03/10/07

Sunshine Week 2007

Experts: Montana's sunshine laws need more teeth



By SARAH COOKE
Associated Press Writer

HELENA, Mont. (AP) -- State laws protecting Montanans' access to public records and agency meetings encourage compliance but need more bite than bark, proponents of open government say.

Violating Montana's open meetings law is a misdemeanor, punishable by up to six months in jail and/or a fine, but prosecutions are difficult and extremely rare, said Mike Meloy, a Helena attorney representing the Montana Newspaper Association.

"I don't think a county attorney has ever prosecuted anyone for it," he said.

Open-records violations carry no criminal penalty in Montana.

That means that most of the time, the public is left with little recourse but to sue over alleged sunshine-law violations -- a timely and costly process that some open-government advocates say often isn't worthwhile.

"By the time a case is decided, the value to that particular incident is gone," said John Barrows, executive director of the Montana Newspaper Association. "Only for future (public-access) cases is it important."

The Montana Freedom of Information Hotline, created in 1988 to help Montanans and journalists with public-access issues, received about 140 calls last year, a figure comparable to previous years, he said.

Of those calls, "a number of them" were deemed violations of laws on open records or open meetings, but only a couple resulted in lawsuits, Barrows said.

One legal challenge by Lee Newspapers of Montana and The Associated Press forced the release earlier this year of redacted information on an Australian company's proposed purchase of NorthWestern Energy.

The Bozeman Daily Chronicle also sued to make public a sealed affidavit in the case of two former Montana State University athletes accused of killing a man suspected of dealing in cocaine. Several months later, the judge ordered that the records remain sealed, citing a need to preserve the defendants' rights to a fair trial.

The problem in Montana, experts say, is a state constitution that contains strong right-to-know and right-to-privacy provisions.

"Those things collide all the time," Barrows said.

Education also is a big issue, and media groups have run into problems trying to toughen the state's sunshine laws in the Legislature.

A proposal that failed in the 2005 legislative session would have made it a crime for any public official to violate the state's open-records law. This year, a proposal clarifying who would have standing to sue when denied access to public meetings or records died in the Senate, although several other bills related to the issue remain alive.

The access bill was sparked by a recent state Supreme Court decision that critics claim limits the public's right to contest closed public meetings.

The court last year dismissed a complaint from a Ravalli County woman who alleged the Darby School District held secret meetings while hiring a new superintendent. Justices said being a taxpayer was not, alone, enough to give the woman standing, or the right, to sue.

School boards lauded the decision.

But news groups and others criticized it, saying it is now being used by other government bodies to block reporters and the public from meetings.

News groups opposed the bill by Republican Sen. Rick Laible of Darby, saying it needed work, and hope a pending Supreme Court case involving Cut Bank school officials will clarify the issue.

Barrows said his group will continue pushing for improvements to Montana's sunshine laws. He added he is interested in an ombudsman-type system, developed in other states, that can speed decisions on alleged violations.
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On the Net:
Montana Newspaper Association: http://www.mtnewspapers.com
Montana FOI Hotline: http://www.umt.edu/journalism/alumni/professional_resources/Montana_FOI.html