It’s not over 

Lawsuit naming Indy awaits resolution

The Missoula Independent’s investigation into allegedly widespread corruption among law enforcement officers in Lake County started in 2011, when an anonymous source unexpectedly delivered a stack of documents to our office. For pursuing the pervasive wrongdoing, sheriff’s deputy Terry Leonard lost his job, as did POST Director Wayne Ternes and FWP Game Warden Frank Bowen. Bringing this story to light hasn’t been altogether easy for us, either. POST and then-state Attorney General Steve Bullock named us as defendants in a lawsuit they filed to keep POST’s investigation a secret.

It’s become a common tactic of government agencies in Montana. Faced with requests for constitutionally guaranteed public information, officials increasingly head straight to Montana District Court, where they file for declaratory judgment seeking guidance from the bench about their legal obligations. Predictably, the court cases drag out for months, and you know what they say about justice delayed. Just as significantly, the pre-emptive lawsuits preserve the government’s ability to stick interlocutors with a big legal bill.

In this case, POST argued that the accused officers’ rights of privacy outweighed the public’s right to know. We argued that whatever individual privacy rights the officers might have, they don’t apply when an individual breaches the public trust. And we complained that POST had abrogated its legal duty to make its own determination about the officers’ rights and turn over its files before bringing a lawsuit blocking our records request.

In the end, the officers either explicitly waived their privacy rights or the court sided with us. POST’s suit against the Indy took a year to get to this point, and it’s not done yet.

Now we get to argue about the attorney’s fees.

Montana law clearly gives plaintiffs in public records cases an opportunity to recover attorney’s fees from the government, if the plaintiffs prevail. But when the government’s the aggressor and sues first, as in this case, it’s not so obvious how the judge might rule, even if the government loses. That’s a significant stumbling block even for robust businesses like the Indy. Imagine the chilling effect on the small community papers in rural counties, or on ordinary citizens, who naturally share all the same rights to public information as professional news reporters.

Thanks to the zeal of crusaders like Leonard and the dedicated professionalism of Bowen, four of the alleged malefactors in Lake County have received disciplinary penalties. It remains to be seen how citizens will deal with the remaining loose ends, like the uncredentialed officer on the job in Ronan and the elected officials in Lake County who tolerated the lawless culture there and thwarted efforts to change it. But one thing’s obvious: For many, many years now, key officials at virtually every level of government have gone out of their way to prevent citizens from discovering what Lake County's lawmen have been doing wrong.

Matt Gibson
President

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