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Litigating your right to know

by Jacob Linfesty
| July 11, 2024 12:00 AM

In our prior columns, we’ve written about your fundamental right to know and how it provides all Montanans with an important way to interact with our state and local governments: You have a right to know how your government makes decisions, spends money and conducts its business, and you can get that information by simply asking the most relevant state or local agency (and we’d love to help you do so!).  

Much of the time, Montanans can make requests and receive information with no personal cost.  

But as hinted in our last column about the dangers of fees that agencies can impose to restrict your right to know, the government may be emboldened to restrict your right because it knows that your only recourse for a denied request is to spend thousands of dollars to sue the agency that denied the request in court.  

Information request denials can happen for legitimate reasons. Perhaps the information isn’t ripe for public disclosure under the right to know because the needs of individual privacy outweigh the merits of public disclosure. But information can also be incorrectly denied. State agencies can reject requests due to a good-faith misbalancing between individual privacy and the public’s right to know. Agencies could also reject requests to hide information from public disclosure — which is exactly what this right is meant to prevent.  

In either case where the state incorrectly denies a request, the only recourse available to you is to sue the agency in court. That could cost you tens of thousands of dollars. At the end of the case, if you win a judge will order the agency to produce the information you requested. But the judge won’t necessarily order the state to pay your attorney’s fees, and most Montanans can’t afford those fees for an information request.  

But there are solutions to this problem. A simple, one line bill passed by the Legislature and signed by the governor could mandate that the state agency which denied your request pay your attorney’s fees if a court finds the agency violated your constitutional right to know. 

Requiring the state to pay attorney’s fees when it loses a right to know case has several benefits. First and foremost, citizens whose right to know was violated by the state will have their request fulfilled at no additional monetary cost to them. The state would also be more reluctant to deny requests, out of fear of not only paying their own attorneys (whom they are paying anyways) but also paying for the citizen’s attorney. The benefits would further encourage the atmosphere of openness in government that the right to know was designed to create. 

There are other ways to address the attorney’s fees problem. In one such solution, the state could create a judicial position designated to review right to know requests that have been denied. Your information request denial could be reviewed by an administrative law judge at no cost to you. If you disagree with that judge, you could seek further recourse in court.  

We believe that the right to know is essential to democracy in Montana, to prevent the secret conduct of government and to increase the government’s responsiveness to citizens. Unfortunately, if costly litigation remains the only way to remedy a violation of the right, it is impossible for most Montanans to fully realize their right to know. Fortunately, we can demand better from our government and encourage simple, necessary changes to the right to know to ensure that citizens can understand how our money is being spent, how decisions are being made, and how the government conducts the business of our state.  

Visit our website at montanatransparencyproject.org. If you have questions, comments, column topics you’d like us to address, or if you want to submit your own information request, contact us at info@montanatransparencyproject.org and we would be happy to help.

Jacob Linfesty is president of the Montana Transparency Project.