'Gubernatorial Privilege' decision yet another barrier to transparency in Montana
In its second decision of the new year, O’Neill v. Gianforte, the Montana Supreme Court determined that “gubernatorial privilege” allows the governor to refuse to hand over otherwise public records that contain “candid advice” given to him by officials within the executive branch. In doing so, the court handed the state another tool it can use to refuse public records requests and place additional hurdles for Montanans exercising their right to know.
“This O’Neill decision is a real significant departure from the court’s [past] precedent,” said right to know attorney and advocate Mike Meloy. “This is a bad, bad decision.”
In O’Neill, plaintiff Jayson O’Neill exercised his constitutional Right to Know by requesting Agency Bill Monitoring Forms from the Office of the Governor. These documents are thought to be used by the Governor’s Office to track legislation during the legislative session. The Governor’s Office denied the request, asserting the forms were privileged in their entirety.
The Supreme Court agreed with the governor, finding that Montana recognized a “gubernatorial privilege” that protects from public disclosure records that contain candid advice to the governor from his aides. The court cautioned against a broad application of the privilege, directing that it applies only when disclosure of public information would have the effect of chilling candor.
The court’s assurances on the narrowness of this privilege ring disappointingly hollow against the practical effects of the majority’s decision. The problem is twofold, Meloy explained.
First, the Supreme Court didn’t direct lower courts as to when the new privilege should apply.
“There’s no analysis, no step-by-step process, [the O’Neill authors] don’t tell the district courts how to decide [when gubernatorial privilege] applies.” Meloy said. “So, when a district court has to deal with that, they don’t have any way of knowing what the Supreme Court meant.”
Second, and more concerning, is that the only way to contest a “gubernatorial privilege” refusal is by suing to get the documents in front of a judge, who can then determine if the privilege applies. Filing a lawsuit is often an immensely time-consuming and expensive endeavor, one most people simply cannot afford. But litigation is the only way to fight a denied request. As we’ve explained before, this paradox means that for many, the right to know is often a right in name only. Most Montanans will have no recourse when the governor violates their constitutional right to know in claiming this privilege.
This ruling gives the state an even more legitimate basis upon which to force legal action. And the governor can simply assert this privilege any time he wants to hide from public scrutiny.
“Any significant advice that’s been reduced to writing, that arguably could serve as a basis for some gubernatorial decision, is included within the scope of the privilege,” Meloy said.
Even if a citizen has the means to sue the governor and contest the assertion of gubernatorial privilege, he will still be at a disadvantage. In court, the government will show the allegedly privileged document to a judge, who will then decide whether the privilege applies. The requestor remains in the dark, not able to see the document and, therefore, not able to make an effective counter argument as to why the information should be released.
“The biggest hurdle you have in overcoming that assertion [of privilege] is that you can’t see the document,” Meloy said. “So when the court is conducting that [review], the only information they get is from the government, because they’re the only ones that can see it. So it puts the challenger to extreme disadvantage.”
It’s likely many Montanans seeking information from the governor will feel the effects of O’Neill. And it’s possible the privilege could be broadened even further, to the county and city level.
Justice Laurie McKinnon warns in her O’Neill dissent that the recognition of this privilege “open[s] the door to the near-certain abuse and deterrent consequences,” threatening the erosion of Montanans’ “enduringly powerful right to know.”
This privilege is antithetical to the broad right to know promised to us in the Montana Constitution. Our government is strengthened — not hindered — by citizen oversight. The Supreme Court got it wrong.
Addie Slanger is vice president of Montana Transparency Project.