Haven't given up!

I met yesterday with Peggy Bourne, Coleen Balzarini, and David Gliko, in my ongoing efforts to obtain public record related to the Highwood Generating Station. (As always, thank you to Peggy for her hard work and unrelenting efforts to help me out.)

Where to begin?

First, I did obtain the latest draft copy of the proposed Development Agreement between SME, the City, and Electric City Power. I have not yet had an opportunity to review it, though.

There is some additional information I am obtaining, and there are some additional issues remaining. This will help explain it (formatting is an issue, so some of the information is not verbatim):

April 2, 2007

Ms. Peggy J. Bourne
City Clerk
City of Great Falls
Civic Center
Great Falls, MT 59401

Re: Electric City Power

Dear Peggy:

As always, I appreciated the opportunity to meet with you today to move forward on my document requests. As you know, I have identified a number of documents for production:

Legislative-MCA Binder Amendments of City to LC170

Development Agreements Binder Redlined Version of 3-28-07 Draft, Handwritten Notes, McCarter Memo, Lawton to Gregori Correspondence

ECPI Board Packet information

Write Up for EIS Record of Decision

January pages re: Alstom

November pages re participation restriction

November pages to “Cascade County Legislative Delegation”

3-30-06 Lawton Memo

Additionally, I was allowed to view some drafts of the Development Agreement, but was refused copies of any but the latest. I disagree that the law allows protection of these documents, and I further disagree that the law affords any public official the discretion to decide that certain documents of a type are public and others are not.

Ms. Balzarini informed me that she would not produce any proposed agreements between Electric City Power and potential customers. I would like to know the legal authority for withholding such information. Also, it seems to me that there should be some correspondence or notes or something that reflects discussion with potential customers; the file contained nothing of the sort. This is a potentially significant issue given that the City’s share of Highwood Generating Station power is presently three times greater than the City’s actual demand. I think the public is entitled to know whether there is any potential demand to support this surplus.

I would like to see the attorney fee contracts with any attorneys handling matters related to this project. I would have expected to find them in one of the files I was allowed to review.

Finally, as we discussed, I was surprised at the dearth of correspondence contained in the files. It was explained to me that ‘transitory’ type correspondence is not maintained. This might be a letter between a City Official and an attorney discussing a proposed change. Ms. Balzarini informed me that, once the Official determined the change had been made, the letter would be destroyed.

It is difficult for me to understand how any entity can destroy correspondence relating to an ongoing project. If nothing else, I would suggest that such correspondence might well constitute evidence. I would ask that no future such correspondence be so destroyed. I would like to periodically obtain copies of the emails and letters related to this project as time goes by. I would also like to request that I be given access to any correspondence related to this project that has not previously been provided. This includes “electronically stored information” as contemplated by the Federal Rules of Civil Procedure.

As I told you, I will be out of the office until April 16, 2007. Thus, there is no need to produce the information before that date.

Thank you again for your hard work in accommodating my requests.

Sincerely,

As can be seen from the foregoing, the biggest issue remaining is the correspondence, including emails. There is very little correspondence contained in these files and it was explained to me that much of it is "transitory."

I asked what about emails back and forth between the City Manager and Tim Gregori. Ms. Balzarini explained that there really would not be any such communication as all of this is handled between the lawyers. Ok, then what about the communications between the lawyers and the City, or cc's of letters between lawyers. They are not retained. I have no place making any accusations, but this seems to me to be an impossibly unworkable situation. We'll see how this plays out.

The last significant issue is proposed contracts with potential Electric City Power customers. As explained in the letter, the ability of ECP to sell additional power is a big issue. Accepting for the time being Ms. Balzarini's refusal to produce these proposed contracts, there were no notes, memos, or correspondence (transitory?) to any of these potential customers.

So, we're looking at roughly 40 Mw of power above and beyond our current usage. Ok, what are we going to do with that? We've been assured that efforts are ongoing, but they won't tell us what those efforts are. I guess we'll just have to take their word for it.

Hmmm.

(P.S. I am informed that the Tribune was MIA from the ECP meeting last night.)