Gianforte wields 'executive privilege' argument against sensitive records requests

Amanda Eggert

Montana Free Press

Coming into office last year as Montana's first Republican governor in nearly two decades and looking to implement a muscular conservative agenda made possible by his party's unified control of the Legislature and governor's office, Gov. Greg Gianforte's leadership has attracted scrutiny from media, environmental groups and left-of-center political activists.

As was intended by the framers of Montana's 1972 Constitution, who included an explicit "right to know" as part of the Constitution's bill of rights, that scrutiny has been aided by Montana's permissive public records laws, which grant interested members of the public a broad legal right to access the workings of their government.

The Gianforte administration has, however, at times pushed back against efforts by the public to exercise that right to know to pry loose potentially politically sensitive information from his office, driving critics to resort to litigation.

In two lawsuits, one brought by an environment and public lands activist and the other brought by the Montana Environmental Information Center, the Gianforte administration has argued the governor's "deliberative process" should be exempt from the state's open records law.

Attorneys representing Gianforte say such protections are necessary to give the head of the state's executive branch the ability to consider analysis, information and advice unfettered by concerns about what that material would look like if released to the public, thereby furthering "the public's interest in good, effective governance." 

In one court filing, Gianforte's attorneys argued the governor's office should be categorically exempted from the state constitution's right to know guarantee, arguing that the "Office of the Governor of Montana is not a 'public body' or an 'agency of state government'" as those concepts were construed by the constitution's drafters.

The governor's attorneys softened that latter argument in subsequent filings, and judges overseeing the two cases have yet to weigh in. However, several attorneys versed in Constitutional law said in interviews with Montana Free Press that Montana courts have not historically recognized the protections Gianforte is claiming.  

Mike Meloy, a Helena attorney who works with the Montana Freedom of Information Hotline, a group that provides free legal advice about access to public records and meetings, describes the deliberative process privilege argument Gianforte's attorneys are presenting as "a total fabrication."

"I've been doing this for 50 years, and no one has argued that a document can be withheld from public inspection because it contains matters related to deliberative process," Meloy said. "It might be a basis for withholding a document someplace else, but not in Montana."

"If the governor is asserting that in courts, he's going to lose that argument," he added.

Meloy is currently representing the Montana Democratic Party in separate litigation around Republican-backed election administration laws. In his role with the Freedom of Information Hotline, he was at times critical of the administration of former Gov. Steve Bullock, a Democrat.

Gianforte spokesperson Brooke Stroyke declined to make an attorney in the governor's office available for an interview and referred MTFP to legal filings in response to questions about the governor's approach to balancing right to know and communications protected from disclosure.

Meloy also said "there's no question" that denying citizens the ability to review government documents will deter individuals and organizations from investing the time, effort and money to chase down the material they're seeking.

"If a person knows they're going to be in for a court fight in order to get a document, it has a significant chilling effect on their willingness to go forward," he said.

O'Neill v. Gianforte

Jayson O'Neill, a political consultant who formerly led the left-leaning Western Values Project, submitted a records request last May asking the governor's office for agency bill monitoring forms, which summarize measures expected to influence agency operations, flag potential Constitutional issues, and advise the governor as to whether a veto is recommended. Two months later, the governor's office denied the request, citing attorney-client privilege. O'Neill filed a lawsuit over the records request in September. He is represented in part by Helena attorney Raph Graybill, who was the Democratic nominee for Attorney General in 2020.

Gianforte is represented in the case by Helena-based private attorneys Dale Schowengerdt and John Semmens. In the initial response to O'Neill's complaint, Schowengerdt argued the governor is not required to produce documents related to his "private deliberations and legal counsel regarding legislative proposals" and that the documents O'Neill seeks aren't "public information" but "confidential information."

He also asserted that the "principle of separation of powers" protects the requested documents from disclosure and that "the Office of the Governor of Montana is not a 'public body' or an 'agency of state government' as contemplated by Article II, Section 9 of the Montana Constitution." (Article II, Section 9 contains the right to know provision, which holds that "No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.")

Later filings from the governor's office, including a brief laying out their position for the judge, don't emphasize the "not a 'public body'" argument. Instead, they reference a collection of court decisions, largely from other states including Vermont and New Mexico, that support the notion that governors should be able to work with more privacy. The governor's attorneys argue that legal precedent creates what's known as a common law basis for deliberative privilege even though the concept isn't explicitly defined in state statute. Montana courts have long recognized attorney-client communications as privileged material under common law, Schowengerdt argued, saying a similar protection should be extended to the governor's deliberations on policy matters.

"Because the executive communications privilege and deliberative process privilege also have long existed under Montana's common law - and are necessary for integral governmental and public purposes - the Court can (and should) recognize and apply those privileges now," he wrote. "Requiring the Governor to publicly disclose the [agency bill monitoring forms] would not ensure the Montana public is provided with additional information; rather it would damage the public interest by effectively limiting the Governor's access to necessary analysis, information, and advice while executing the duties imposed by Article VI, Section 10 of Montana's Constitution." (Article VI, Section 10 outlines the governor's veto powers.) 

Graybill, who served as Bullock's chief lawyer from 2017 and 2020, said that role gave him "quite a bit of experience sitting in that chair and deciding what goes out in response to a public information request."

