Back-channel communications between Montana lawmakers, lobbyists and stakeholders when drafting bills are once again open to the public under a court order issued Tuesday in Great Falls.
Cascade County District Court Judge John Kutzman ordered Montana legislative staff to stop redacting details about who state lawmakers were communicating with when developing legislation. Such material had been public for more than 30 years, but in September 2024, legislative staff started redacting the communications. The decision to do so stemmed from a separate lawsuit in which a lawmaker sued for alleged gerrymandering won protections against producing evidence against himself.
Members of the public and several media outlets, including Montana Free Press, sued to make the details public again. The communications are kept in what are known as “junque files,” a term coined by legislative staff.
That lawsuit is ongoing, but Kutzman stopped the redactions because, he concluded, there was sufficient evidence to suggest the plaintiffs were likely to prevail. The files were ruled public in a 1995 lawsuit filed by the Montana Environmental Information Center.
“For the past 30 years following the MEIC decision, legislators, the Legislative Council, Legislative Services, lobbyists, journalists and the public all understood that these were public documents,” Kutzman said in his order.
The judge gave the Legislative Services Division five days to comply with the order.
Following Kutzman’s ruling, Legislative Services still wasn’t producing the files requested in the lawsuit. Anne Hedges, MEIC co-director and director of government and legislative affairs, said she attempted to get her junque file request filled, but was told by the Legislature’s legal staff that there was a process and there were requests to be filled before her own. There was no indication of when the request might be fulfilled.
“The bill drafter has what I want with the click of a button, but instead they seem intent on creating a cumbersome process that delays access,” Hedges said. “The old process worked for 30 years and no one is saying why it can’t work now.”
Senate President Matt Regier, a Kalispell Republican, told the press Tuesday he expected the balance between the privacy of legislators and the public’s right to know to be worked out.
“I think it’s going to be a balance of constitutional provisions that legislators shouldn’t be questioned, and so that part versus the transparency to the public and open government,” Regier said. “So, [I’m] very much for the open government, but there’s also a reason that you can’t just come after a legislator because you don’t like their decisions. I think that’s still going to work its way out.”
It was Regier’s father, former Kalispell Sen. Keith Regier, who in a separate lawsuit won court protections against producing his communications concerning a 2023 bill that redrew the political districts of the Montana Public Service Commission. In that case, a Lewis and Clark County judge concluded that requiring Keith Regier to produce the communications amounted to requiring the lawmaker to testify against himself, something the law doesn’t allow.
In the junque file lawsuit, attorneys for the press argued that the privacy protections granted to lawmakers in court were intended to shield them from attacks from the executive and judicial branches. The public’s right to know secured in the Montana Constitution was to be protected, the attorneys argued.
Montana’s right-to-know law states that “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.”
The original plaintiffs in the lawsuit were David Saslav, of Great Falls, Butte public defender Kaylee Hafer and the Montana Environmental Information Center. The Montana Free Press and several other media organizations joined the lawsuit last fall.
