Development Agreement
Coal plant aficionados will recall our unsuccessful efforts last spring to obtain preliminary drafts of the City’s Coal Plant Development Agreement with SME. The City, through its attorney, David Gliko, refused production claiming that MCA Sec. 2-6-401 excludes “preliminary drafts” from the definition of public records, and therefore the ”City is obliged to follow the statutes of the State of Montana,” and that those statutes prevented the City from producing the records.
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I disagreed, suggesting that the legislature cannot take away what the Constitution gives. While I disagreed, I had neither the time, the money, nor the inclination to fight the issue in Court. (More here and here.)
The Montana Environmental Information Center, though, did have the time. I have obtained a copy of the Brief MEIC filed in support of their Motion for Summary Judgment on this exact issue. Here are some choice exerpts:
The specific documents sought by MEIC are drafts of an agreement between the City of Great Falls and SME. Those drafts “record acts” of the City, they are “maintained” by the City, and are certainly “somehow related to the function and duties” of the City – i.e. the City entering into an agreement with a private party, SME, to develop the Highwood Generating Station. Accordingly, under Article II, Section 9, there should be no doubt that drafts of an agreement between the City and SME are “documents of public bodies” as interpreted by the Supreme Court in Becky.
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In Bryan, supra, the Court determined that the “reasonable opportunity” of the public to participate, as guaranteed under Article II, Section 8, “demands compliance” with Article II, Section 9. Bryan, 312 Mont. 257, at § 44. In other words, as applied here, in order for MEIC to have a meaningful opportunity to participate in the City of Great Falls’ decisions concerning the controversial Highwood Generating Station, it must be provided access to and the ability to examine “all documents” as guaranteed under Article II, Section 9.
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C. Section 2-6-401 (2) (c), MCA, is Unconstitutional As Applied
Put quite simply, § 2-6-401 (2) (c), MCA conflicts with Article II, Section 9, and precludes meaningful public participation under Article II, Section 8, because it creates broad categories of documents that, under the City of Great Falls’ interpretation of the law, are exempt from public review without regard for whether any constitutionally protected privacy rights exceed the public’s right to know.
The bigger question, though, is why the City is working so danged hard to keep this stuff from us?
GeeGuy,
I would probably say they are keeping the information from the public because there is possibly some shady dealing going on. Would not suprise me if some of our government leaders had their hands in someone else’s pocket. With everything that is starting to come to light in the city concerning our current elected officials and others, we might need to get the Feds in here to straighten things up. Way too many things are being kept from the public, and you risk being thrown out of the meetings by the police if you say anything that the Mayor does not agree with. They are here to protect and serve, but protect and serve who is the question.
I can think of a couple reasons to keep one’s intentions secret. Surprise birthday parties come to mind, but a pick pocket about to lift your wallet has even more reason.
Take your pick, I’m guessing it’s not about our birthdays.
Well, I’ll say it. This is the most CORRUPT city government I have ever seen in Montana, police department included! I’m not from GF. I only moved here about sixteen years ago. But from what I gather from the natives, it’s always been this way and would probably continue to be so had they not decided to overreach with the coal fiasco. That was just too much for the public to bear. The cockroaches obligingly shined the light on themselves! What thoughtful cucarachas!
A recall election is a real possibility from what I’ve been hearing. Only ten percent of registered voters’ signatures is needed for the institution of a recall vote. I’m all for it.
“Recall petitions for elected or appointed officers of municipalities or school districts shall contain the signatures of qualified electors equaling at least 20% of the number of persons registered to vote at the preceding election for the municipality or school district.” MCA Sec. 2-16-614
Redneck Hippie showed up here from Billings about the same time Lawton did. Coincidence? I wonder.
I can understand why preliminary drafts would be exempt. At some point you have to draw a line between the public’s right to know and practicality. However, when preliminary documents get any where close to racking up anniversaries it’s hard to believe there is anything preliminary about them anymore.
Wolfpack, you’re making the same mistake the Airport Authority made. It doesn’t matter if you “can understand” it, or if it seems reasonable, or if it is more efficient, it is not legal.
GG, thanks for the correction. I had heard from a very reliable source (one that should probably know) that it was only ten percent. Hmm. I’ll have to talk to her. Are you positive that this MCA is correct or hasn’t been updated or amended?
Wolfy, are you suggesting that Redneck Hippie is Lotten???? Interesting theory.
GG- No mistake. At some preliminary level it is not reasonable to expect full access. Do you expect a web cast from all city computers to you? A key stroke by key stroke accounting of all written info real time? Should managers have no control over the work their subordinates disseminate since anything they put in writing immediately becomes a public document by your interpretation. Should we be able to demand a copy of a document pre-spell check? Not my field so excuse me if I embarrass myself, but I believe there is plenty of precedence for not strictly interpreting the constitution when doing so would go sideways with the writer’s intent. This is even more so when the legislature spells out how to handle language that is not plainly defined. If not emails which are not documents literally would be the legal method for government to fly under the FOI radar as long as they are never printed. I agree that in this case the city attorney has pushed the definition of preliminary unreasonably to include very mature documents that have had significant review by top city management.
LK- Sorry for outing the real RNH.
Look at it this way, Wolfpack. I should be able to walk into the Civic Center this very morning and, unless some individual privacy right is implicated, I should be able to paw through virtually any piece of paper and file in that building. It makes no matter whether they are preliminary documents or not.
How successful do you think I would be?
You see, it comes down to this fact, which was clearly recognized by the drafters of our Constition: Government officials don’t own the building. They don’t own the filing cabinets. They don’t own the files. They don’t own the paper.
We do.
No secrets.
Wolfpack,
The issue of public access is perhaps the most unfamiliar element in the transition from the private to the public sector.
I understand why you feel preliminary work product should not be available to the public. In our private sector careers we spend a great deal of time editing and massaging our plans before they are made public because we are judged on the basis of those documents. This is especially true for people like you and I who are in essence paid more on the basis of our knowledge than on any physical product created with our hands.
As I said, I understand your thoughts, but must respectfully disagree with you on this item. Not only as GeeGuy said, is it the law that all documents are public, but it is also an essential safeguard for the people. I also do not believe that it is a misrepresentation of the intent of the constitution. At its fundamental core, a constitution is a contract between the people and their government and in this country; constitutions are designed not to protect the government, but instead to protect the people from their government.
At times, the transparency gets in the way of productivity, at times the transparency causes an elected official or staff member to be embarrassed because of the release of incomplete product, but these are in my opinion a small price to pay for the protection transparency gives the public.
It is simply a cost of doing business in the public sector and if it is not an acceptable cost for any individual to pay, they need to return to the private sector.
According to our city leaders, everybody knows the intent of an important contract, typos and all. You know, spell checkers and Internet are hard to use in merry old England.
We need no excuses nor do we need to apologize when we demand public officials follow the letter of the law.
Joe, too bad you can’t infuse some of your wisdom into our city administration.
Mr Briggs,
Thanks for sharing your views and opinon.
I would have to agree with Bandit on the same comments.
At least, the county commishes have been more forth coming on these issues.
Maybe you should help the city folks with an in house 101 session on public comments and release of public information.
They would do well learning from you folks.
Geeguy/Joe- So you are both saying that MCA 2-6-401 section 2, ii, c is flatly unconstitutional?
I am saying it is a) unconstitutional as applied by the City as grounds to refuse to produce drafts of public documents, b) probably facially unconstitutional, and c) probably only applicable to the retention of public documents as argued by MEIC.
Well said Joe………….right on target
GeeGuy- So we only disagree on your point b). Two out of three ain’t bad.
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