Rep. Ed Stafman, D-Bozeman, said he doesn’t think the governor should get to withhold public records just to gain a tactical advantage over the Montana Legislature.
Monday, the Senate Judiciary Committee heard House Bill 271, by Stafman, to limit the ability of the Governor’s Office to keep documents out of public view, the Daily Montanan reports.
Stafman said the bill “would restore transparency and open government in the executive branch to what it has consistently been for at least 50 years.”
In a lawsuit still playing out in the court system, a member of the public tried to see “agency bill monitoring” forms the governor was using to gather feedback about legislation and its sponsors in 2021.
The Gianforte administration argued “executive privilege” protected those forms from public view in part because the governor needs candid feedback, and openness would diminish that candor.
In January, the Montana Supreme Court found Gov. Greg Gianforte may have legitimate reasons to withhold the information, but he can’t refuse to turn over documents without having a court review them to find out.
The court also said the governor doesn’t get to keep them secret just because he’s the governor.
But Stafman said Montana hasn’t previously recognized executive privilege, the Supreme Court crafted a narrow decision based on common law, and the Legislature has the authority to overturn common law through statute.
He also said the court decision effectively reduced “the timely right to know.”
And Stafman said his bill intends to fix those problems. He said it would be consistent with the right to know protected in the Montana Constitution, and it fixes a practical problem of ensuring people can in fact see documents without being forced to go to court.
Stafman said his bill aims to ensure documents from the Governor’s Office related to the Legislature, politics and policy remain public, and it would keep personal and private information confidential.
Last month, the bill passed the House 56-44, and Stafman told the Senate Judiciary committee he couldn’t recall any member of the public who testified against it earlier.
At the hearing Monday, Stafman agreed some information in state government is protected, such as medical records, income taxes records, and more (he had a long list of those items available).
However, Stafman also said he would not be opposed to seeing the committee amend the bill to establish even more openness in the other two branches of government, the legislature and the judiciary.
Generally, he said he would like the Legislature to send a message that the goal isn’t about the governor personally, it’s about “sunshine” in government.
“This isn’t about you. This is about open records,” Stafman said.
No one spoke against the bill, and Derf Johnson, with the Montana Environmental Information Center, the only proponent Monday, said such legislation would help him assist the public.
The MEIC receives calls from people worried about, say, a potential gravel pit next door or other activity that might affect property rights and property values, Johnson said.
Johnson said transparency is good for the public, it’s good for holding government accountable, and it’s part of the Montana Constitution’s protection of the right to know.
The bill would set boundaries that ensure the governor is subject to public record requests under the right to know, Johnson said, as he should be.
“He makes important decisions that really impact people’s lives on a day to day basis,” Johnson said.
Sen. Theresa Manzella, R-Hamilton, said the governor had endorsed several candidates in a primary, and she wanted to know if more information about endorsements might be available if the bill were in place — or if it would be protected.
“We were interested in finding out how deep that went,” Manzella said.
Stafman said it was a good question, and given the matter was political, he believed it would be public.
“Without this bill, he might very well say it’s private. In fact, he almost surely will,” Stafman said.
In response to a question from Sen. Barry Usher, R-Billings, Stafman said the Governor’s Office had not weighed in on his bill.
As part of his presentation, Stafman provided the committee a letter from Evan Barrett, who worked for previous governors, was involved when he was not on staff, and talked with legal counsel for other former governors.
The letter said Barrett personally did not recollect executive privilege being asserted, and his research did not turn up any such claims either going back decades.
The committee did not take immediate action on the bill Monday.
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