Montana's Constitution applies to all Montanans - including the governor

In the many years I had the privilege of teaching Montana history, one of my absolute favorite chapters was on the 1972 Montana Constitutional Convention. The diversity of people gathered at our state capitol during the wintry months of 1972 created a document that has stood the test of time and been admired and emulated across this nation. Tragically, in this year of celebrating the 50th anniversary of that document, our Montana constitution is facing unprecedented attacks by the very people who have sworn to uphold it.

Our Declaration of Rights is broader and bigger than the Bill of Rights and its “Right to Know” guarantees that all Montanans have the ability to examine government operations and exercise citizen influence against government power. This “Right to Know” along with the “Right of Participation” are affectionately, and appropriately, known as the “Sunshine Laws.”

Recently, a legislative committee met to discuss and examine how the courts respond to the public’s requests for information on their inner workings. As it turns out, not just the courts but the Legislature and state agencies are doing a lot of work to make sure the public can exercise its Right to Know. One glaring omission from that examination was the Governor’s Office. Republicans have done much hand-wringing over the judiciary’s practices, but have failed to look into whether Gov. Greg Gianforte maintains the same standards of transparency and accountability to the public.

Last week, we learned more about Gov. Gianforte’s attempt to deny the Right to Know to Montanans seeking information on how and why he decided which bills to support or oppose during the most recent legislative session. The Governor’s Office wouldn’t hand over the memos tracking that decision making, claiming that these documents are under “attorney-client privilege.” But that’s not how the Right to Know works. You can’t defeat our rights just by having a lawyer write your documents or copying one on an email. The public has the Right to Know what policy advice the Governor asks for and receives.

We also know that the Governor’s Office has been charging exorbitant fees to avoid giving members of the public access to their government records. Requests have been made for the lieutenant governor’s emails, which are unquestionably information the public has a Right to Know. The decisions and communications of senior government officials are at the heart of what Right to Know means. But these requests were effectively denied when the Governor’s Office said the records would be handed over only after charging the citizens tens of thousands of dollars. The records have been compiled, but the governor won’t give them over without a massive payout.

Finally, the Governor’s Office has obstructed the public’s Right to Know through unconscionable delays. For example, a citizen wanted to discover why the governor decided to drop “bad actor” actions against Hecla Mining, which had previously stopped that corporation from continuing to poison our land and water. The Governor’s Office staff and their compensation have grown massively, so it shouldn’t take long for someone to perform one simple search on their email server. But months later, the Governor’s Office still hasn’t handed over the documents the public clearly has a right to see.

With these indefensible actions, the governor is betraying our history, our Constitution and our rights, including the Right to Know what he’s up to behind closed doors. This is what we need to investigate — and change — if we care about upholding our Constitution, and if we’re serious about limiting government power.

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Rep. Moffie Funk, D-Helena, is a retired teacher and represents House District 82 in the Montana Legislature.