“The necessity of, and freedom to, report on the government is rooted in both the United States and Montana constitutions,” the Press motion reads. “The press is, in short, the public’s watchdog and serves to inform the public about governmental action and efficacy. Access to public records is the cornerstone of this duty.”

The petition was filed by Montana Free Press, The Associated Press, the Montana Broadcasters Association, Montana Newspaper Association, Hagadone Media Montana, The Daily Montanan, Lee Enterprises, Inc., and Adams Publishing Group, which collectively comprise a majority of news organizations in the state. The Daily Montanan and other Montana news outlets routinely utilize junque files in their reporting to the public, including several times during the 2023 session. 

“The Press has, for 30 years, exercised its right to examine junque files to check sources and accurately report on the legislative process. Continued access to junque files is vital, for example, to understand the reasoning behind proposed bills and determine whether the bills are brought by constituents, lawmakers themselves or are model legislation promoted by national organizations. Real-time access to junque files is critical to better inform Montanans and the electorate of the reasons behind legislation so the public has an opportunity to testify during bill hearings or write their lawmakers to provide comment regarding legislation. The Press, in short, seeks intervention to protect its right to know so it can accurately and timely report on governmental conduct for the benefit of the public,” according to the motion. 

A new policy of access

The change by Legislative Services came in response to a July decision from Lewis and Clark District Court Judge Christopher Abbott in a court case over whether a new Public Service Commission map was a partisan gerrymander. 

Attorneys for the plaintiffs in that lawsuit had tried to subpoena Sen. Keith Regier, R-Kalispell, who carried the bill enacting the PSC redistricting, and gain access to the full junque file for the bill. A previous junque file had not contained communications about redistricting. 

However, Judge Abbott wrote in his opinion quashing the subpoena that producing junque files was barred by “legislative privilege.”

Legislative Services executive director Jerry Howe previously told the Daily Montanan that his office thought they were “following what the previous court directed us to do,” when it enacted the new policy, making junque files private by default. 

However MEIC’s original complaint said that Abbott’s order was specific to the discovery dispute over communications related to the PSC map; and it “implicates no documents other than those expressly considered.”

The lawsuit also states that the same district court found in 1995 that “junque files … are subject to disclosure under the right to know.”

Constitutional right to know is essential for news outlets

The Press filed to intervene to ensure its interest in maintaining the right to know as a critical part of its work to keep the public informed is represented in the suit.  

While MEIC, in its original complaint, focused on the right to know in order to use information to represent clients and advocate and lobby for a clean and healthful environment, the Press’ motion describes “a broader interest, with an aim toward informing the public generally regarding proposed legislation and holding government accountable to the public by shining a light on its activities, conduct and operations.”

The press has a right to access and examine governmental records that is enshrined in the state constitution, according to the Press motion. 

The Right to Know in Article II of the Montana Constitution states 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.”

The Press motion adds that Abbott’s order “did not expressly address whether junque files are ‘privileged,’” and that it “did not grant a blanket privilege over junque files or rote communications surrounding the bill drafting process.”

Instead, the motion goes back to the 1995 court decision that stated junque files “fall outside the privilege.”

“Junque files are maintained by a public body (Defendant Legislative Services Division) and have, since at least 1995, been subject to Montanans’ right to know,” the Press’ complaint reads. “The information contained in junque files offers important context for journalists, lobbyists, and members of the public seeking to learn more about draft legislation and possible influence by outside stakeholders.”

The importance of junque files to the work of journalists was highlighted in the court filings by declarations submitted by journalists and editors, including long-time Montana journalist Mike Dennison, who covered the Montana Legislature from 1987-2021. 

“Without a right to examine junque files, or otherwise request and obtain this information, I would have to rely only on the good graces of the lobby groups to tell me what they wanted, and when they wanted to tell me. That information might become evident during subsequent hearings or actions on the eventual bill, but by then, the ‘fix might be in,’ so to speak, with little or no time for the public to react or influence the outcome,” Dennison wrote in the court filing. 

Susan Byorth Fox, who was Legislative Services Division executive director from 2006 until May of this year, also submitted a declaration that junque files were treated as public records during her tenure, and “never treated as privileged documents.”

Additional statements in the lawsuit were submitted by editors of the listed news organizations, including Daily Montanan Editor Darrell Ehrlick.

The news organizations have retained the law firm Goetz, Geddes, & Gardner, P.C. as outside counsel for the litigation. MEIC in its original complaint is represented by Upper Seven Law. 

Note: As a party to the legal filing, Daily Montanan editor Darrell Ehrlick was not part of the editorial team for this article.