Montana Supreme Court orders judge to review Gianforte’s bill-tracking documents

The Montana Supreme Court on Tuesday ruled that Gov. Greg Gianforte may have legitimate legal reasons to withhold documents that could shed light about which legislation he supports or opposes, but that he can’t refuse to turn those over without having a district court judge review them. Furthermore, the court said that state law doesn’t confer any special privileges to withhold documents just because he’s the governor.

The narrow 4-to-3 decision comes just a few days before the beginning of the 2025 Montana Legislature, but the lawsuit that spurred the appeal centers on Agency Bill Monitoring forms Gianforte was using to gather feedback and keep track of bills during his first session as governor in 2021.

Plaintiff Jayson O’Neill had originally asked to review the forms, but was denied access, citing an executive privilege that the majority said only exists in very limited cases, and on a document-by-document basis.

Attorneys for Gianforte argued that a federal executive privilege entitled the governor to withhold the documents, and also claimed that if they were to become public, it would “chill” the open dialogue the governor needs to have with state staff.

In the majority opinion, authored by Justice James Jeremiah Shea, three fellow justices agreed that Gianforte likely has a few very narrow privileges, like an attorney-client privilege, but dismissed the notion that governors or other elected leaders have the right to withhold public documents based on an exception in federal law. Court documents suggest that the agency bill tracking forms were shared with more than Gianforte’s attorneys, calling into question if the attorney-client privilege even applied in the case.

That means the bill-monitoring forms will be reviewed privately by Lewis and Clark District Court Judge Kathy Seeley in her chambers, legally termed an “in camera review.” It will be up to her to decide whether the tracking forms should be made public, fall under an exception and withheld, or be partially released.

Previously, Seeley had ruled that Montana recognized no special executive privilege for the governor, which the Supreme Court upheld. However, the state Supreme Court also said that before the documents are released, she must review them to ensure no other exceptions apply.

Little else is known about the bill-tracking forms because Gianforte’s own counsel, Anita Milanovich, has argued in court filings that even disclosing the topics or the people involved would create a “chilling effect” that would inhibit honest communication between the governor and other state staff.

The state’s highest court has long maintained that the public’s right to know is only hemmed in by certain privileges, like the attorney-client relationship, or when an individual’s privacy clearly outweighs the public’s right to know.

After Seeley makes her determination, either O’Neill or Gianforte could challenge those decisions, meaning the dispute is far from over.

However, both the majority and minority decisions lean on state history and Montana’s expansive public records rights enshrined in the Montana Constitution, which are broader than and distinct from similar provisions in the federal Constitution.

“We conclude that the governor’s claims of privilege in the Agency Bill Monitoring (forms) are not precluded as a matter of law, but must be evaluated by the district court upon in camera review of the documents for which the privilege is claimed,” the majority said. “On remand the district court may consider in tandem which, if any, privileges apply to which portions of each document.”

THE MINORITY opinion, written by Justice Laurie McKinnon and joined by Justice Ingrid Gustafson as well as District Court Judge Leslie Halligan, who heard the case in place of Chief Justice Mike McGrath, agreed with the majority that the bill-monitoring forms should be reviewed by Seeley.

“There is no question that the governor must turn over the (Agency Bill Monitoring) forms for in camera review,” it said.

But the minority said that the documents should be released because they were part of another Montana Constitutional right — the right for the public to access information pertaining to the deliberation process of government officials and leaders.

In that context, McKinnon’s dissent emphasized the Constitution’s right-to-know provisions were created to protect “the people from governmental abuses, not to protect the government from the people.”

“The governor’s argument that he needs protection from the public disclosure so as to provide himself a strategic advantage against another branch is illogical, given the context,” the dissent said. “The governor’s decision to veto a bill must be made for the benefit of Montanans, not for the benefit of himself or his branch. It strains credulity to suggest that the governor should be afforded the right to remain free from public intrusion while making determinations which have unequivocally been determined ‘the public’s business.’”

Darrell Ehrlick is the editor-in-chief of the Daily Montanan, a nonprofit newsroom.