Development Agreement

As noted below, the City and I disagree about the public's entitlement to review drafts of a proposed "Development Agreement," presumably between the City and SME. The City's position is that the finally negotiated Agreement will be released, I believe, next week, and at that time the public will have the ability to review and consider its provisions prior to its being presented to the City Commission. The City asserts that we have no right to view the preliminary drafts.

The City Attorney, David Gliko, and I had a pleasant enough conversation on this topic earlier today. Since I was unable to convince him that my legal interpretation is correct, I said I would fax him a formal request laying out my position. He can either respond or not. Here is what I sent him:

March 15, 2007

Mr. David Gliko
City Attorney
City of Great Falls
Civic Center
Great Falls, MT 59401 BY FAX ONLY

Re: Freedom of Information Request

Dear Dave:

Thank you for the opportunity to discuss the above matter with you this morning. As you know, based on your suggestion I met with Peggy Bourne yesterday about many of the materials I am seeking. She was very helpful, and I remain hopeful that most of the matters she and I discussed will be satisfactorily resolved in the near future.

As we discussed today, though, there is one issue remaining that I think is probably more appropriately addressed to your office. While you already informed me of the City’s position on this issue, I am writing to formally articulate ours and renew our request.

The City is in the process of negotiating a Development Agreement with SME. There apparently exists one or more drafts of this proposed agreement. You are not certain of the state of these drafts because you have not been involved in their preparation.

Ms. Bourne declined to produce copies of these drafts. In support of her position, she referred me to MCA § 2-6-401. Subsection (c) of that section provides:

The term [Public Records] 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draft, a telephone messaging slip, a routing slip, part of a stock of publications or of reprinted forms, or a superseded publication.

[Emphasis and parenthetical language mine.]

Chapter 6 of Title 2, MCA, seems to be the legislature’s attempt to codify the rights provided to citizens in the Montana Constitution. Specifically, Article II, Section 9 of the Montana Constitution 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.

[Emphasis mine]

As you can see, the Constitutional protection is quite broad. It allows me to “examine documents.” It makes no exception for drafts. Further, it is beyond cavil that the right to observe the various drafts of a negotiated agreement falls under the rubric of deliberations of a public body.

The Constitution is the supreme law of the State of Montana. It cannot be circumvented or superseded by acts of the legislature. See, e.g., 16 Am. Jur. 2d Constitutional Law § 58. I do not agree, then, that the City can rely on a statutory provision in the face of a clear Constitutional mandate to the contrary.

Further, the Montana Supreme Court has interpreted Article II, Section 9, to mean that documents of a public body means all “documents generated or maintained by a public body which are somehow related to the function and duties of that body.” Becky v. Butte-Silver Bow School Dist. No. 1, 274 Mont. 131, 138, 906 P.2d 193, 197 (1995). The drafts are “generated or maintained” by the City, and they are certainly related to a function of the City (unless, I suppose, that the City takes the position that the coal plant is outside of its legal function).

Further, I can see no legitimate privacy right implicated by these documents. No individual will be a party to the Development Agreement. Presumably, these drafts have already been seen by individuals outside of City Government, including SME members and staff, SME’s counsel and staff, and anyone else who may have reviewed them. Why, then, should the citizens not be entitled to review them? Whose rights would be protected by withholding them? Conversely whose rights would be implicated by their release? In other words, even if the City could rightfully conceal these documents, why would the City choose to do so? What harm inures to anyone from their release?

As you know, it is National Sunshine Week, a celebration of openness in government. I cannot accept that the City would choose this of all times to deny the public access to documents that really implicate no privacy rights.

I would appreciate it if you would reconsider your position and provide me with copies with all past and present drafts of the proposed Development Agreement. If not, I would appreciate a formal response setting forth the City’s legal position. I would be grateful if your response articulates and cites the specific legal authority you rely upon in refusing to divulge the information I am seeking.

Thank you again for all of your assistance in this matter.

Sincerely,

I will, of course, post Mr. Gliko's reply when I receive it.