It's hard to believe, but the prevailing jurisprudence in Montana holds that the state can brazenly sue citizens who demand access to government records. That's what happened to the Independent when it sought the disciplinary records of Lake County law officers accused of misconduct. Reluctant to turn over the requested files without a court order, then-Attorney General Steve Bullock filed a lawsuit, naming the Indy as a defendant. The state argued that the accused lawmen had privacy rights that trumped the people's right to know.
We couldn't lay down and let the AG's office hold sway over the court. To ensure the judge heard a strong argument for the public's interest, the Indy lawyered up, and we more or less won, obtaining redacted versions of all the files we sought. Among the astonishing details, we found that Bullock himself had been badly embarrassed by the account of Frank Bowen, a warden with Fish, Wildlife and Parks. Bowen revealed how his FWP superiors, fearing the mess in Lake County made Bullock look soft on corruption, forced Bowen to stop pursuing his poaching investigation of several Lake County deputies, ordered him not to discuss his work and reassigned him.
Republicans tried to pry into the unfolding fiasco, convening legislative hearings to politicize the situation during Bullock's gubernatorial campaign. But with Bowen effectively gagged, they never got any meaty details until a year later, when we prevailed in court. By then, Bullock had already won the election.
You would think that once the court had sided with the Indy, we'd be entitled to some relief from the onerous legal burden. But you'd be wrong. Montana District Court Judge Kathy Seeley ruled that we had to foot our substantial legal fees entirely on our owndescribing our request for reimbursement as "a substantial injustice" against the state.
Yeah, our jaws dropped, too. But we're not the first people to encounter this kind of twisted legal reasoning. In her ruling, Seeley relied on some similar recent cases, and they've all gone the government's way on the issue of expenses. When it comes to attorneys' fees, the judges have discretion, and they've consistently endorsed the now-routine practice of government entities running to court every time privacy rights might interfere with the public right to know, regardless of whether the privacy claim is a fig leaf for unwarranted secrecy or not. It turns out that in Montana, your constitutionally guaranteed right to know only goes as deep as the pocket that pays your lawyer.