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What it takes to keep public documents public

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To the layman, some lawsuits filed against the government sound absurd. Not just that they have to be filed, but that they’re forced to go on for as long as they do—months, sometimes years—when common sense and the spiraling cost to taxpayers strongly suggest that they could be settled more quickly and inexpensively by putting both parties in a conference room with a couple of pots of coffee.

This is particularly true when the letter of the law is clear and unequivocal.

Such is the case with the Buffalo Field Campaign, the Ecology Center and Cold Mountain, Cold Rivers, three conservation groups that have sued the Montana Department of Livestock (DOL) for what they say is a failure by the agency to turn over public documents dealing with the management of bison in and around Yellowstone National Park.

On March 26, 2001, Darell Geist, executive director of the Missoula-based Cold Mountain, Cold Rivers, sent a letter to the DOL on behalf of three conservation groups requesting documents on its Yellowstone bison management activities, including any information on how bison “hazing”—the term used to describe the herding of migrating bison back into the park with the use of trucks, snowmobiles and helicopters—is affecting nearby bald eagles and their habitat.

The issue of hazing Yellowstone bison has been controversial for years. The DOL argues that it’s necessary to prevent the transmission to Montana livestock of brucellosis, a bacterial infection that weakens cattle and can cause spontaneous abortions. Opponents argue that hazing is cruel and inhumane, needlessly stresses the bison and can also compromise the animals’ health. Some 40 percent of Yellowstone bison carry the brucellosis antibodies—as do high percentages of Yellowstone elk, which are not hazed—though there has never been a confirmed case of bison-to-cattle transmission.

Geist’s document request was made under the “right to know” provision of the Montana Constitution, which states that: “No person shall be deprived of the right to examine documents or 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.”

In his letter, Geist asked the DOL to notify him in writing when those records would be available to inspect and copy. When more than a month passed with no response, Geist telephoned the DOL, but still no documents were sent. In May, 2001 the three groups filed a federal lawsuit against the department.

By late June, DOL attorney Bernie Jacobs finally wrote back to the plaintiffs’ attorney, saying that he believed the lawsuit “modifies” the plaintiffs’ right to know in this case, and that, under the rules of civil procedure, those public documents should more appropriately be obtained through “discovery,” the legal process by which opposing parties in a lawsuit exchange documents.

By July, the DOL had turned over some of the requested material, but not enough to satisfy the plaintiffs. In January, a settlement offer by the plaintiffs was rejected by the DOL. So last week, after more than a year of legal wrangling, the matter went before a district court judge in Helena. “We’re amazed that a state agency, the Department of Livestock, is essentially thumbing its nose at a fundamental constitutional right in the state of Montana,” says Geist. “We made the request for documents under the state sunshine laws and they’ve stonewalled us and shut us out.”

For its part, the DOL argues that it has never denied the plaintiffs access to public documents, and says that if the groups would simply specify exactly what they want, or narrow their request, the DOL would comply fully, assemble those documents and provide them with a date when they can be inspected and copied. The agency also asserts that some of the documents being requested do not exist. In its February motion for summary judgment (effectively asking the judge to dismiss the case), the DOL says that it “has every intention of providing access to the requested materials once MDOL understands exactly what is being requested.”

Jacobs, the DOL counsel, was out of the office all week and unavailable for comment, with all inquiries directed to DOL Public Information Officer Karen Cooper.

“I think that you have to have enough lead time to gather and do the research for the information that is being requested,” says Cooper. “We have regularly provided information to those groups when requested. We continue to do so. But we have to know specifically what type of information you’re requesting, so we know how to get that information to you.” Cooper would not comment further on the lawsuit.

But the plaintiffs’ attorney, Brenda Lindlief Hall, argues that regardless of any federal lawsuit, her clients have a fundamental right to inspect any and all public documents, provided they are not protected by a countervailing interest of privacy (personnel records, for example), which the DOL has never asserted.

“The statutes are very, very clear,” says Hall. “I don’t think that there are limitations on being able to walk into a state agency and say, ‘I would like to see these documents.’ The law says they must be open to the public during business hours…What they [the DOL] are trying to do is truly an end run around the Montana Constitution.”

During last week’s hearing in Helena, District Judge Thomas Honzel apparently agreed.

“I don’t think there’s any question that members of the plaintiffs’ organization have a right to inspect public documents,” Honzel said. “I think the Department has an obligation to make its documents open for inspection for whatever reason.”

The next hearing in the case is tentatively scheduled for May 9.

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