Right to no 

As if Montana legislators weren’t busy enough trying to conjure the revenue to cover the state’s worst budget crisis in decades, one senator is poised to introduce a bill that would weaken Montana’s constitutional protection of the public’s “right to know”—one of the strongest such state protections in the nation.

Senator Walter McNutt (R-Sidney) is set to introduce Senate Bill 142 on Friday, Jan. 17. The bill’s restrictions would apply to sensitive information, including “utilities, transportation systems, the financial infrastructure, any kind of infrastructure that could affect the economy, public safety or our daily way of life,” says Jim Green, administrator of Montana’s disaster and emergency services, who helped draft the legislation.

“There’s concern about how to organize everybody to work toward a common good without telling the ‘bad guys’ where we’re most vulnerable. That’s what this bill is trying to address,” Green says. Dal Smilie, chief counsel for the State Department of Administration, has briefed the homeland security task force committee on right to know issues. He is also the final author of House Bill 142.

Smilie says the need for the bill became apparent when the U.S. attorney general’s office, the F.B.I. and various private sector companies—particularly utilities—began declining to share certain information with legislators because of “the fear that it would be too easily shared under the right to know” provision. Smilie, who met and discussed the issue with both the FBI and the attorney general’s office, says that these agencies “didn’t feel free to talk in a meeting, or to put forward critical information that could be shared with the public.”

Representative Dan McGee (R-Laurel) first hoped to address those concerns with a proposed amendment to the state Constitution. The new bill is aimed at the same goal, but wouldn’t need the two-thirds majority that a constitutional amendment would require.

Though he believes passage of the bill is necessary, even McGee acknowledges that implementation could raise civil liberties concerns. The bill describes withholdable information as anything that could constitute a threat to the state’s “critical infrastructure,” which could be interpreted broadly. “There is always that danger. Once you start going down this road, there has to be a ‘dynamic tension’…The last thing we want to do in the country or in this state is to go to 1932 Germany.”

McGee believes that such dynamic tension is a necessary fall-out of the war on terrorism.

“You have dangers from every direction,” McGee says. “One is the real, although perhaps not immediate threat of some terrorist activity. The other is something much more subtle, and that is a fundamental change to the freedoms and liberties we hold so dear.”

And might the alteration of our freedoms and liberties be considered a minor victory for terrorists? “I guess someone could argue that,” McGee answers, “but I won’t acknowledge that they’ve won anything.”

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