(C) Daily Montanan This story was originally published by Daily Montanan and is unaltered. . . . . . . . . . . Montana public records suit seeks communications over new law defining sex – Daily Montanan [1] ['Blair Miller', 'More From Author', '- October'] Date: 2023-10-17 A nonprofit law firm filed suit Tuesday against Gov. Greg Gianforte and Department of Public Health and Human Services Director Charlie Brereton, asking a judge to force their offices to turn over public documents the firm requested but were denied over assertions of executive and attorney-client privilege. Upper Seven Law filed the lawsuit in Lewis and Clark County District Court. The Helena-based firm also sued Gianforte and the state last week on behalf of a group of transgender, two-spirit, intersex and nonbinary Montanans who are challenging the state’s newly passed law narrowing the definition of sex. The suit filed Tuesday ties in with the challenge to Senate Bill 458, which defines sex as a binary in state law, because it involves records attorneys for the firm requested in preparation for the suit challenging the new law. “In Montana, the days of policymaking in the dark and behind closed doors are long gone,” Upper Seven Law Executive Director Rylee Sommers-Flanagan said in a statement. According to the complaint, Sommers-Flanagan asked the Governor’s Office on Aug. 25 for correspondence to or from Gianforte’s General Counsel Anita Milanovich that referenced Senate Bill 458 or SF-424 between Aug. 1 and Aug. 5. She made a similar request to DPHHS, but also asked for any internal guidance sent around by the department’s chief counsel regarding the forms or the new law. The state is required to fill out the SF-424 form when applying for federal grants. Some departments require applicants to attest they will follow numerous federal laws and standards, including anti-discrimination laws. According to the new lawsuit, the law firm believes Milanovich “instructed Montana agencies to refuse to assure compliance with federal nondiscrimination law” when completing the forms, citing SB 458 – which Republican lawmakers passed, and Gianforte signed, this session and defines Montanans’ sexes only as “male” or “female.” But on Sept. 1, Office of Public Information Requests Legal Counsel Rebecca Narmore denied the request, saying that “executive privilege is asserted for correspondence related to your request,” according to the suit. She also said there might be attorney-client privilege protections as well, and noted that assertions of executive privilege in Montana are currently pending legal review by the Montana Supreme Court in another case filed in part by Upper Seven Law. “We are aware that executive privilege is the subject of litigation and will reconsider this response if necessary on the final resolution of the issue with the Montana Supreme Court,” Narmore wrote, according to emails attached as exhibits to the lawsuit. Gianforte last month appealed a Lewis and Clark County District Court’s December 2022 order that the governor must release records from the 2021 legislative session in which agency concerns over the legality of certain bills were being tracked. Upper Seven Law is representing Jayson O’Neill, who requested the records, in that case. In a separate right-to-know case, Gianforte was ordered to turn over documents this summer involving his administration’s decision to drop enforcement actions levied against a “bad actor” mining company executive. After Narmore denied the records request, Sommers-Flanagan objected, saying executive privilege is not the current law of Montana and has “never before been recognized” in the state. “While we understand the state intends to challenge past practice and precedent before the Montana Supreme Court, the documents in question are not subject to any existing privilege and cannot be withheld,” she wrote in an email. “Indeed, they are clearly subject to the Right to Know and relate directly to Montanans’ lives, making timely access all the more essential.” DPHHS also denied Sommers-Flanagan’s records request on a similar basis, saying the communications and guidance were subject to both executive and attorney-client privilege. Upper Seven Law responded by saying that documents with privileged information “should be met with redacted documents and a privilege log,” but no records were provided, according to the suit. The firm argues that since there was no active litigation involving SB 458 at the time the documents were requested, they should not be subject to any privilege, and that they should be subject to the state constitution’s right for the public to “examine documents or to observe the deliberations of all public bodies or agencies of the state government.” The law firm says since neither the Governor’s Office nor DPHHS has provided any redacted documents or privilege logs, there is no way it can determine whether they fall under attorney-client privilege or whether they are being withheld “on the basis of the rejected and inapplicable executive privilege doctrine,” as the suit says. “The Governor’s and the Department’s failures to comply with their constitutional obligations have forced Plaintiff to file this lawsuit to vindicate its constitutional rights,” the attorneys wrote in the lawsuit. They are asking a judge to order the governor and DPHHS to produce the documents and for attorney’s fees and costs. A spokesperson for DPHHS said the department “generally doesn’t comment on active litigation.” A spokesperson for the Governor’s Office did not respond to a request for comment on the lawsuit Tuesday afternoon. “Neither the Governor’s Office nor DPHHS can explain their refusal to provide copies of the guidance they issued to employees, apparently instructing them to reserve the right to discriminate against Montanans when distributing federal funds,” Sommers-Flanagan said in a statement. “But the Montana Constitution requires transparency. And the Governor must obey the Constitution he has sworn to uphold.” [END] --- [1] Url: https://dailymontanan.com/2023/10/17/montana-public-records-suit-seeks-communications-over-new-law-defining-sex/ 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/