House Bill 100 proposed in the Montana Legislature sounds good on the surface, touted as streamlining the process. But the details indicate otherwise. 

The legislative sponsors say the legislation will help set deadlines and fees. However, based on our research, several key provisions of the bill would make access to public records far worse – and Montana one of the most secretive states in the nation. 

The best part of the bill is a section making state agencies more transparent in how they handle public records requests. It requires state executive agencies to designate a contact for records requests on their websites, along with posting instructions and records requests online. 

But a host of other provisions will cause huge problems for requesters: 

• Applies only to state executive agencies, letting local governments off the hook. 

• It would allow agencies to force requesters to pay for copy fees up front, “prior to identifying and gathering the requested public information.” How will they know how much search, redaction and copying will cost before doing the search? This is a huge disincentive for a lot of people and a way agencies can get people to go away. 

• States that agencies must respond to requests within five days, which is fine, but then allows agencies to provide the records in 90 days, or even six months if the agency says it needs that much time. This would be the worst law in the nation – records retrieval would be routinely drawn out for three to six months. For journalists, in particular, access delayed is access denied. 

• Allows copy fees to be charged for search and redaction time, as well as a “convenience” fee and “other reasonable costs.” Also allows for a filing fee of $20 for what officials deem large requests. Combined, all of this would make this one of the worst fee provisions in the nation. The best laws charge only for cost of materials (e.g., copy paper, oner), not staff time. 

• Allows the secretary of state to charge additional fees, but exempts legislators or other government officials. Allowing extra fees for specific agencies will spread like a virus. 

• If a person sues in court and wins, he or she “may” be awarded reasonable attorney fees. It should say “shall.” The states with the best compliance are the ones with mandatory fee shifting, according to our research. 

Not only will this legislation, if passed, harm requesters, but some of these provisions could spread to other states, further reducing transparency throughout the country. 

Posted: January 21, 2025
Category: Brechner News
Tagged as: Brechner FOI Project, Brechner Freedom of Information Project, FOI, FOIA, Secrecy Tracker