Round and Round
Below you can find my attempt to obtain copies of the drafts of the coming "Development Agreement" as well as the City's response. (Bonus question: Can anyone spot the error in the City Attorney's reasoning?)
As you can see, Mr. Gliko merely restates the authority I provided to him without analysis, and then says "no, you can't have the records."
Let's review. The Becky case that I cited, and that Mr. Gliko cited back to me, stands for the proposition that Article II, Section 9, of the Montana Constitution means that documents of a public body are all “documents generated or maintained by a public body which are somehow related to the function and duties of that body.” Clearly, then, "preliminary drafts" of a contract that the City will enter are "documents of a public body." To the extent one can argue that they are generated by the other party, those drafts are nevertheless "maintained" by the City.
Mr. Gliko is correct that the Becky decision also says that in certain cases the Court will look to legislative authority for assistance in construing a constitutional provision if the provision is "relevant to" and "does not conflict" with the Montana Constitution:
The Court does not hold that MCA 2-6-401 is such a statute.
Article II, Section 9 of the 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." It does not say anything about the legislature picking out certain "documents" and defining them to exclude public records like, oh, say "preliminary drafts." Thus, MCA 2-6-401 does conflict with the Constitution.
More important, what Mr. Gliko does not address is the 'why.' Why not produce them? Why hide them from the public?
(Did anyone figure out the flaw in his reasoning?)
As you can see, Mr. Gliko merely restates the authority I provided to him without analysis, and then says "no, you can't have the records."
Let's review. The Becky case that I cited, and that Mr. Gliko cited back to me, stands for the proposition that Article II, Section 9, of the Montana Constitution means that documents of a public body are all “documents generated or maintained by a public body which are somehow related to the function and duties of that body.” Clearly, then, "preliminary drafts" of a contract that the City will enter are "documents of a public body." To the extent one can argue that they are generated by the other party, those drafts are nevertheless "maintained" by the City.
Mr. Gliko is correct that the Becky decision also says that in certain cases the Court will look to legislative authority for assistance in construing a constitutional provision if the provision is "relevant to" and "does not conflict" with the Montana Constitution:
Although the Montana Constitution is the supreme law of the state and preempts contrary statutes or rules, [citing authority], this Court may look beyond the Constitution's specific language to interpret a constitutional provision when an existing state statute is relevant to, and does not conflict with, the constitutional provision.
[Emphasis added]
The Court does not hold that MCA 2-6-401 is such a statute.
Article II, Section 9 of the 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." It does not say anything about the legislature picking out certain "documents" and defining them to exclude public records like, oh, say "preliminary drafts." Thus, MCA 2-6-401 does conflict with the Constitution.
More important, what Mr. Gliko does not address is the 'why.' Why not produce them? Why hide them from the public?
(Did anyone figure out the flaw in his reasoning?)
1 comment:
My turn to guess.
The flaw in his reasoning is that according to Becky, you can look to statutes where they don't conflict with the Constitution.
But to the extent that any statute would limit the release of public documents, including working drafts, that statute does conflict with the Constitition and therefore cannot be used as an excuse not to produce the requested documents.
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