In an interview with MTFP, Graybill said he can appreciate the reluctance to release sensitive information, saying his former boss had on occasions released sensitive communications. In late 2015, for example, Bullock produced communications with his former lieutenant governor, Angela McLean, in response to a Billings Gazette records request. Those emails, exchanged between personal email accounts, outline an increasingly fraught relationship between the two.

Graybill said Montana's Constitution is clear that the public has a right to access the governor's communications. The appropriate way for the governor's office to respond to a request, he said, is to sift through the requested information and create what's known as a "privilege log" to exclude the truly protected documents - those that would infringe upon an individual's privacy or are subject to attorney-client privilege, for example. The remaining material should then be turned over, he said.

Graybill said the Gianforte administration appears to be issuing blanket denials instead of taking the time to identify which records it believes should and shouldn't be subject to public disclosure - a shift he described as a "sea change."

"We don't want true attorney-client information, but to the extent you withhold something, you have to tell us why," he said. "Produce a privilege log and give us a chance to assess it."

Graybill said the state's argument shifted between their summer 2021 correspondence with O'Neill and their later legal filings, when language asserting Gianforte's right to protected communications related to deliberative process started appearing. He contends that these privileges are "completely made up" as far as Montana law is concerned."

"It's hard to imagine something more offensive to the Montana Constitution's right to know than the idea that the governor, an elected official, can make some things secret merely because he is the governor. I imagine our framers rolling over in their graves that we'd give that kind of power to one person in the state government," Graybill said.

Both sides have submitted briefs to the Lewis and Clark County District Court. Graybill said he expects Judge Kathy Seeley will schedule oral arguments, though it's unclear if that development is days, weeks or months out.

Montana Environmental Information Center v. State Of Montana

Around the same time that Schowengerdt was preparing Gianforte's defense to the O'Neill lawsuit, Anita Milanovich, the governor's chief lawyer, cited the deliberative process argument in communications with Montana Environmental Information Center, an environmental nonprofit that has a decades-long interest in mining issues.

Nov. 29 of last year, MEIC Deputy Director Derf Johnson filed a request with the Gianforte administration for emails, letters, text messages, faxes, reports, assessments and meetings notes related to mining in the state. More specifically, MEIC and Earthworks, a national environmental group with the stated goal of protecting communities from adverse impacts associated with mineral and energy development, requested copies of communications between the Gianforte administration and Hecla, an Idaho-based mining company that seeks to open two mines in Lincoln County.

The request included information on communications that reference the "bad actor" provision of Montana's Metal Mine Reclamation Act, which prevents mining executives who've failed to adequately reclaim once-operational Montana mines from opening new mines in the state until any outstanding reclamation work or debts associated with clean-up efforts have been addressed.

The Bullock administration used the bad actor provision to block Hecla from opening the Rock Creek and Montanure mines, which contain sizable deposits of silver and copper that various mining companies have sought to extract since the early 1980s.

Under Bullock, the Montana Department of Environmental Quality determined Hecla could not move forward with the Rock Creek and Montanure mines because the company's president had previously been an executive with a mining company that operated cyanide heap-leach gold mines in central Montana before going bankrupt, leaving the state and federal governments to remediate a Superfund site that will require expensive water treatment in perpetuity. Acid mine drainage from the Zortman and Landusky mines continues to contaminate downstream water supplies, including parts of the Fort Belknap Indian Community.

Hecla fought DEQ over its decision to deem its president, Philip S. Baker, a bad actor. The matter ended up in court. After Gianforte took office last year, the agency reversed course and said it wanted to drop the lawsuit, spurring MEIC, other environmental and tribal groups to sue the agency, arguing the state was abandoning its legal duty. 

Johnson said it initially looked as though the state would comply with MEIC's request, albeit slowly. After waiting three-and-a-half months for the documents, MEIC sued in March to compel the state to comply with the request. The governor's office responded with an April 19 letter denying the request, citing the environmental groups' bad actor lawsuit and the deliberative process argument.

"[I]t has become clear that MEIC's request is an effort to facilitate its litigation against DEQ regarding the dismissal of the bad actor litigation," Milanovich wrote. "Montana courts have held that such a use of the Right to Know is improper, as litigation procedures provide appropriate mechanisms for securing such information."

Milanovich then turned her attention to phrases included in MEIC's March 15 complaint: that MEIC is seeking information about Gianforte's role in learning "the decision-making that led up to the decision" to dismiss the bad actor claims against Hecla and its president.

"As a general matter, in addition to any applicable attorney-client privilege protections, the deliberative processes of the Governor as executive are privileged and so are protected from disclosure," she wrote. "Insofar as these documents exists that would be responsive to MEIC's request, they are not subject to disclosure."

Johnson countered that a document that's otherwise subject to right to know laws shouldn't become privileged simply because litigation related to it exists. He also said that he could see some of the information MEIC has requested being privileged under attorney-client protections, but denying all of the requested information feels suspect to him.

"That doesn't pass the smell test, that doesn't pass the laugh test," Johnson said. "They're not doing themselves any favors by basically telling the public every document on this matter should not be viewed by the public."

Montana Attorney General Austin Knudsen submitted a brief in support of the governor's office in the MEIC case. Kyler Nerison, a spokesperson for the attorney general, declined to make the attorneys who prepared that filing available for an interview.

MEIC and Gianforte's office have filed all of the major briefs that are anticipated in the case.

Aug. 5, MEIC requested a hearing and the group is currently awaiting an order scheduling further court proceedings.