Gianforte Vetoes Bill Seeking to Add Transparency to Gubernatorial Decision-Making
Representative Ed Stafman drafted the bill in response to litigation surrounding public records requests
By Amanda Eggert, Montana Free Press
Montana Governor Greg Gianforte has vetoed a bill to protect public access to records associated with executive branch deliberations and communications.
In a May 16 letter striking down House Bill 271, which would have limited the governor’s ability to raise an “executive privilege” argument in a records request denial, Gianforte referenced the Montana Constitution and a recent Montana Supreme Court ruling that narrowed Montanans’ right to examine public documents and observe the deliberations of public bodies.
“While the Right to Know provision of Montanan’s Constitution contains some of the strongest — if not the strongest — rights to public information in the Western world, when the framers adopted it, they did so fully aware of the longstanding history of privilege in the United States,” Gianforte wrote in his veto letter. “In convention, the delegates acknowledged that privileges already existing in law, such as executive privilege, shaped the meaning and scope of the Right to Know. The effect was to incorporate these long-standing privileges into the Montana Constitution for all three branches of government.”
Gianforte also wrote in his letter to legislative leadership that he values the “fundamental principles of transparency,” but must weigh them against the need for candid debate in order to shape public policy.
“To make those decisions, a governor requires robust conversations with employees, relies on their ability to freely disagree, and needs candid debate, dissent and advice,” Gianforte wrote.
Gianforte’s assertion echoes an argument his lawyers made in a lawsuit filed by political and communications consultant Jayson O’Neill. In that lawsuit, O’Neill sought deliberations between the governor and the agencies he leads regarding proposals state lawmakers considered during the 2021 legislative session.
HB 271 sponsor Representative Ed Stafman, D-Bozeman, described Gianforte’s veto as “the largest setback to open government since the Copper Kings” and argued in a conversation with MTFP on Monday that the public will have less visibility into the dealings and deliberations that inform government policies.
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“This leads to corruption. It seems that corruption is the term du jour at the federal level, and now we’re seeing it at the state level,” Stafman said. “This is a small, technical issue in some ways, but in terms of consequences, it’s as big as they come.”
In O’Neill v. Gianforte, a four-justice majority of the state’s highest court noted that record requestors are afforded an opportunity to view documents that state agencies have withheld — if they’re willing to sue for it.
The court wrote that individuals or organizations seeking public records can ask for an “in camera review” of the restricted materials. Under that process, a judge will review documents the state has gathered in response to a records request and decide which ones should be disclosed under the right-to-know provision of the state Constitution and which ones are shielded from review in recognition of established privileges, i.e., those surrounding individual privacy and attorney-client relationships.
That process is expensive and time-consuming, Stafman argued, adding that Montanans’ constitutional right to an open government is weakened when a record requestor receives information only after the state has finalized a decision or policy position.
Montana Environmental Information Center (MEIC) Deputy Director Derf Johnson is familiar with the drawbacks associated with this kind of in camera review process.
Around the same time O’Neill was suing the state for access to “agency bill-monitoring forms,” MEIC was suing Montana over communications between Gianforte’s office and Idaho mining company Hecla. MEIC wanted to learn more about the type of relationship the state was pursuing with Hecla and its CEO, a longtime mining executive Gianforte’s predecessor had deemed a “bad actor” barred from mining in Montana again due to his former employer’s abandonment of the Zortman-Landusky mine, a now-shuttered gold mine with clean-up expenses taxpayers are anticipated to shoulder for generations.
After some legal back-and-forth over whether the state could cite a “pending litigation privilege” — a type of common law attorney-client privilege — in its refusal to produce the requested records, a district court directed the state to turn over unprivileged information and create a privilege log of the remaining documents for an in camera review.
Nearly two years later, MEIC still hasn’t seen any of the material that the court is scrutinizing through the privilege lens, Johnson told MTFP in an interview Monday.
Johnson added that no other Montana governor has effectively raised the type of argument Gianforte made in the O’Neill and MEIC lawsuits.
“We’re talking about a brand-new legal concept that until late last year was not recognized. To say that keeping information from the public is necessary for a governor to satisfy his constitutional obligations is just silly,” he said. “We’ve had 50 years of governors [operating] under this constitutional provision of right to know abiding by it. This is probably the most anti-transparency governor that I’ve ever had to deal with.”
SB 271 passed the Legislature with 83 of its 150 lawmakers in favor — not enough to meet the veto override poll threshold, which requires two-thirds of lawmakers.