Oh Well

The Great Falls International Airport Authority adopted a "Confidentiality Agreement." Chalk up another one for privacy in government.

Don't get me wrong. There are circumstances where a company's trade secrets can outweigh the public's right to know. The seminal case on this issue is Great Falls Tribune v. Public Service Commission.

That case does not, however, sanction a blanket privacy right for business entities.

In fact, that case states that there is a "constitutional presumption that all documents of every kind in the hands of public officials are amenable to inspection, regardless of legislation, special exceptions made to accommodate the exercise of constitutional police power, and other competing constitutional interests, such as due process." In fact, the Montana Constitution places an "affirmative" duty on government officials to make their proceedings open to scrutiny. Great Falls Tribune, p. 20.
"[D]ocuments filed by corporate entities with public agencies, such as the PSC [or the Great Falls International Airport Authority-Ed.], are presumptively available for access by the public under Montana’s Constitution." Great Falls Tribune, p. 23.

The Court then recognized that, while the law imposes the above-referenced "affirmative" duty of disclosure on public officials, there can nonetheless be documents containing confidential trade secrets that are immune from public inspection. The protection for such documents stems not from privacy rights, though, but from the fact that trade secrets and the like can constitute "property rights," subject to the prohibition on takings without compensation. The Court frowned, however, on a scheme that would protect documents from public disclosure based on "mere representations of public utilities that the information contains trade secrets or other confidential proprietary information." Great Falls Tribune, p. 21.

The Court therefore adopted a procedure whereby information presumed to be public might otherwise be protected from the prying eyes of newspapers, bloggers, citizens and the like: "Accordingly, this Court hereby rules that a non-human entity seeking protective orders or other protective measures for materials filed with a regulating governmental agency, such as the PSC, must support its claim of confidentiality by filing a supporting affidavit making a prima facie showing that the materials constitute property rights which are protected under constitutional due process requirements. The claimant’s showing must be more than conclusory. It must be specific enough for the PSC, any objecting parties, and reviewing authorities to clearly understand the nature and basis of the public utility’s claims to the right of confidentiality. To the extent that the PSC’s current procedural rules require less, this Court directs their amendment to comport with its holding herein.

Furthermore, this Court hereby rules that the governmental agency has the affirmative duty to review at the time of filing of the alleged confidential records of a non-human entity, and the hereinafter required supporting affidavits, and make an independent determination whether the records are in fact property rights which warrant due process protection under the applicable state or federal law." Great Falls Tribune, p. 22.

In order to be protected from disclosure, the private company must first establish that the information implicates a "discernible property right entitled to protection." Great Falls Tribune, p. 23. I believe this is the "balancing test" that Airport Authority Board members Jeff Mangan and Susan Humble referred to in voting against the Confidentiality Agreement.

You will note that the Confidentiality Agreement adopted by the GFIAA does not conform to the constitutionally mandated procedure adopted in the Great Falls Tribune case. There is no requirement of an affidavit demonstrating a constitutionally protected property right (how is an announcement of a contract a "property right"?). There is no affidavit allowing the public to consider the claims of confidentiality. There is no independent determination by the GFIAA about property rights.

You will note, too, that there is an argument to be made that the protections allowed by the Great Falls Tribune case do not even apply in a situation, like the Airport's, where supposed proprietary information is voluntarily provided to the government entity. The Court stated: "When the state of Montana obtains access to private property in the form of genuine trade secrets or other confidential proprietary information by compelling its production for filing with a governmental regulatory agency, such as the PSC, the information’s status as a trade secret or confidential proprietary information remains unchanged." [Emphasis Added] The Court might find distinguishable, then, a situation where the proprietary information is voluntarily provided.

As I stated before, I am not insensitive to the difficulties faced by the Airport staff in attempting to recruit businesses. The constitutional rights of the citizens, though, cannot be sacrificed in the name of expedience. Suppose someone asked, "Hey, don't you want the airport to attract new businesses? Because if you do, the airport needs to be able to keep this stuff confidential."

I would respond that, of course, I appreciate the fine work the airport does in growing the city's economic base. But I would also point out that the person asked the wrong question. The inquiry is not whether this is something we "want," or whether it is something that is "workable" or a "good idea." It violates the Montana Constitution.

Hopefully some local business charged with protecting the public's right to know will jump on this and secure the rights for the rest of us. Can anyone think of such a business, preferably one who has experience with lawsuits against public entities, like political caucuses, school boards, sheriff's departments and, yes, even the Public Service Commission?