3/23/2007

Bonus Question

Below I asked a Bonus Question: Can anyone spot the error in the City Attorney's reasoning in denying the public access to preliminary drafts of the coal plant Development Agreement?

I had a few guesses (here, here, here, and here.) I believe that all of them are legally sustainable arguments against the City Attorney's position. If I were to brief the issue, I would likely raise all of them.

I would have to give the prize to....anonymous: "I am curious why he feels the City is "obliged" to deny access to the information, without stating any significant reason for opposition to it's disclosure."

Here's my thought. Mr. Gliko writes the whole letter from the point of view that anything not specifically authorized to be released must be withheld from public view. For example, he says "the City is obliged to follow the statutes of the State of Montana." That is true enough as far as it goes, but he is suggesting that the statutes were written to prevent, not enable, disclosure of public records.

How can anyone fairly read our Constitution to suggest that anything the legislature does not specifically authorize for release must be concealed from the public? Article II, Section 9 provides: "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." Does that sound like the drafters intended to limit disclosure? It sure doesn't to me.

Let's come at it another way. MCA 2-6-401(c), upon which Mr. Gliko relies, provides exceptions to what is a public record: "The term does not include any paper, correspondence, form, book, photograph, microfilm, magnetic tape, computer storage media, map, drawing, or other type of document that is for reference purposes only, a preliminary draft, a telephone messaging slip, a routing slip, part of a stock of publications or of preprinted forms, or a superseded publication."

According to Mr. Gliko's interpretation, if the City has a stack of preprinted invoices for, say, utility services, the City would be "obliged to follow the statutes," and would be legally prevented from allowing the public to view these preprinted forms. He would argue that the City must actually take steps to prevent the public from viewing telephone message slips.

Is that a fair reading of the statute? I will leave that up to you.

4 comments:

WolfPack said...

So what you’re saying is that Gliko's justification for city staff not putting one additional document in the copier is "Nonsense". Can I be censured for saying that? In my self interested attempt to reclaim the prize, I find it more troubling that Gliko thinks that all communications between the city and outside entities stamped draft are confidential. I can understand this for internal draft documents that have not been subject to any management overview but I would hope all outgoing contractual related communications are passed by management. It’s kind of a funny mental picture, a citizen pointing at a city document they would like to see and a city employee quickly stamping it draft and responding “sorry I’d like to but I can’t show you that, it’s a DRAFT”.

a-fire-fly said...
This comment has been removed by the author.
a-fire-fly said...

Sorry, anon was me. I'll defend my prize. (Bud Light)

The way I see it, Gliko is trying to say he is not allowed to show us the document because of the statute, instead of saying the City is using the statute to prevent disclosure of the document, without actually saying they are the ones who don't want to disclose information.

It's a win win situation for the City. They have a reason not to disclose info, without actually telling people they are refusing to disclose information.

Except they sent it to a lawyer.

WolfPack said...

No!! I am Anonymous (Spartacus)!!