The state Public Service Commission cannot charge fees to conduct legal reviews on documents produced as part of public records requests, a Helena judge ordered this week.
The decision came after a lawsuit stemming from a request for public information made last year by a reporter for The Billings Gazette, which is part of Lee Enterprises.
The reporter asked for records from the PSC, which oversees utilities in the state. Three months after the request, the agency told the reporter it had found nearly 25,000 responsive documents and it would need a pre-payment of $31,000 to conduct a legal review before it could disclose anything.
Lee Enterprises owns the Gazette, Missoulian, Helena Independent Record, Montana Standard in Butte and Ravalli Republic.
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The newspaper company sued the PSC objecting to the charging of legal fees. In subsequent record requests, the Gazette reporter was also charged a $240 fee to hold records so they wouldn’t be deleted while the request was processed and quoted another $870 to review more documents.
In court filings and arguments, the newspaper company said a legal review done by a government agency was not a proper cost that could be charged under state law. Montana does allow for charging fees to cover the actual cost of producing records, but the newspapers argued that state agencies already employed lawyers and if agencies choose to conduct legal reviews, that was their own burden.
David McCumber, local news director for Lee Enterprises’ news organizations in the western United States, said Friday: “The court agreed with Lee Montana Newspapers that state agencies’ charging onerous fees for legal review of public documents is not supported by our Constitution, and that the right to access public records should not be conditional on an ability to pay such fees.
“This is a huge victory for transparency in government and for the public’s right to know.”
The PSC argued in court it was necessary to review documents before releasing them publicly. The agency did not return an emailed request for comment late Friday.
The state Constitution says Montanans have the right to examine documents and observe deliberations of state government, except when privacy demands outweigh the public’s right to know. In 2015, legislators passed a law saying agencies could charge a fee to fill a public information request and limited that fee to the “actual costs directly incident to fulfilling the request” including “the time required to gather public information.”
In court, Mike Meloy, the lawyer representing the newspapers, argued that by charging such a high legal fee, the PSC was putting in place barriers to accessing documents that should be available to the public.
“According to Lee Enterprises … the fees have a chilling effect on the public’s right to know because their right to access public documents should not be conditioned on their ability to pay. The court agrees,” Helena Judge Mike Menahan wrote in his Monday order.
The PSC had argued the legal review was an “actual cost directly incident to fulfilling the request” and that the agency had to spend real resources by paying someone to do the review. But Menahan said that cost was already part of existing staff’s scope of duties.
Menahan continued that the PSC had a duty to fill records requests and the legal staff’s salary is not dependent on which project they undertake for the agency.
“Regardless how inconvenient the PSC may find public records requests, they are no less a part of the agency’s duties than a ratemaking proceeding,” Menahan wrote.
Menahan also rejected a PSC argument that the cost of the legal review fell under the provision an agency can charge for the “time required to gather public information.”
“Gathering public information pursuant to a request is for the benefit of the requester. Legal review to prevent disclosing public information is for the benefit of the person whose information is protected where the agency wishes to avoid violating privacy rights,” Menahan wrote. “ … The agency may not shift its burden in identifying and protecting private information to a party requesting public information.”
During a court hearing, a lawyer for the PSC also argued legal fees allow the agency to negotiate with requesters to narrow their searches.
While Menahan said agencies have a legitimate interest in reducing the burden of broad searches, “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.”
As an example, Menahan said while the Gazette reporter asked for “all travel invoices, expense reports and reimbursement for private charge for the PSC and Department of Public Regulation staff,” the PSC did a search of emails using the term “expense reports,” which generated many documents unrelated to what the reporter asked for. That’s because the PSC frequently processes regulated service provider expense reports.
“This is not an issue where the requester must narrow its request, but rather the agency must refine its search methods,” Menahan wrote.
Menahan said the PSC’s interpretation of the laws meant “the right to public information may only be available to those who can afford to pay for it and may be further restricted to (the) amount a party may be willing to pay.”
Menahan continued that an agency can negotiate if it believes a request is more extensive than intended to narrow what’s being asked for, but “it may not negotiate how much information a party may receive based on the amount the party is willing to pay.”
The newspapers had also asked for the judge to block the charging of hold notice fees, but Menahan found that to be part of the actual cost of filling a request and said could still be charged.