Open Government: A right that shouldn’t be taken for granted


 By Ian Marquand

        What would life in Montana be like without our open government laws? Imagine the city council making a new ordinance behind closed doors and simply decreeing it as a fait accompli. Imagine citizens forbidden to offer opinions about the county budget. Imagine local police activities and criminal prosecutions shrouded in secrecy.

Montana’s Constitution and open government laws guarantee that citizens have the right to know what their state and local governments are doing, as well as the right to participate in government decision-making. Those provisions, sometimes called “Freedom of Information” or “Sunshine” laws, allow us to attend local government meetings or criminal trials, and to look at government meeting agendas or reports of police calls, among other things. In other words, things we take for granted. 
Still, issues arise when Montanans cannot get information or are denied access to meetings or decision-making processes. That’s why the Montana FOI Hotline (406-442-8670) provides free, over-the-phone legal advice to journalists and citizens who have questions or concerns about access to public information or meetings. In the last several years, the volume of calls we’ve received from citizens nearly has equaled the number that have come from journalists. We expect that trend to continue.
Meanwhile, citizens who use public access laws sometimes find information that turns out to be significant to the larger community. A case in point: the recent stories about questionable real property filings in Lake and Gallatin Counties. Because real estate professionals had access to public records about private property, they were able to gather information, take appropriate action, alert law enforcement and inform the general public through the media.
Could the public’s right to know be stronger in Montana? Many of us who care about open government would say yes, notably in cases when public entities shield information on grounds that Montana’s right to individual privacy “clearly exceeds” the public’s right to know. We also worry about the fees government entities charge when asked to produce large numbers of public records, especially if the request involves removing legitimately confidential information about individuals. 
Many of us also wish that a violation of open government laws would bring additional consequences. Today, if a government entity refuses to produce information (or makes a decision based on an illegally closed meeting or a lack of public participation) the only alternative open to citizens or news organizations may be to invest large amounts of time and money in a lawsuit. 
And what if the citizen or media outlet prevails? Since Montana law prescribes no civil or criminal penalties for violating open government laws, a judge’s only option is to order the offending government entity (in other words, the taxpayers) to reimburse the plaintiff’s attorney’s fees. However, judges do not always take that step, leaving the plaintiff with a costly, perhaps even Pyrrhic, victory. In addition, the case may take so long to resolve that the original issue becomes moot. 
In May, Missoula will host one of the nation’s leading open government experts. David Cuillier is the national Freedom of Information Committee chair for the Society of Professional Journalists. He’ll bring his “Access Across America” tour to The University of Montana’s School of Journalism at 7 p.m. on May 6 in Room 316 of Don Anderson Hall.
In this election year, citizens should ask candidates what they’ll do to keep government open and accountable to the public. It’s an issue that should be a priority for them—and for all Montanans.
 
NOTE: Ian Marquand is President of the Montana Freedom of Information Hotline and President of the Montana Professional Chapter of the Society of Professional Journalists. He also served as SPJ’s national FOI Committee Chair from 1999-2003.

Published April 7, 2010

Article Type: 
Guest Opinion

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