Montana media organizations petition to join right-to-know lawsuit

Eight Montana media organizations, including Montana Free Press, have petitioned to join a lawsuit concerning back-channel communications between Montana legislators, lobbyists and stakeholders during the drafting of bills.

The lawsuit stems from legislative staff redacting details about who state lawmakers are consulting with while drafting bills. That information began being blacked out in September following a court ruling shielding the communications of Republican Sen. Keith Regier, R-Kalispell, from voters who sued over the Legislature’s redrawing of political districts in 2023.

The news outlets argue that the Legislature took the court order favoring the Kalispell senator in a specific case too far, violating public access to back-channel communications on bills — a right established by court order in 1995. More broadly, the media petitioners argue that by redacting the information, legislators are violating the right-to-know provisions of the state Constitution. 

“The Montana Constitution is unambiguous. ‘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 of individual privacy clearly exceeds the merits of public disclosure,’” the news outlets argue. They ask the court to order Legislative Services to stop redacting documents until the lawsuit is decided, likely several months from now.

In addition to Montana Free Press, the media petitioners include The Associated Press, Montana Broadcasters Association, Montana Newspaper Association, Hagadone Media, The Daily Montanan, Adams Publishing and Lee Enterprises. 

At issue are “junque files,” folders concerning bill drafts that also contain communications between lawmakers, lobbyists, legislative staff and other parties providing input as bills are written. A junque file might show, for instance, communications between oil refinery lobbyists and a lawmaker proposing a tax cut for pipelines. The records also show when amendments to a bill are being submitted directly by a lobbyist perhaps working for a government utility, or a teacher’s union.

In October, a month after Legislative Services started implementing redactions, the Montana Environmental Information Center sued to stop the practice. MEIC, a Helena-based nonprofit focused on state and federal environmental policy, was joined in the lawsuit by Great Falls resident David Saslav and Butte public defender Kaylee Hafer. 

All three plaintiffs were denied access to unredacted junque files this fall. 

It was MEIC that prevailed in a 1995 state lawsuit that determined junque files to be public information.

None of the parties in the October lawsuit against Legislative Services objected to the Montana press plaintiffs intervening in the case, which is before a Cascade County District Court.

The court case that sparked the redactions was brought by voters challenging the 2023 Legislature’s redrawing of Public Service Commission districts. The five-person commission regulates monopolies in cases where, by law or circumstance, customers have no opportunity to shop around for a better deal. The PSC districts are decidedly Republican and slice up seven of Montana’s largest cities in a way the plaintiffs argued diminished the collective voting power of urban Montanans. 

The bill that redrew the districts was Sen. Keith Regier’s. When plaintiffs Montana Conservation Voters, former Secretary of State Bob Brown and others petitioned for Regier’s bill-drafting communications, Regier successfully argued that he shouldn’t in a civil action have to testify or produce evidence showing his deliberations for redrawing the districts.

The media organizations seeking to join the lawsuit against Legislative Services argue that Regier’s court-granted privilege is specific to the redistricting lawsuit and shouldn’t extend to matters outside the court where the public’s right to inspect records is long-established.