Shut the 'right to know' loophole

A bill that reinforces the right of Montana citizens and media to access public records and deliberations is thankfully moving right through the legislative process.

Senate Bill 217 cleared the Senate on a 47-3 vote and it should have similar, broad bipartisan support in the House. That’s because it will put an end to a ridiculous way for public agencies to frustrate and evade the public’s constitutional right to know.

Specifically, the bill would allow judges to award legal costs to those who prevail in a right-to-know lawsuit. As it is now, plaintiffs can recover their costs, but not defendants. That has allowed a massive loophole whereby a state or local agency can sue a public information seeker first, making them the defendant without the ability to recover court costs.

That’s the way it worked when the Billings Gazette sought information from a local school district regarding alleged sexual misconduct between two teachers. The school district filed a preemptive lawsuit to block access to the information, and lost the case. The Montana Supreme Court subsequently ruled that the newspaper couldn’t recover its legal costs, even though it had prevailed, because it was the defendant.

It’s pretty obvious that if public officials are fairly certain they are going to be sued for information, they have good reason to think: Why not take the initiative and file suit first to at least save on legal costs if we lose in court?

While that might be smart thinking on their part, it is an outright discouragement for citizens and the media to pursue information they are constitutionally entitled to.

Why defend your right to the information in court, knowing that it will be spendy even if you win? The government should not be using slick legal maneuvers to avoid its responsibilities.

Senate Bill 217 needs to be signed into law, hands down.