HB 271: Provide that there is a limited executive privilege to the public records act - Montana

HB0271_X(2).pdf → HB0271_X(3).pdf · 4 edits

MODERATE

This bill narrows the Governor's ability to withhold public records by removing the 'merits of public disclosure' balancing test, requiring privacy interests to clearly outweigh public interest. It adds a strict 60-day expiration limit for exemptions and expands the definition of 'constitutional officers' to include the Secretary of State, Superintendent of Public Instruction, and Auditor.

Scope change

The scope of executive privilege is reduced by eliminating the discretionary balancing test and adding a hard time limit, while the scope of protected officials is broadened to include three additional cabinet-level officers.

REQUIREMENT

Removed the legal requirement that the Governor must balance individual privacy against the 'merits of public disclosure' when deciding whether to withhold records.

Modified the criteria for withholding records; the Governor can now only withhold information if their privacy interest 'clearly outweighs' the public interest, rather than just balancing the two.

TIMELINE

Added a mandatory expiration date: executive exemptions must end no later than 60 days after the underlying issue is resolved or if the exemption is upheld in court.

DEFINITION

Expanded the list of 'constitutional officers' subject to these rules to include the Secretary of State, Superintendent of Public Instruction, and Auditor.

HB0271_2(14).pdf → HB0271_X.pdf · 5 edits

MODERATE

This bill replaces the vague common law executive privilege with a specific statutory exemption, limiting the Governor's ability to withhold public records. It clarifies that the Governor cannot claim privacy for policy or legislative matters and requires any withheld information to be narrowly tailored. The exemption automatically expires once the underlying issue is resolved or after 60 days, and it is waived if the information is voluntarily shared with a third party.

Scope change

The scope of the executive exemption was narrowed significantly; it now applies only to specific situations where individual privacy clearly outweighs public interest, rather than a broad common law privilege.

ELIGIBILITY

Removed the broad common law executive privilege and replaced it with a statutory exemption that only applies when the Governor's individual privacy interest clearly outweighs the merits of public disclosure.

REQUIREMENT

Added a requirement that the Governor does not have a privacy interest in information regarding policy, politics, or legislative matters.

Mandated that any redaction of withheld information must be limited to the narrowest extent possible.

TIMELINE

Established a 60-day expiration limit for the executive exemption, after which the information must be released if the underlying issue has not been resolved.

DEFINITION

Updated the definition of 'confidential information' to explicitly include information protected by constitutional privacy interests.

HB0271_2(6).pdf → HB0271_2(7).pdf · 1 edit

MINOR

The amendment renumbered the subsections of the bill's exceptions list, shifting the numbering from (b) and (c) to (a) and (b) respectively. This change aligns the text with a preceding section that was likely renumbered, ensuring the list of confidential information remains consistent throughout the document.

TECHNICAL

The numbering of the exceptions list was updated from (b) and (c) to (a) and (b) to match the structure of the preceding text.

HB0271_2(3).pdf → HB0271_2(4).pdf · 1 edit

MINOR

The bill renumbered the subsections regarding the executive exemption, shifting from a sequential (4), (5) structure to a nested (3)(a), (3)(b), (4), (5) format. This change clarifies the hierarchy of rules governing when the exemption expires versus when it is waived, ensuring the text aligns with the bill's new overall structure.

TECHNICAL

Renumbered subsections for the executive exemption from (4) and (5) to (3)(a), (3)(b), (4), and (5) to reflect a reorganization of the bill's sections.

HB0271_2(2).pdf → HB0271_2(3).pdf · 4 edits

MODERATE

The bill was amended to clarify that the governor's executive exemption must be narrowly tailored to specific privacy interests and allows for redaction of public records. It also establishes a 60-day expiration limit for exemptions unless challenged in court and adds a new legal pathway for citizens to sue if they believe an exemption is overly broad.

Scope change

The scope of the executive exemption was narrowed to require a clear showing that individual privacy interests outweigh public disclosure merits, and the duration of the exemption is now strictly limited to 60 days or until the underlying issue is resolved.

REQUIREMENT

The requirement for the governor to assert an executive exemption was modified to mandate that it be 'narrowly tailored' to specific information and allow for redaction only to the 'narrowest extent possible'.

ENFORCEMENT

A new enforcement mechanism was added allowing individuals who receive redacted public information to file a lawsuit alleging the exemption application is overly broad.

TIMELINE

The duration of the executive exemption was modified to automatically expire after 60 days if not challenged in court or if the underlying issue is resolved sooner.

DEFINITION

The definition of 'confidential information' was modified to explicitly state that the term is limited to information where an individual privacy interest clearly exceeds the merits of public disclosure.

HB0271_1(7).pdf → HB0271_2.pdf · 4 edits

MODERATE

HB 271 was amended to significantly restrict the Governor's ability to withhold public information based on personal privacy claims. The changes remove the Governor's individual privacy interest as a valid reason for exemption, limit exemptions strictly to policy and legislative matters, and clarify that exemptions expire once their specific purpose is served or after 60 days.

Scope change

The bill's scope was narrowed regarding executive exemptions; the Governor can no longer use personal privacy as a justification to withhold public records.

ELIGIBILITY

Removed the provision allowing the Governor to assert an executive exemption based on an 'individual privacy interest'.

REQUIREMENT

Added a new requirement stating that any executive exemption must pertain only to policy, politics, or legislative matters.

Clarified that redactions of public information must be limited to the narrowest extent possible.

DEFINITION

Modified the definition of 'confidential information' to explicitly state that exemptions are limited to information where a privacy interest exceeds public disclosure merits, but removed the Governor's personal privacy from this calculation.

LC1390.pdf → HB0271_1.pdf · 1 edit

MINOR

The bill was renumbered from LC 1390 to HB 271 and the list of sponsors was updated to reflect the current legislators. The substantive text regarding public records law, executive exemptions, and definitions appears to be identical in both versions, suggesting the changes are primarily administrative updates for a new legislative session.

Scope change

The bill's scope and applicability remain unchanged.

TECHNICAL

The bill number was changed from LC 1390 to HB 271, and the list of sponsors was updated to include current legislators.

Provide that there is a limited executive privilege to the public records act

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