MEIC Lawsuit

As noted below, the Montana Environmental Information Center filed a lawsuit against the City of Great Falls alleging violations of the Montana Constitution as it relates to public access to public records.

MEIC's Complaint (available here) details the efforts of Dr. Charles Christensen, a local physician, to obtain public records related to the Highwood Generating Station. I am familiar with Dr. Christensen's efforts, having spoken with him throughout the period when he was attempting to obtain the records. My experiences are quite similar to his, and neither set reflects well on the City's respect for public access to public records.

I have several observations about the MEIC lawsuit.

First, Dr. Christensen requested the "feasibility study" for which the City paid roughly $23,000.00. The City claims that no such study exists. Dr. Christensen is aware of the City's claims but, apparently, he and his attorney doubt the City's representations in this regard since they have referenced the study in their Complaint. It will be interesting to see how this turns out.

Second, in paragraph 9, p. 4, of the Complaint, MEIC references an April 2, 2007, letter from Dr. Christensen to the City seeking information. You will note that he requested documents that almost verbatim constitute the purported exceptions to the Constitution's right to know under MCA 2-6-401(2)(c). In other words, he and his attorney put the provision squarely at issue. I am surprised the City attorney did not see this lawsuit coming. Or maybe he did.

Third, MEIC alleged that MCA 2-6-401 is unconstitutional both as it is applied to Dr. Christensen and on its face. This is a good position because even if the judge decides not to throw the statute out, s/he can still determine that the City violated the Constitution by the way it interpreted it.

Fourth, Rule 24(d) of the Montana Rules of Civil Procedure requires that the State Attorney General be given notice of constitutional cases unless the state or an agency thereof is a party. (I am not sure if the City counts as an "agency" of the state for the purpose of the Rule and I don't have time to research it this morning.) Thus, we may be hearing from Attorney General McGrath on this issue.

So, what happens next? Well, the City will be served and then will, no doubt, tender the case to its insurance carrier. If there is potential coverage the carrier will hire an attorney for the City. Otherwise, the City will hire its own attorney, or Mr. Gliko will handle the case. Let's keep an eye on it.

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