The Montana State Flag flies in front of the Montana State Capitol in Helena on Wednesday, April 26, 2023. (Photo by Mike Clark for the Daily Montanan)
Documents related to drafting bills can’t be kept secret from the public, and a new policy that creates a barrier to the information interferes with the “right to know” protected in the Montana Constitution, a new lawsuit alleges.
For decades, members of the public — including journalists and lobbyists — had access to documents related to proposed bills. Those files, called “junque” files, could include emails that showed who might be influencing legislation.
This year, after some 30 years, Montana Legislative Services reversed course; it said the files would be secret unless legislators wanted them shared.
In advance of the 2025 Montana Legislature, a lawsuit filed Wednesday seeks emergency relief and requests the Cascade County District Court find the new policy to be unconstitutional.
“Historically, Legislative Services responded to public information requests for junque files as a matter of routine,” said the lawsuit. “Now it has manufactured a policy to conceal legislator communications, embracing the days of the Copper Collar when millionaires bought access, votes, and power in smoke-filled backrooms.”
“But Montanans’ fundamental rights to know and to participate prohibit legislators from conducting legislative activities in secret.”
The lawsuit against Montana Legislative Services and its director was filed by the David Saslav, a member of the Montana Environmental Information Center; the MEIC itself; and Kaylee Hafer, a lawyer. The complaint said the parties review those files on a regular basis, but Legislative Services recently denied requests from Saslav and Hafer.
In a phone call, Jerry Howe, executive director of Legislative Services, said he was aware of the lawsuit but had not yet been served. However, he said his office instated the policy in response to another court case, as previously explained to legislators.
“We will follow the law, whatever the court decides is best for Montana citizens,” Howe said. ” … We thought we were following what the previous court directed us to do.”
But Howe said if another court finds Legislative Services needs to provide the records, it will follow that order.
Earlier this month, the legal director for Legislative Services said the review of a recent court decision in Helena prompted the new policy.
In that case, about a fight over how a new Public Service Commission map was created, Judge Christopher Abbott found that producing junque files was barred by “legislative privilege.”
In response, Legislative Services said junque files would be private unless legislators signed waivers.
The lawsuit filed this week, however, said the order Legislative Services relies on “to assert legislative privileges” was specific to a discovery dispute over communications related to the map; it “implicates no documents other than those expressly considered.”
Additionally, the lawsuit said that same court previously held in 1995 that “‘bill drafts and associated documents during any stage of the bill drafting process’ — namely, junque files — are subject to disclosure under the right to know.”
It said in the years since, junque files have been “fully available to the public upon request.”
The complaint outlines the reasons for the provision protecting the right to know, including comments from the 1972 Montana Constitutional Convention. The lawsuit starts off with this quote from that convention:
“You shall not conduct the people’s business behind closed doors,” it said, citing the transcript. “You shall not keep from the people the secrets that belong to the people. You shall let the people in and the people shall know.”
As such, the parties suing Legislative Services are asking the court to order the agency to produce records they have requested, citing the “unambiguous” Montana Constitution.
“No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand for privacy clearly exceeds the merits of public disclosure,” said the lawsuit, citing the constitution.
The lawsuit said Saslav, who lives in Great Falls, has asked for seven bill draft requests because he wants to follow legislation that will affect the environment. It said Legislative Services has denied him in four cases and has yet to respond to the others.
It said Hafer is a public defender who wants to see the junque file for a bill that would revise partner family member assault laws in part to understand how it might affect her clients — but she hasn’t seen it.
The complaint notes the MEIC, which advocates for a clean and healthful environment, regularly submits requests for public information in its role as a legislative watchdog, “enforcing the right to know when necessary.”
The plaintiffs also want the court to stop Legislative Services from denying other similar requests based on “legislative privilege” and “declare that all materials and correspondence used to draft bills, including bill drafts, are public documents subject to the right to know.”
The lawsuit said the concept of “legislative privilege” that would allow legislators to hide communications and other documents related to drafting bills wasn’t around at the time of the Montana Constitutional Convention, and it said delegates expressed desire for openness instead.
“Public awareness and access seem to be the only tools to remind the great mass of public servants that their job is to serve the needs of the public and no other; they are paid by tax dollars to benefit the public above all else,” said the lawsuit, quoting from the convention transcript.
And it said the delegates never meant for legislators to do their work in secret.
“Delegates … never contemplated that the immunity provision could or would grant legislators complete power to evade public scrutiny,” the lawsuit said. It also said they rejected an attempt to allow the legislature to “hold secret proceedings.”
“Until a few months ago, the concept of legislative privilege as a mechanism for concealing documents and communications about official legislative business, including the information contained in junque files, had never been raised, considered, or otherwise addressed in Montana,” the complaint said.
It also said Montana courts have consistently held that “privileges shielding documents from the right to know ‘must be narrowly construed.’”
The plaintiffs are being represented by Upper Seven Law. In a statement, Upper Seven Executive Director Rylee Sommers-Flanagan said the Montana Constitution protects the right to know, and “the Legislature gets no free pass.”
“The constitutional convention delegates specifically discussed using the right to know to hold legislators accountable,” Sommers-Flanagan said in a statement. “This unconstitutional attempt to block Montanans from knowing what is inside public documents would be laughable if it weren’t so sinister.”
Derf Johnson, on behalf of the MEIC, said Montanans have had access to the files for decades, and that shouldn’t change.
“Now, the Legislature is blocking Montanans from reading public documents, opening the door for special interests and corporations to lobby, cut deals, and even draft entire laws for legislators in total secrecy,” Johnson said in a statement.“Transparency and accountability are bedrocks of the Montana Constitution, and we won’t allow politicians or their staff to eliminate Montanans’ constitutional right to know.”
Disclosure: Upper Seven has represented the Daily Montanan in a separate public records matter.