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Federal agencies can pay the public to review documents for privacy and other interests before releasing them as “public information,” according to the order. in Yellowstone District Court this week.
And they should have time to review the records, the judge said.
“The rapid release of documents within hours without review, as the Petitioner wants the Respondents to do, violates the duty to balance the justice of the Constitution to understand and comply with privacy and other legal requirements,” said Judge Mike Salvagni in the Oct. 26 order.
The judge also stated that the law is plain and simple: “The plain language of the law authorizes a public agency to pay for all actual costs incurred in carrying out a records request by the people – nothing intervenes – on the way to produce. as little waste, expense and effort as possible.”
In December 2021, plaintiff Gene Jarussi, a Billings attorney, sued the Governor’s Office, Department of Justice and Administration after he submitted a records request but did not receive documents. The order said he did not pay the alleged costs of producing the records, and in the lawsuit, he asked the court to find that “the legal review and records removal was not reasonably priced. “
While the judge found the charges to be fair, he also acknowledged that other Montana judges have made different decisions in recent cases. One order found that the State Auditor could not pay for a legal review, Salvagni said, and another found that the Public Works Commissioner could not pay for the review, even if different reasons.
But Salvagni said he was not bound by those decisions, and that his job was to answer the question before him, he was just interpreting the law.
Jarussi asked for many records. In part, his request required the government to release “all emails, text messages, phone logs, and other electronic information sent to or received from accounts maintained by Lt. Gov. Kristen Juras” from the time he took office until the date of publication. , said the order.
“It should be noted that the date of publication is an actual date,” the court said.
The judge said the Governor’s Office said the original request “included over 15,000 emails, plus attachments,” and required 950 hours of work and $30,266.16 to fulfill the request.
The petitioner agreed to limit the request, and the Governor’s Office determined that the new bill was $5,479.99 for 173 hours, based on the hourly rate of the workers who would perform the work, the administrative staff, legal advisors, and IT.
Jarussi, who has been involved in an investigation into alleged financial violations, also asked the Administration for statements from Juras, Attorney General Austin Knudsen, and Special Counsel Jake Eaton, but said the DOA did not have the records he requested.
He asked the Justice Department for two sets of records, the information provided and received by Eaton and AG Knudsen, along with the actual deadline. The DOJ offered a price for reviewing thousands of pages, and asked him to limit his request, for example, to enforce time or identify email recipients, the judge said. .
(Jarussi also asked the DOJ for records related to possible changes to the AG’s offices, and the order said the DOJ identified “limited documents” and told Jarussi that publish them for free.)
In ruling for the State of Montana, the judge referred to MCA 2-6-1006 as part of his reasoning. It states that a person can request a record from a public agency, and the public agency will provide the record – or give the person an estimate of when the request will be made and the price paid.
“A public agency may be charged for complying with a public information request,” the judge said, citing Montana Code. According to the law the costs must be effective and not exceed the amount necessary to fulfill the demand.
In this case, the judge said the Governor’s Office and the DOJ calculated the costs “with an emphasis on reducing costs, waste and effort.” For example, he said they used hourly rates for lawyers doing the work, and for the Governor’s Office, scheduled review time with administrative staff whenever possible.
The judge also said the plaintiff’s attorney made suggestions that would not be helpful, such as asking the court to review the records. (“Plaintiff has not asserted any authority for the request,” the judge said.)
He said that another proposal, to simply copy all the information onto a backpack and send it, “doesn’t do any good” because it violates due diligence. And he said the idea of having the plaintiff sit in front of a computer in Helena to review the records himself as a leader and save the government time was “absurd” and “contrary” to matters that the law intends to protect and demand. of “delusion.”
“The statement of the petitioner is false and does not require discussion, so the Court dismisses it,” the order said.
(However, he said the opinion shows the plaintiff knew that the review and payment were necessary.)
In a phone call, attorney John Heenan, who represents Jarussi, said his client wants to see records that show what elected officials have done with the money of the nation, but ended in a battle for legal review fees.
Before deciding whether to appeal, he said he would consult with people more familiar with the legal issues at play and those involved in recent cases where judges have ruled differently. First of all, he said he and his client believe in the “sanctity of public information” and don’t want to do anything to make it more difficult to obtain the records.
However, Heenan said government agencies would try to make the records inaccessible to the public and backfire, and he said that would have dire consequences. But he said his client would continue to pursue the matter despite the setbacks even though he ended up limiting his bid and payment.
“The Attorney General’s Office regretted spending time and money fighting Mr. Jarussi was just giving him a message,” said Heenan.
When the plaintiff first filed the lawsuit, University of Montana journalism professor and media law expert Lee Banville admitted that he had seen federal agencies throw up barriers road to public documents in the previous months. However, in this case, he said the scope of the request was too broad and different from day to day, not that his students are taught how to request public records.
The decision of Jarussi v. State
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