We must keep the sun shining on government

By Ian Marquand,

Chair, Montana Freedom of Information Hotline

“No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies…” - Article II, section 9, Montana Constitution.

“A people who mean to be their own Governors must arm themselves with the power knowledge gives.” - James Madison

Pick up almost any Montana newspaper and you probably won’t have to look far to see stories made possible by Montana’s laws on open records and open meetings. News of city council meetings, school board discussions, county commissioner decisions, meetings of state decision-making bodies - all are open to the media and the public because the law says they must be, except in very limited circumstances.

Likewise, government records, ranging from the state budget to legislative records to judicial decisions to city council e-mails, are considered public records and are available for inspection under the law.

Montanans who care about open government and public participation in government decision-making are justly proud of the state’s Freedom of Information - or “FOI” - laws. That’s one reason we sometimes fight for their enforcement and raise questions or issues that may make people in government uncomfortable. It’s also why ordinary citizens sometimes challenge decisions or policies made by government bodies.

Which brings us to Sunshine Week 2008. Six years ago, the effort began in Florida as “Sunshine Sunday,” a one-day effort by that state’s newspapers to call attention to threats to Florida’s open government statutes. In the ensuing years, as government secrecy at the federal level has become a greater and greater concern, the effort spread across the country and across an entire week.

As we in Montana observe Sunshine Week, we recognize there are challenges ahead. New rules on access to court records have yet to be implemented because of concerns over how their implementation will impact attorneys and court personnel. Local governments are being advised to consider legal liability and “risk management” when determining whether to release information. At the Montana FOI Hotline, we continue to hear stories of local officials who treat information and public process as personal fiefdoms.

Still, there are some positive signs:

  • In January, Montana’s top legislative leaders have stated clearly they do not intend to restrict the media’s presence in House and Senate chambers and meeting rooms. Nor do they intend to attempt to reverse the 1998 district court decision that opened “in-session” party caucuses to the media and general public. Instead, leaders expressed interest in working with the media to insure that reporters can get the access they need to do their jobs without unduly impacting the Senators and Representatives who sit along the perimeter of the chambers.

  • In February, Missoula’s city council and administration brought in a state trainer to teach a day-long seminar on the state’s open meetings and records law. By all accounts, it was the first time the city had requested FOI training for its elected officials and staff.

  • Just last week, a member of a new community council in western Montana called me to ask about the standards for advance notice of public meetings. We spoke for some time.

  • That same day, Missoula’s top two city law enforcement officers told an assembled group of journalists that they would host a “records management” training session for law enforcement officials from across Montana. This gathering has the potential to promote openness, bust myths and otherwise create greater understanding of how the state’s constitution and open records laws apply to law enforcement.

  • FOI isn’t just a journalist’s issue. For the second straight year, non-journalists made up the largest single group of callers to the Montana FOI Hotline, representing more than a third of the calls received by our law firm in Helena. (Weekly newspapers were the second most frequent users of the Hotline, followed by daily newspapers and television stations.) In addition, the League of Women Voters continues to take a strong interest in FOI, both in Montana and nationally. Last year, the national organization published a resource guide called “Observing Your Government in Action.”

  • On the national scene, Congress passed - and President Bush signed - the Openness Promotes Effectiveness in National (OPEN) Government Act of 2007. The president signed the act into law on New Year’s Eve. The new law makes it easier for records requesters to win their attorney’s fees if they prevail in court against the federal government. It also authorizes a new federal open government ombudsman, similar to the public access counselors that some states have created. Although President Bush’s proposed budget fails to fund the ombudsman’s position, the authorization nonetheless offers hope that the next administration will make a commitment to it.

    Montana’s news media will continue to hold the FOI banner high. In doing so, we honor the writers of Montana’s Constitution, as well as the vision of James Madison.

    Ian Marquand is director of Special Projects for KPAX-TV in Missoula, and chair of the Montana Freedom of Information Hotline. The Hotline can be reached at 406-442-8670. Helena attorney Mike Meloy represents the Hotline.

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