(C) Daily Montanan This story was originally published by Daily Montanan and is unaltered. . . . . . . . . . . Judge gives Gianforte six weeks to hand over documents related to 'bad actor' request – Daily Montanan [1] ['Darrell Ehrlick', 'More From Author', '- June'] Date: 2023-06-26 A Helena judge is giving Montana Gov. Greg Gianforte six weeks to turn over all documents related to a mining official and the claims that he should be barred from working in the state, and said the state’s chief executive had either misconstrued Montana’s right-to-know laws or provided no legal justification for stonewalling the release of information. Two organizations, the Montana Environmental Information Center and Earthworks, filed a lawsuit in November 2021 seeking documents related to Phillips S. Baker, Jr. Baker was the vice president and chief financial officer for Pegasus Gold when it filed for bankruptcy at the Zortman-Landusky site, now home to one of the largest mining remediation clean-ups in state history. Officials have previously said that because of Pegasus’ mining activities there, clean-up and water remediation will be a permanent issue at the site. Baker is now the chief executive officer for Hecla Mining, which is proposing two new silver mines in the Cabinet Mountains in the northwestern part of the state. However, Montana has a “bad actor” law that prohibits mining executives and companies for which they work to receive a new permit in the state if they’ve failed to clean up past operations or reimburse the state for those clean-up costs. The two organizations sought documents related to Baker, the state and the bad actor law, arguing that Baker and Hecla should be ineligible for the new permits. The Gianforte administration has consistently refused to turn over any documents related Baker or Hecla, arguing that the chief executive had discretion whether to turn them over, that they were available by using the discovery process, and that they were a product of attorney-client privilege – all arguments that Lewis and Clark District Court Judge Christopher Abbott rejected. The two organizations are suing the state’s Department of Environmental Quality in a separate suit, contending that a mining permit should not be issued. Attorneys for Gianforte had argued that his office could either withhold the documents because of the other ongoing lawsuit, or, conversely, that the groups could just use the legal process of discovery to get the information. However, Abbott ruled that the cases were separate, and one has no bearing on the other. Furthermore, he pointed to a newly minted law by the 2023 legislature that specified that the state could not withhold public documents because they were or could be used in current litigation. “The governor argues for a ‘pending litigation’ exception to the right to know,” Abbott wrote. “The difficulty with this argument, however, is that it is completely unmoored from the text, history, and purpose underlying both Article II, Section 9 and the implementing public records statutes. “The meaning of Article II, Section 9 is not virgin earth. Multiple Supreme Court opinions have analyzed the text of the Constitution and proceedings of the 1972 Constitutional Convention to flesh out its meaning and have consistently held that it establishes a broad ‘constitutional presumption that every document within the possession of public officials is subject to inspection.’” Abbott’s order was not just critical of the legal theories Gianforte’s lawyers had advanced, but also took them to task for how they have handled the case, saying the governor’s office had provided no rationale legal basis for withholding documents, criticizing his office for thwarting Montana’s long-standing and well established open records law. “There is no basis for concluding, as the governor seems to do, that the right to know turns on the subjective purpose of the request,” Abbott said. “The right to know vindicates an interest in openness and transparency in government. That interest is served with government information is publicly disclosed, whatever the motive of the requester may have been. Indeed, the court suspects many public requests are made for more self-interested purposes than the public interest.” The Daily Montanan reached out to Gianforte’s office on Monday afternoon, but officials there did not respond to inquiries about the case. “Finally, the court finds no logical basis for the suggestion that the availability of discovery somehow naturally trades off with the availability of the right to know,” Abbott said. “Throughout law, remedies are overlapping and independent. A party breaching a contract may also be liable in tort. Prosecutors can charge multiple crimes relating to the same criminal act.” A rare writ Additionally, Abbott issued the order as a writ of mandamus – a legal instrument that mandates Gianforte turn over all documents covered by the request within six weeks. The instrument is rare because of its general and far-reaching nature, rather than a dispute about a particular document or group of documents. Abbott granted the order because the Gianforte administration has yet to produce a single document related to the request. “Here the governor has produced no documents at all and supplied no privilege log,” Abbott wrote. A privilege log is a way of disclosing documents the government is keeping confidential, while letting the public know of their existence. It’s meant to catalogue documents, and provide an opportunity for the public to object to withholding a record. It usually has a general and broad description of the document or documents being withheld. “The governor’s defense is not asserted on a per-document basis, but rather is predicated on a more broad-brush assertion that the right to know does not apply when the party seeks the records to assist with litigation,” the ruling said. Abbott’s order does allow the governor to still withhold documents from the groups that brought the lawsuit, so long as documents fit with other previously recognized exceptions, but the judge said the governor must produce “a detailed privilege log” that allows for the MEIC and Earthworks to evaluate in case of an objection. “The governor is not above the law. We have a fundamental, constitutional right to know what the government is up to, especially when it regards this administration’s failure to enforce the law against bad actors who have cost the state tens of millions of dollars,” said Anne Hedges, the director of policy and legislative affairs with MEIC. “We’re happy to see the judge protect our constitutional right to know and look forward to the governor’s office releasing public records.” [END] --- [1] Url: https://dailymontanan.com/2023/06/26/judge-gives-gianforte-six-weeks-to-hand-over-documents-related-to-bad-actor-request/ 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/