The Montana Supreme Court Thursday ruled that Gov. Greg Gianforte may be allowed to withhold certain documents from public review.
The case centered on the question of whether or not the governor has “executive privilege.” That’s the legal right to keep files and communications private and unavailable for public access.
The Montana Supreme Court ruled 4-3 that the governor can claim executive privilege for specific documents — but only if he proves in a lower court that keeping those files private is essential to carrying out his constitutional duties.
“It is a big deal," Attorney Mike Meloy says.
Meloy runs the Montana Freedom of Information Hotline, which advocates for Montanans’ constitutional right to access information held by the government. He says the ruling chips away at the “right to know.”
“If a governmental entity does not want to provide access to documents, they can claim this privilege,” Meloy says.
Under the ruling, Montanans can sue for access to the documents, but Meloy says many won’t be able to due to the time and cost of going to court.
This case centered on documents that contained advice from state agencies on how Gov. Greg Gianforte should respond to bills from the Legislature. Gianforte’s attorneys argued those communications have to be kept private to ensure honesty from his advisors. The court majority agreed that reasoning could justify withholding documents on a case-by-case basis.
The case will now be reviewed by a district court judge, who will determine whether Gianforte has a right to keep the documents in question private.
Attorney for the plaintiff Constance Van Kley in an interview with MTPR said the court rejected the governor’s claim of “absolute” executive privilege.
“The majority opinion is crystal clear that that privilege is extremely narrow, and the burden falls on any governor to establish the propriety of that extremely narrow privilege,” Van Kley said.
In an email, Gianforte spokesperson Kaitlin Price said the governor is reviewing the decision.