Psssst....don't tell anyone.

The Tribune had a good editorial today about the Confidentiality Agreement recently adopted by the Great Falls International Airport Authority Board.

While I think the editorial board did a good job of addressing the issues, there are a few additional points that can be made.

First, even assuming that 4 members of the Board believe that the public's right to know interferes with what they contend is their mission, such beliefs are inapposite.

"'It's respect to our clients," [Board Chairman Ben] Ives said. 'If they come to us and say it's absolutely confidential, then it's part of the work product.' Once there's a deal, he said, it becomes public." Airport Director, Cynthia Schultz says "the agreements are necessary to reassure business prospects that proprietary information, including such things as financial details or possible expansion plans, won't become public knowledge."

The problem with this line of reasoning is that the decision is not driven by necessity or expedience. The decision must be driven by the law, in our case, the Montana Constitution.

Regardless of how the pro-secret faction tries to spin this, opposing the Confidentiality Agreement does not mean one is opposed to economic development, or is anti-growth, or is trying to stand in the way of the Airport's success. Opposition to the Confidentiality Agreement simply represents an understanding that all citizens, regardless of how and where they might fit in their public and private roles, must be bound by the law.

If a) economic development is truly a mission of the Great Falls International Airport (and I think it properly is) and b) the Airport cannot succeed with the level of openness required by law, the solution is not to ignore the law but to either change it, or create some new structure that allows compliance with it. Simply putting a spin on it does not work.

Second, the Board's reliance on what the Great Falls Development Authority does or does not do is misplaced. As the Airport's attorney, Mick Taleff, said, the Airport Authority is "a public body, corporate and politic"..."the 'open meeting' and 'right to know' laws and constitutional provisions apply to the Airport Authority. There has never been any disagreement as to those principles."

The Great Falls Development Authority may or may not be legally allowed to keep matters confidential.

So what?

The Great Falls Development Authority is not an Airport Authority. Further, even if another Airport Authority adopted the exact same agreement, so what? The fact that another entity does or does not do something that is or is not legal is simply not relevant to the determination of whether this entity is doing something legal under the statutes and Constitution.

Third, the Airport Authority could probably adopt a procedure to legally protect the documents they want to be protected. According to the Great Falls Tribune case, the Court allowed a procedure that gave the third party the opportunity to make a showing that what they are providing to the public entity should be kept confidential. Thereafter, the agency (in this case the Airport Authority) can make an independent determination whether the information should be kept private. The Confidentiality Agreement here makes no such requirement for a showing or determination.

In fact, the Confidentiality Agreement adopted by the Airport Authority does not even discuss who decides what is confidential and what is not. It does not even discuss how such a decision is to be made, and what criteria will be used to make the decision and when.

So if your friendly neighborhood blogger calls up and asks for some documents, the Airport Authority or its staff can simply respond "no, it's confidential." Since the requestor will have no knowledge about what the information is or is not, and will have no record of any showing or determination, the requestor will have two options: go away or sue. Do you think that's what the drafters intended by "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?" I don't.

Fourth, what is the idea of including an attorney fee provision? Normally, in litigation the winner is not entitled to have his fees paid by the loser unless provided for by statute or contract. (The "American Rule")

If you take a volunteer Airport Authority board member acting in good faith who comes across information, knowing that if he discloses it he might have to pay the Airport's attorney fees, is he going to be inclined to make the information public? Is he going to err on the side of public disclosure, or is he going to err on the side of keeping a secret? Which way should he lean? (Hint: "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." or "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." )

Finally, one further observation. The Tribune fell all over itself to make it clear that it was not implying any sort of malice or ill will on the part of the Board. I agree, and I think the Tribune was right to make the point. But isn't it sad that we have to make the point?

In other words, has our political process become so partisan or so paranoid that mere disagreement over a political and legal question can be construed as an implication of improper purpose? Just because we think that 4 members of the Board made the wrong decision, how does that lead to a suggestion that they had some horrible, hidden agenda?

We can disagree. Even strongly.

It's called democracy.