ELECTRONIC COMMUNICATIONS & PUBLIC RECORDS FOR LEGISLATORS Todd Everts Pad McCracken Laura Sankey Keip
THE LEGAL OBLIGATIONS
The Public Trust Go Government is a trus rnment is a trust, and the of t, and the officer cers of the of the go government are trus rnment are trustees; and both the trus ees; and both the trust and the t and the trus trustees are creat ees are created for the benef d for the benefit of the people. t of the people. ─ Henr Henry Cla y Clay The holding of public of The holding of public office ce or emplo or employment is a public ment is a public trus trust, creat t, created b d by the conf the confid idence that the elect ence that the electorat rate reposes in the int reposes in the integrity of public of egrity of public officer cers, legislat , legislator ors, and s, and public em public emplo ployees. A public of ees. A public officer cer, legislat legislator or, or public , or public emplo employee shall carr ee shall carry out th y out the individual’s duties for the e individual’s duties for the benef benefit of t of the people of the s the people of the stat ate. e. ─ from § from § 2-2-1 -2-103, Montana Code Annotat 03, Montana Code Annotated
Montana Constitution Art. II, sec. 8 Art. II, sec. 9 Right of par Right of participation. icipation. Right to kno Right t know. . The public has the right The public has the right No per No person shall be on shall be depriv deprived ed to e to expect g governmental of the right t of the right to e examine amine agencies to af agencies t afford such rd such documents or t documents or to obser observe e reasonable oppor reasonable opportunity unity the deliberations of all the deliberations of all for citizen par r citizen participation icipation public bodies or agencies public bodies or agencies in the operation of the in the operation of the of stat of state go e government and its rnment and its agencies prior to the f agencies prior t the final nal subdivisions, except in subdivisions, e cept in decision as may be decision as ma y be cases in which the demand cases in which the demand pro provided b ided by la law. of of individual priv individual privacy clearly acy clearly exceeds the merits of ceeds the merits of public disclosure. public disclosure.
MT Constitution, Cont. Art. V, sec. 10 Art. II, sec. 10 Right of privacy Right of priv acy. Organization and Organ zation and procedure. procedure. The right of individual The right of individual … privacy is priv acy is essential t essential to (3) The sessions of (3) The sessions of the w the well-being ll-being of a of a the legislature and of the legislature and of free socie free society and shall y and shall the committee of the the committ e of the not be not be infringed infringed whole, all committ whole, all committee e without the sho without the showing ing mee meetings, and all ings, and all of a compelling of a compelling stat state e hearings shall be hearings shall be interest. int rest. open t open to the public. the public.
“Public inf “Public information” rmation” means inf means information rmation prepared, o prepared, owned, used, or retained b ned, used, or retained by an any y What public agency relating t public agency relating to the transaction the transaction of of of official cial busines business, regardless , regardless of of form, rm, is a except f cept for conf r confidential inf idential information that rmation that public must be must be prot protect ected against public d against public disclosure under applicable law. disclosure under applicable la record? “Public record” “Public record” means means public inf public information rmation that is: that is: It’s (a) (a) fixed in an d in any medium and is y medium and is about retrie re trievable in usable f ble in usable form f rm for future r future ref reference; and rence; and the (b) (b) designat designated f ed for ret r retention b ntion by the the content! … legislative branc … legislativ e branch[.] [.]
Why is this Important? The Presumption of Openness: The Presumption of Openness: Under the stat Under the state constitution and § e constitution and § 2-6-1 -6-1003, 003, Montana citizens ha Montana citizens have a right t a right to e examine amine and tak and take copies of public records - copies of public records - that hat includes the public records y includes the public records you creat u create and and st store on y ore on your o ur own email accounts with y n email accounts with your ur own de n devices vices Ex Exception: R ception: Records do no cords do not ha t have t to be made be made public when there is an individual priv public when there is an individual privacy acy right that is implicat right that is implicated AND that right t ed AND that right to priv privacy clearly e y clearly exceeds the merits of public ceeds the merits of public disclosure disclosure
1. Does the constitutional rig Does the constitutional right t t to kno know apply t apply to the particular political subdivision against whom the par icular political subdivision against whom Montana enf enforceme ement is sought? t is sought? Supreme The Legislativ The Legis ative Bran e Branch ch is a is a public body public body subject t subject to the pr the provis isio ions of Ar of Article ticle II, section II, section 9. 9. Court 2. 2. Are the documents in question “documents of Are the documents in question “documents of public bodie public bodies” subject t subject to inspe inspectio ction? The Montana Supreme Cour The Montana Supreme Court has br t has broadly oadly 3-P 3-Part def defined “docume d “documents of publi ts of public bodies bodies” t ” to mean mean those those Balancing Balancing documents “generat documents “generated or maintained b ed or maintained by a a public public Test Te body which body which are someh are somehow relat w related t d to the function the function and and duties of duties of that body that body.” .” 3. 3. Is there a Is there a priv privacy int acy interest present? rest present? 3a. 3a. If there is, does th If there is, does the demand of e demand of individual individual priv privacy clear acy clearly e y exceed the merits of ceed the merits of publi public discl disclosu sure? (A) (A) Does the per oes the person ha on have a subjectiv a subjective or actual or actual expectation pectation of of priv privacy? acy? (B) (B) Is socie s society willing t y willing to recognize that recognize that expectation as pectation as reasonable? reasonable?
What is Legislative Business? Legislative business is related to your function and duties as a legislator and your role as an enactor of legislation. Durin During the Sessi the Session: Legislativ Legislative bills, amendments and resolutions e bills, amendments and resolutions Committ Committee w work Records relat cords related t d to the transaction of y the transaction of your legislativ ur legislative e duties duties Voting f ting for bills or amendments r bills or amendments Communications with y Communications with your constituents ur constituents During the Interim: During the In rim: In Interim committ rim committee work ee work Communications with y Communications with your constituents ur constituents
What is Not Legislative Business? An Any writt y written communication that does not contain n communication that does not contain cont content relat ent related t d to legislativ legislative business e business does not need does not need to be be managed or re managed or retained f tained for a specif r a specific length of time ic length of time Ex Examples ma amples may include communications relat y include communications related t d to: Pe Personal b business Political activity litical activity Your non-legislativ ur non-legislative emplo e employment ment
HOW THE BRANCH RESPONDS TO REQUESTS FOR RECORDS
Branch procedure for requests for public records 1. General branch information, such as policies, procedures, and request forms, is easily accessible on the branch website 2. Requests for information are directed to the Executive Director or the Legal Services Director → if you get a request directly, you may refer the request to Susan or Todd for assistance 3. If the branch receives the request directly, you will be informed of the request 4. The branch will review the request and may contact you for clarification or greater specificity
Procedure, Cont. 5. If the request applies to your private email account, you will be responsible for fulfilling the request; you may seek legal advice or other assistance from the Legal Services Office 6. If the request applies to an mt.gov email account, the Executive Director will work with you and with branch staff to fulfill the request 7. The Legal Services Office will review any emails with you as necessary prior to delivering them to the requestor; you may also request a copy of all materials sent to the requestor
MANAGING YOUR PUBLIC RECORDS
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