(C) Daily Montanan This story was originally published by Daily Montanan and is unaltered. . . . . . . . . . . Judge: State may charge for legal review prior to records release – Daily Montanan [1] ['Keila Szpaller', 'More From Author', '- October'] Date: 2022-10-30 State agencies can charge the public fees to review documents for privacy and other interests before releasing them as “public information,” according to an order from Yellowstone County District Court this week. And they should take time to review records, the judge said. “Quickly producing documents in a few hours without reviewing them, as Petitioner would like Respondents to do, would violate the responsibility to balance the Constitution’s right to know and right to privacy provisions, as well as other statutory provisions,” said Judge Mike Salvagni in the Oct. 26 order. The judge also said the statute is clear and unambiguous: “The plain language of the statute authorizes a public agency to charge a fee for all real costs directly related to carrying out a public records request — without anything intervening — in the manner that produces as little waste, expense and unnecessary effort as possible.” In December 2021, plaintiff Gene Jarussi, a Billings lawyer, sued the Governor’s Office, Department of Justice and Department of Administration after he made records requests but didn’t get documents. The order said he didn’t pay the estimated costs to produce the records, and in the lawsuit, he asked the court to find “legal review and records redaction are not proper costs.” Although the judge found the costs were proper, he also acknowledged a couple of other Montana judges made different decisions in recent cases. One order found the State Auditor could not charge for legal review, Salvagni said, and another found the Public Service Commission could not charge for review, although for different reasons. But Salvagni said he isn’t bound by those decisions, and his job is to answer the question in front of him, and he’s simply interpreting statute. Jarussi asked for a lot of records. In part, his request called for the state to produce “all emails, text messages, call logs, or other electronic communication sent to, or received by, accounts held by Lieutenant Governor Kristen Juras” from when she took office until the date of production, the order said. “It should be noted that the date of production is a continuing date,” the court said. The judge noted the Governor’s Office said the initial request alone “implicated over 15,000 emails, plus additional attachments,” and that it would take 950 work hours and $30,266.16 to fulfill the request. The plaintiff agreed to narrow the request, and the Governor’s Office estimated the new bill to be $5,479.99 for 173 hours, based on hourly pay of the employees who would do the work, administrative staff, legal counsel, and IT. Jarussi, who has been involved in prosecuting campaign finance violations, also asked the Department of the Administration for communications from Juras, Attorney General Austin Knudsen, and Special Advisor Jake Eaton, but the DOA said it didn’t retain the records he had requested. He asked the Department of Justice for a couple of sets of records as well, communications sent and received by both Eaton and AG Knudsen, also with an ongoing end date. The DOJ offered a cost estimate to review the thousands of pages, and it invited him to narrow his request by, for instance, tightening the timeframe or identifying email recipients, the judge said. (Jarussi also asked the DOJ for records related to a possible remodel of the AG’s offices, and the order said the DOJ identified “a small number of documents” and told Jarussi it would produce them without a fee.) In his decision in favor of the State of Montana, the judge pointed to MCA 2-6-1006 as part of his rationale. It says people may request any record from any public agency, and the public agency shall provide the record — or give the person an estimate of the time it will take to fulfill the request and of any fees that will be charged. “A public agency may charge a fee for fulfilling a public information request,” the judge said, citing Montana Code. The law also says the fees need to be cost-efficient and can’t be more than the amount it takes to fulfill the request. In this particular case, the judge said the Governor’s Office and DOJ calculated costs “with an eye towards minimizing expense, waste and effort.” For example, he said they used the actual hourly costs of lawyers doing the work and, in the case of the Governor’s Office, assigned review time to administrative staff when possible. The judge also said the plaintiff’s lawyer offered some ideas that wouldn’t work, such as having the court review the records. (“Petitioner did not cite any authority for the proposition,” the judge said.) He said another proposal, to just copy all the communications onto a jump drive and hand it over, “is without merit” because it bypasses the necessary review. And he said the idea to have the plaintiff sit in front of a computer in Helena to review the records himself as a volunteer and save the state time is “preposterous,” “antithetical” to the matters the law intends to protect, and a proposal of “absurdity.” “Petitioner’s suggestion is illogical, requires no further discussion, and is therefore discarded by the Court,” the order said. (However, he said the idea shows the plaintiff recognized that a review is necessary and that it costs money.) In a phone call, lawyer John Heenan, who represents Jarussi, said his client’s interest is in seeing records that show what elected officials are doing on the public dime, but they ended up in a battle over fees for legal review instead. Before deciding whether to appeal, he said he will talk with people who know more about the legal issues in play and those involved in the recent cases where judges ruled differently. First and foremost, he said he and his client believe in the “sanctity of public information” and don’t want to do anything that makes getting records more difficult. However, Heenan said state agencies try to make the price of records unaffordable so the public and press back off, and he said doing so creates a chilling effect. But he said his client will continue to pursue the information despite obstacles even if he ends up narrowing his request and having to pay. “It was frustrating the Attorney General’s Office chose to spend more time and money fighting Mr. Jarussi than just making information available to him,” Heenan said. When the plaintiff first filed the lawsuit, University of Montana journalism professor and media law expert Lee Banville agreed he’d seen state agencies throw up roadblocks to public documents in the preceding months. However, in this case, he said the scope of the request was too broad and changed on a daily basis, and it wasn’t the way he would teach his students to request public records. [END] --- [1] Url: https://dailymontanan.com/2022/10/30/judge-state-may-charge-for-legal-review-prior-to-records-release/ Published and (C) by Daily Montanan Content appears here under this condition or license: Creative Commons CC BY-NC-ND 4.0. via Magical.Fish Gopher News Feeds: gopher://magical.fish/1/feeds/news/montanan/