Gianforte claiming executive privilege in public records lawsuit

Gov. Greg Gianforte doubled down on his claim of executive privilege in the latest filings in a lawsuit concerning whether forms his office used to track legislation during the 2021 legislative session should be available to the public.

Citing a Montana Supreme Court case, Gianforte in part argued the documents need to remain private to protect “the integrity of government.”

Jayson O’Neill, former state employee and Montana Democrats communications professional, filed a lawsuit in Lewis and Clark District Court in 2021 after the Governor’s Office denied a request for “Agency Bill Monitoring Forms.”

The forms were a means for the Gianforte Administration to track and give input on legislation. Gianforte’s Office and counsel insist they’re protected by attorney-client privilege and argue the entire bloc of forms is not public information.

In a cross-motion for summary judgment on July 1, Gianforte argued that the purpose of the forms was for state agencies to provide the Governor’s Office with a bill summary along with their recommendation of whether the governor should sign or veto the law if it passes.

The July filing explains that each document, in part, “contains legal opinions, legal advice, or other advisory opinions or recommendations on formulating official government policy that were given frankly and in confidence to the Governor…” He argues the forms don’t fall under the purview of the Montana Public Records Act because they are protected by executive privilege.

On July 15, the plaintiff filed a brief in opposition to Gianforte’s motion, arguing in part that attorney-client privilege doesn’t require that documents must be entirely withheld and that the governor’s argument flies in the face of the Article II Section Nine of the Montana Constitution, or “Right to Know.”

In response, Gianforte’s attorneys cited the 2019 Montana Supreme Court Case Crites v. Lewis & Clark Co., which involved Montana’s “Right to Know.” In that case, a district court denied a petition for release of confidential criminal justice information regarding a murder investigation, and the state high court agreed.

Citing from the Crites opinion, Gianforte argued that “‘Article II, Section 9 may yield to countervailing societal interests—beyond the right to individual privacy,’ including interests ‘necessary for the integrity of government.’”

He also cited McLaughlin v. Montana State Legislature, which sparked controversy in 2021 when legislators issued subpoenas for emails related to legislation that could come before the court from Court Administrator Beth McLaughlin.

Gianforte argued that Montana’s courts were not subject to the “Right to Know” in the context of that case “because the ability to engage in private judicial deliberations was integral to fulfilling their constitutional purpose.”

“The Governor advances that same argument here.”

O’Neill’s attorneys in their July filing also brought up the 1972 Constitutional Convention where the “Right to Know” language was drafted, saying that the framers wanted to ensure open government and “go considerably farther” than what was already on the books.

The plaintiff quoted Delegate Ben Berg, who said he wanted to see all agencies open to the public with open deliberations and documents available for inspection.

“Constitutional changes to gubernatorial power made government more streamlined, effective, and accountable to the people—not more secretive,” the July filing read.

Gianforte argued that the Con-Con citings from O’Neill didn’t reference Montana’s executive or judicial branches, “let alone suggest documents memorializing their constitutionally required deliberations must be made public.”