The Grind

You know, if I didn't know better, I would think that the City is trying to wear me down...

I received additional materials too, but for now I want to focus on these. (Ms. Bourne's complete response with enclosures can be found here.) More particularly, I want to focus on two issues raised by Ms. Bourne's letter and the retention guidelines she enclosed.

First, in paragraphs 1 and 2, Ms. Bourne references my request for materials related to proposed agreements between Electric City Power and potential customers. You will recall that this is a very significant issue in this case because the City's share of the coal plant's power is just under three times what it presently uses or sells. Assuming Gov. Schweitzer signs the 're-regulation' bill, the City will have until October 1, 2007, in which to sell this additional 40 MW of power. The City is so desperate to sell this extra power, it is hiring engineers (engineers?) to help it sell the power and is paying them over $100,000.00.

So, I am inquiring about one of the most important issues facing the public on this whole coal plant issue and the City refuses to produce the information. Why, because it is all "preliminary drafts" under MCA 2-6-401(c). We have already disposed of the City's claim that these 'draft' documents can be hidden from the public. According to Ms. Bourne's letter, the "City is following" the law.

That wording is important here, because she is implying that the City's hands are tied. The City isn't "following" the law. Nothing could be further from the truth. The City is hiding behind the law. There is absolutely nothing in the law preventing the City's disclosure of this information other than a strained, self-serving interpretation of it.

Ms. Bourne then tells us that "correspondence or notes or something that reflects discussion with potential customers" also constitute "preliminary drafts" that are exempted from disclosure. Huh? If you and I exchange letters about a potential contract, and I make notes about the potential contracts, these are not parts of the contract. As a general rule, contracts are interpreted on their own terms, not based on extraneous discussions. (There are, of course, exceptions to this rule, but they do not apply here.)

If the correspondence and notes are not part of the contracts, then they certainly cannot be part of the drafts of the contracts. The City has simply made up an excuse to hide this information from the public. All the while, no doubt, touting the 'openness' of the process.

Let's go to the next issue, the correspondence. I have been asking throughout for copies of the various emails and letters related to the coal plant. I have been to City offices twice to review files and on both occasions have been surprised by the almost complete absence of correspondence in these files. In fact, my ability to obtain the ongoing correspondence was a major subject of the inquiry that brought this response.

If you imagine all of the letters and emails generated by the Fiscal Services Director's Office and the City Manager's Office related to the coal plant, the City's position is that all but a thimbleful are routinely destroyed. Forgive me my skepticism.

According to Ms. Bourne, these letters and emails are destroyed or retained in accordance with the City's retention policy that she enclosed. Lets take a look at that.

According to that policy, only the following types of correspondence should be routinely destroyed: letters generated by another entity, notices of unofficial employee activities like softball games, internal office announcements like phone slips, quasi-official notices, junk mail and listserv messages. It doesn't sound to me like this would include any coal plant letters or email.

According to that policy, I should have seen at least 30 days worth of these letters: incoming and outgoing transmittal letters ("enclosed please find..."), questions and answers that require no administrative action or policy decisions ("our address is..."), thank you's, congratulations, and no-action informational copies.

All other letters and emails, dating back at least to 2004, should have been produced. You tell me if the City is following its own retention policy in good faith in order to provide the public with access to public records.

Further, on a couple different occasions, I am invited to review the files as often as I like. Wait a minute. I am a citizen here. I have a full-time job besides trying to get my hands on public records. What, am I supposed to make daily trips over to the City to re-review all of the files in the hopes that I just might catch a particular email in that day's game of hide the rabbit?

I first went to the City to inspect the files, and was provided the Clerk's files. I learned that the City Manager and the Fiscal Services Director maintain their own files, and the Clerk's files may not reflect what is contained in the individual office files. I then went over a second time to inspect the individual office files and was provided, to the best of my knowledge, with access only to the Fiscal Services Director's files. I was told that virtually all of the ongoing correspondence related to the coal plant is routinely destroyed. Now I am told that it is maintained according to a retention policy, but that I will need to periodically re-review the various files in order to find it.

Oh yeah, we first started requesting information from the City of Great Falls on December 11, 2006.

You tell me if we have an open government.