July 18, 2008
Judge says city must reveal documents in SME relationship By RICHARD ECKE Tribune Staff Writer
State District Judge E. Wayne Phillips of Lewistown has ruled the city of Great Falls should not have refused to release drafts of documents to members of an environmental group last year.
The documents involved the city's relationship with the Southern Montana Electric Generation & Transmission Cooperative. SME and the city of Great Falls have proposed a coal-fired power plant east of the city.
At one point in his ruling, Phillips called a position taken by the city in the case "disingenuous." The ruling was dated June 12, but a mixup in the Clerk of Courts office prevented the parties from being notified until this week.
Anne Hedges, program director for the Helena-based Montana Environmental Information Center, said she expected a positive ruling and wondered "how the city could argue this case with a straight face."
"It's a wakeup call to the city of Great Falls," Hedges said Thursday.
City officials could not be reached to comment on the ruling Thursday afternoon.
Great Falls attorney Gregg Smith, who has questioned the city's energy moves, also has jousted with the city over access to documents. Smith could not be reached Thursday evening for his reaction to the ruling.
The case arose in March 2007, when an MEIC member from Great Falls, Dr. Charles Christensen, was denied access to drafts of city documents, including contracts and financial agreements between the city and SME. In April 2007, City Attorney David Gliko said no feasibility study involving the coal plant existed, adding that any preliminary drafts of agreements between the city and SME were not public documents.
In May, Hedges also was denied access to some documents because they were drafts.
The group sued in May 2007, and the Montana Newspaper Association joined the suit in November. A hearing on the dispute was held March 5 in state District Court in Great Falls.
In his ruling, Phillips rejected the city's argument that a state law dealing with retention of documents bolstered the city's position that draft documents are not public records. Gliko also argued that the federal Freedom of Information Act exempts drafts from public disclosure. MEIC attorney Kim Wilson of Helena replied that Montana law contains no such exception.
In his decision, Phillips said "that the mere fact that it might be more convenient for the city to negotiate beyond the public's view, does not alter the constitutional requirement that the government conduct its business openly."
Phillips also stated in his ruling that the city attorney "has simply misconstrued the statute" that states a preliminary draft is not a public record "for the purposes of" retaining or disposing of public records. Phillips ruled that particular state law does not address the disclosure of documents to interested citizens. The judge later called the city's stance on that point "disingenuous."
Phillips also ruled that the city should pay the environmental group's attorney fees.
"In the instant case, plaintiff (MEIC) has prevailed on a very substantive public policy issue, whether a government entity can refuse to disclose a preliminary draft of a final document, which itself implicates the health and welfare of thousands upon thousands of people living within the microclimate of the proposed power plant," Phillips wrote.
In recent weeks, new City Manager Greg Doyon has expressed misgivings about SME's preference for secrecy in some matters, citing the city's obligations to disclose information to the public. SME is comprised of five member-owned nonprofit rural electric cooperatives, while the city is a public agency.
Hedges said she wants to look at documents that reveal the city's relationship with SME.
"The city's given millions of dollars to SME," Hedges said. "I'm guessing I'm going to need to go to Great Falls and go through their records again."