Great Falls Tribune

 

July 31, 2009

 

Judge reaffirms that city must turn over SME-related papers

By JOHN S. ADAMS Tribune Capitol Bureau

HELENA — A District Court judge has again ruled in favor of an environmental group that sued the city of Great Falls for the release of documents detailing the relationship between the city and Southern Montana Electric Generation & Transmission Cooperative.

In the most recent ruling, District Judge E. Wayne Phillips of Lewistown reaffirmed much of his June 2008 ruling in which he ordered the city of Great Falls to disclose all documents of the relevant agreements between itself and SME, including draft documents. Phillips' original order has yet to be enforced because SME and the city maintain the documents contain information protected by attorney-client privilege, privacy laws and trade-secrets laws.

In his 18-page ruling delivered Wednesday, Phillips discounted the defendants' claims to privacy, stating that corporations, as nonhuman entities, do not have individual privacy rights under the state constitution.

Phillips gave SME and the city until Aug. 14 to provide the court with a detailed accounting of documents the two parties believe should be withheld from public view because of trade secrets and privacy concerns.

The city of Great Falls and SME have proposed building a coal-fired power plant east of the city. Earlier this year SME said it was putting plans for the coal-fired plant on hold and instead would pursue plans for a gas-fired power plant. The company has retained its permit for the coal-fired plant and is in the process of applying for a modified permit to build the gas plant.

The lawsuit in question arose in March 2007, when a member of the Helena-based Montana Environmental Information Center, Charles Christensen of Great Falls, was denied access to drafts of city documents, including contracts and financial agreements between the city and SME. In April 2007, then-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 of that year, a MEIC employee was denied access to some documents because they were in draft form. The group sued the city later that month for access to the documents. The Montana Newspaper Association joined the suit in November 2007.

Phillips ruled in favor of MEIC and the MNA on June 12, 2008, and ordered the city to turn over the documents. When the defendants failed to turn over the documents after more than a month, MEIC filed a court motion on July 30 asking the court to enforce its order.

At that point, SME and the city entered into a stipulation agreement, resolving MEIC's July 30 motion and providing the terms for the city's disclosure of the documents. According to court records, that stipulation required the city to publicly release a document log that includes a description of each document and an explanation of why that document should be confidential.

The city and SME argued that the documents were protected under the principle of attorney-client privilege. In his ruling, Phillips stated that SME hasn't submitted any records indicating that its attorneys were retained by the city.

"Mere possession of SME-attorney communication by Great Falls relating to a joint project does not establish an attorney-client relationship between the city and counsel," Phillips wrote.

He also ruled that SME has until Aug. 14 to submit to the court a specific list of which portions of which documents it believes are protected from disclosure by state law, with specific rationale for each alleged secret in the document.

Phillips gave SME some leeway on the Aug. 14 date, stating that because of the court's delay in releasing the order, the cooperative can seek a later deadline.

Jim Jensen, MEIC's executive director, said Phillips' ruling affirms that once SME handed the documents over to the city, they became public documents.

"Frankly, we've never asked for, and it was never was our intention to see, anything that was a legitimate trade secret," Jensen said. "But once something has been given to a public entity, it becomes a public document, and by doing so, SME has waived its right to trade-secret protection."

Officials for SME did not respond to requests for comment. Great Falls City Manager Greg Doyon said his office was reviewing the ruling with acting City Attorney Chad Parker.

"The ruling is under review by city officials, and we'll make sure we get the decision to the commission so they can keep abreast of what's happening," Doyon said. "We'll prepare whatever we need to in terms of documents for the judge."

Jensen said Phillips' ruling gives SME "one final gasp" to show its has a legitimate trade secret to protect, but that the judge "very narrowly defined what that might be."

"The judge is not buying the city's argument and has specifically said that the city cannot avoid its constitutional obligations by joining in a partnership with SME, which is what the city has claimed," Jensen said. "Citizens' right to know and examine public documents cannot be evaded by simply entering into a partnership with an industrial developer, in this case SME."