It's a start.

I met with Great Falls City Clerk, Peggy Bourne, yesterday in my ongoing efforts to obtain public records related to the coal plant transaction. Peggy is a very nice, professional woman, and I believe she sincerely tries to do what the law requires with respect to records. In other words, I do not believe the difficulties I have encountered can be attributed to Ms. Bourne's efforts or lack thereof. I obtained actual access to some records, promised access to others, and no access to a third group.

First, we'll talk about what she did have. In her office she had several large, Redwell folders, marked with such things as "ECP," "SME," and "Highwood Generating Station." I went through these files and asked that certain subfiles be copied.

I noticed that most of the "correspondence" subfiles contained older documents, such as citizen letters and press documents. This aligned with what Ms. Bourne had told me in a conversation earlier in the day.

The daily 'reference' files are all maintained by the various departments, such as the City Manager's office and the Fiscal Services office. These files would include such things as the regular, ongoing correspondence related to the transaction. These files are then given to Ms. Bourne, apparently at the discretion of the department head, for later inclusion in the final record.

Second, I asked for certain documents that Ms. Bourne will obtain for me. The first are the contents of these daily reference files from the City Manager's office and the Fiscal Services office. Second, I asked for the organizational and governing documents for SME. This would include the documents that dictate the terms of the relationship between the City and the Cooperative, as well as its other members.

She hopes to provide this second set of documents by today or tomorrow.

Third, I asked for the missing "feasibility study" referenced in the City of Great Falls City Commission minutes of November 4, 2003. She had earlier told me that she did not believe it is the City's property, that it is in not in the City's possession, and that she could not require its production.

In our conversation yesterday, I asked Ms. Bourne directly: "Is it possible that no such 'study' exists, that the City Manager simply misspoke when he described it to the Commission?"

She answered affirmatively. She thinks that the original request for $23,000.00 was a capital contribution request necessary to initiate the process of obtaining studies. The various studies referenced on SME's website were the culmination of this process.

I questioned, then, why no one had simply said this before. Why allow people to spend hours on wild goose chases rather than offering a simple explanation? Why allow conspiracy theories to start and grow when the same could be quelled by answering the questions. She didn't know.

In the end, she promised to look into providing a written statement from an authorized City representative explaining this transaction. If it is unequivocal, I don't know that we will ever do any better than that.

Finally, there was one group of documents she would not produce. She refused to provide me any drafts of the upcoming "Development Agreement" between SME and the City. This, apparently, will be the 'granddaddy of all agreements,' and will control the day to day relationship. When I asked her why she would not produce these drafts, she said that they are not public records and referred me to MCA 2-6-401.

I wasn't quick enough to think of the following argument yesterday, so I intend to fax a letter to the City Attorney today.

Sec. 2-6-401(2)(c) does, in fact, exclude from the definition of public records: "preliminary draft." It also excludes "a telephone messaging slip, a routing slip, part of a stock of publications or of preprinted forms, or a superseded publication."

Based on that section, Ms. Bourne's is a fair position. Further, the gist of any negotiations should be contained in the daily correspondence between the City Manager and SME anyway, and she is going to produce that.

But here's what I missed yesterday. 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."

The Constitution doesn't say anything about "preliminary drafts." What the Constitution giveth, the legislature cannot taketh away. In other words, we have a name for a statute that contravenes rights given by the Constitution: Unconstitutional.

Therefore, the fact that the legislature tried to limit my right to "examine documents" by excluding "preliminary drafts" is meaningless; the legislature cannot do it.

I will argue that this is especially true given that there is no privacy interest at stake. There is no interest in individual privacy here. There is no interest in negotiations, since our 'adversary' in the negotiations has seen the drafts...they're drafts. So what privacy interest is there to protect? Why should SME and certain City officials be allowed to see them, but not the public?

More to come.