Guest opinion: Right to know amendments leave much to be desired

Montanans rightly take pride in our Constitution’s robust right to know. But as we’ve said before, a constitutional guarantee is only as meaningful as the process available to enforce it. Our state’s enforcement mechanism is lax, despite recent efforts to change public records laws. The result is a system in which the responsibility to gain information falls on the shoulders of records requestors — everyday Montanans who are trying to exercise their right to know — rather than on the public agencies which possess those records.

In 2023, the Legislature amended Montana’s right to know statute in an effort to establish clearer procedures for agencies responding to public information requests. Along with providing response guidelines for executive agencies, the amendments require all non-executive public agencies to respond to an information request in a “timely manner.” Additionally, the amendments require certain agencies to publish the internal response procedures used by the agency and statistical reports detailing what kind of information has been requested from the agency.

On paper, those amendments appeared to be a step toward greater transparency. In practice, however, many requestors have seen little improvement.

“I don’t think [the statutory amendments] helped at all,” said prominent Montana right to know attorney Mike Meloy. “Any time you give an agency the chance ... to avoid giving access to information, it seems like the agency will take advantage of that, and do what they can to obfuscate the information that the person is asking for.”

The statute’s “timely manner” requirement is a perfect example of a perhaps well-intentioned yet ineffective change. It sounds straightforward. But the term “timely manner” is undefined throughout most of the statute, leaving both agencies and Montanans without meaningful guidance. Requestors routinely ask Meloy what a reasonable time for a response is. The frustrating answer is often: it depends.

“I don’t know how many times I’ve had a requestor ask me the very same question that you are asking me: ‘What’s a reasonable time? It’s been three months now and I haven’t heard back,’” Meloy said. “I don’t know how many times I’ve heard that over the last several years. And it’s hard to answer that question, because a reasonable time is relative, it’s subjective — there might be some good reason for [a delay].”

Meloy explained that he sees a few common patterns in the ways agencies respond to information requests. Sometimes, said Meloy, a request is simply ignored, with weeks or months passing without response. Sometimes, he said, an agency will acknowledge receipt of a request but never follow up with the requested information. Other times still, the agency acknowledges receipt of a request by denying that the organization has the information in the requested format.

In all of these situations, the burden falls squarely on the requestor to continue emailing, calling, or even appearing in person to follow up. Those who live hours away from the agency, or who lack the time, resources, and procedural knowledge to continually press for answers, are left with few practical options.

To be sure, not every delay automatically reflects bad faith. Many smaller governmental entities simply lack the staff or resources to process requests as quickly as they should. But regardless of the reason, the result is the same. Access to public records depends much less on statutory requirements than on a requestor’s persistence.

“You just have to keep on [the agency] until they know that you’re not going away. I think they’re kind of hoping that you will go away if they wait long enough — you won’t be interested anymore,” Meloy said.

The reporting requirements added in 2023 have fared no better. Many agencies appear not to be complying with them at all. Whether that is because the agencies are unaware of the requirements or simply lack the resources to track the information, it seems clear that the additional statutory requirements are not giving the right to know any sharper teeth.

Perhaps the greatest shortcoming of Montana’s right to know black-letter legal framework, however, is that enforcement still depends almost entirely on litigation. When an agency refuses to produce records, the requestor’s sole remedy is to file a lawsuit. Even where attorney’s fees may eventually be available, many Montanans have little interest in taking a public agency to court just to obtain records that were constitutionally available in the first place.

There are no easy fixes. The Legislature could define “timely manner” with greater specificity, shorten response deadlines and require agencies to prioritize public information requests. The Legislature could mandate that the state pay attorney’s fees for requestors who successfully take agencies to court for right to know violations. (Right now, said Meloy, the award of fees is discretionary, and courts are hesitant to exercise their discretion in favor of records requestors.) But even these changes do not prevent agencies from ignoring and delaying requests, forcing Montanans into costly litigation. It’s clear that a solution depends as much on the statutory enforcement mechanism as it does on the good-faith participation of Montana’s record custodians.

Montana’s constitution gives its citizens one of the strongest rights to government transparency in the nation. But right now, that guarantee is only cemented on paper. Until requestors can obtain public records without repeated follow-up — or a lawsuit — the right to know will remain a promise that is far easier to proclaim than to exercise.

Addie Slanger is vice president of Montana Transparency Project.