Judge: Agencies can’t charge for legal review of records

June 13, 2022 GMT

HELENA, Mont. (AP) — Montana state agencies cannot charge fees for legal reviews of documents sought through public records requests, a state judge has ruled.

District Court Judge Mike Menahan of Helena made the ruling on June 6 after The Billings Gazette and its owner, Lee Enterprises, challenged a $31,000 request by the Public Service Commission for a legal review of documents before releasing them to the newspaper. The PSC suggested the reporter could narrow his public records request to reduce the fee.

Agencies “may not negotiate how much information a party may receive based on the amount of money the party is willing to pay,” Menahan wrote.

Agencies have a duty under the Montana Constitution and state law to facilitate public records requests. Reviewing such records is part of the duties of agency legal staff, not an additional cost that can be passed on to the requester, Menahan said.


David McCumber, local news director for Lee Enterprises in the Western United States, told the Montana State News Bureau the ruling was a “huge victory for transparency in government and for the public’s right to know.”

The Public Service Commission intends to comply with its obligation to produce public records, the commission said in a statement Monday. But the commissioners plan to meet Tuesday to decide if they will appeal the court decision that the commission said would “burden ratepayers” with the cost of a legal review needed to ensure the documents that are released don’t violate privacy rights.

The Gazette sought documents related to travel expenses for commission staff after a state audit released in May 2021 found lax spending practices and documentation by PSC members. The PSC said about 25,000 documents were available and needed to be reviewed for privacy issues before being released.

In his order, Menahan wrote, “there is a question here whether the PSC is using the threat of prohibitive legal fees as leverage for negotiating a narrower public information request.”

Instead, he said, agencies are allowed to communicate with requesters to clarify a search and possibly narrow it down in a way that would benefit both sides.

Menahan did allow agencies to charge a “hold fee” for the Montana State Information Technology Services Division to retain emails that may be responsive to a pending public records request.