The state Civil Service Commission cannot charge fees to conduct legal reviews on documents produced under public records requests, a Helena judge ruled this week.
The decision came after a legal action arising from a request for public information made last year by a reporter from The Billings Gazette, which is part of Lee Enterprises.
The reporter requested records from the PSC, which oversees public services in the state. Three months after the request, the agency told the reporter that it had found nearly 25,000 responsive documents and would need a $31,000 advance payment to complete a legal review before we can release anything.
Lee Enterprises owns the Gazette, Missoulian, Helena Independent Record, Montana Standard in Butte and Ravalli Republic.
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The media company sued the PSC objecting to the charging of legal fees. In subsequent recording requests, the Gazette reporter was also charged a $240 fee to retain the recordings so they were not deleted while the request was processed and quoted an additional $870 to review more documents.
In court filings and arguments, the news company said a legal review by a government agency was not an appropriate cost to be charged under state law. Montana allows fees to be charged to cover the actual cost of producing records, but newspapers argued that state agencies already employ attorneys and that if agencies chose to conduct legal reviews, it was their own burden.
David McCumber, local news director for Lee Enterprises news agencies in the western United States, said on Friday: “The court agreed with Lee Montana Newspapers that state agencies charging onerous fees for legal review of public records is not supported by our Constitution, and that the right to access public records should not be conditional on the ability to pay these fees.
“This is a huge win for government transparency and for the public’s right to know.”
The PSC argued in court that it was necessary to review the documents before making them public. The agency did not return a request for comment emailed Friday night.
The state Constitution provides that the people of Montana have the right to examine documents and observe proceedings of state government, except where confidentiality requirements outweigh the public’s right to to know. In 2015, lawmakers passed a law stipulating that agencies could charge a fee to fulfill a request for public information and limited those fees to “actual costs directly related to fulfilling the request”, including “the time required to collect public information”.
In court, Mike Meloy, the lawyer representing the newspapers, argued that by charging such high legal fees, the PSC was setting up barriers to accessing documents that should be available to the public.
“According to Lee Enterprises…fees have a chilling effect on the public’s right to know because their right to access public records should not be conditional on their ability to pay. The court agrees,” Judge Helena Mike Menahan wrote in her Monday order.
The PSC had argued that the legal review was a “real cost directly related to executing the request” and that the agency needed to expend real resources paying someone to perform the review. But Menahan said the cost was already within the scope of work for existing staff.
Menahan continued that the PSC has a duty to complete requests for records and that the salary of legal staff does not depend on the project they undertake for the agency.
“No matter how inconvenient the PSC may find requests for public records, they are no less part of the agency’s duties than a fee proceeding,” Menahan wrote.
Menahan also rejected an argument by the PSC that the cost of the legal review falls under the provision that an agency can charge for “time required to collect public information.”
“The collection of public information following a request is in the interest of the requester. Legal review to prevent disclosure of public information is in the interest of the person whose information is being protected when the agency wishes to avoid violating privacy rights,” Menahan wrote. “…The agency cannot shift its burden of identifying and protecting private information to a party requesting public information.”
In a court hearing, a PSC lawyer also argued that the legal fees allow the agency to negotiate with the plaintiffs to narrow their searches.
While Menahan said the agencies have a legitimate interest in reducing the burden of large-scale searches, “there is a question here whether the PSC is using the threat of prohibitive legal fees as leverage to negotiate a request for information. more restricted public”.
By way of example, Menahan said, as the Gazette reporter requested “all travel invoices, expense reports, and reimbursement of private expenses for PSC and Department of Public Regulation personnel,” the PSC searched for emails using the term “expense reports”. which generated many documents unrelated to what the reporter requested. Indeed, the PSC frequently processes expense reports from regulated service providers.
“This is not a problem where the requester needs to refine their request, but rather the agency needs to refine their research methods,” Menahan wrote.
Menahan said the CPS’s interpretation of the laws meant that “the right to public information can only be available to those who can afford to pay for it and can be further limited to the amount a party can be willing to pay”.
Menahan continued that an agency can negotiate if it feels a request is more extensive than expected to reduce what is requested, but “it cannot negotiate the amount of information a party may receive based on the amount that she is ready to pay”.
The newspapers had also asked the judge to block the charging of the withholding notice fee, but Menahan felt it was part of the actual cost of processing a request and said he could still be charged.
