Montana Freedom of Information Act

What is the Montana Freedom of Information Act?

The Freedom of Information Act (FOIA) is a federal act passed by Congress in 1966, establishing the public's right to inspect or copy existing records from federal government agencies. The FOIA law in Montana is the Montana Public Records Act (PRA). The PRA mandates that no person may be deprived of the right to inspect documents or observe the meetings of all public bodies or public agencies of state government and its subdivisions. However, the Act provides exceptions in cases where individual privacy demands exceed the merits of public disclosure. Without showing compelling state interest, the Montana Public Records Act considers the right to individual privacy fundamental to the well-being of a free society.

The goal of the Montana Public Records Act is to keep the operations of the Montana government open to public participation and observation. The Act aims to accomplish that by ensuring effective and efficient management of public records and public information, pursuant to Article II, Sections 8-10 of the Montana Constitution. Montana's FOIA was initially enacted in 1895 but was amended in 1972 as part of the state's new constitution. In Montana, all levels of government are accessible to the public, and any resident of any state may request records from Montana agencies.

What is Covered Under the Montana Freedom of Information Act?

All public records and public information of all governmental bodies or public agencies at all levels in Montana are subject to the Public Records Act. Per Section 2-6-1002 of Montana Statutes, a public record refers to public information that:

  • Is retained in any media and retrievable in a useable form for future reference
  • Is designated for retention by the state records committee, the judicial branch, the legislative branch, or the local government records committee.

Public information means any information created, owned, used, or retained by any public agency relating to the transaction of official business, irrespective of the form, except for confidential information stipulated to be protected against public disclosure under relevant law.

Public agencies as covered under the Montana PRA refers to the executive, legislative, and judicial arms of the state, local government, a political subdivision of the state or local government, any agency, department, office, commission, board, bureau, division, or other public authority of the judicial, legislative, or executive branch of the Montana government.

Under Montana Code Annotated § 2-3-203(1), records of nongovernmental bodies or agencies supported in part or whole by public funds are also open to public access under the Montana PRA. Note that if a record is not generated by a public body and does not relate to the duties and functions of that body, it does not constitute a public record that must be accessible to requesters.

What Records are Exempt from the Freedom of Information Act in Montana?

According to Montana Code Annotated § 2-6-1002(1), the Montana Public Records Act exempts the following types of records from public disclosure:

  • Any record that is constitutionally protected from disclosure because it contains private information that clearly outweighs the benefits of disclosure.
  • Any record that is considered relevant to judicial deliberations in adversarial proceedings.
  • Any record deemed necessary to maintain the integrity of secure facilities.
  • Any record that is designated as confidential by statute or court decision.

Pursuant to Montana Code Annotated § 2-6-1003, a public officer may prevent access to information pertaining to individual or public safety or the security of public facilities, such as correctional facilities, public schools, or prisons, if disclosing the information jeopardizes the safety of facility personnel, students, inmates, or the public. Also, the Montana Historical Society generally honors restrictions imposed by private record donors, provided it does not apply to public information. However, for such records, all limitations must be lifted no later than 50 years from the date of receipt of the private record. After the limitation period expires, the private records must be made public.

How Do I File a Montana Freedom of Information Act Request?

The Montana Public Record Act does not stipulate specific methods for filing public record requests in the state. However, under Montana Code Annotated § 2-6-1006(1), each public agency is required to make the means of requesting public information accessible to all persons.

The first step in filing a Montana public record request is to decide the records you want access to and the custodian of the record. Typically, the custodian of the record is the administrative office for a governmental body or agency, school superintendent, or police chief. Since the Montana PRA includes no provisions against informal requests, you may contact the record custodian via telephone. Typically, you will be able to find the telephone number of an agency's record custodian on the agency's website. You may also check the website of the agency for fillable public record request forms or downloadable PRA application forms that may be completed and mailed to the applicable addresses.

Upon contacting the record custodian by telephone or visiting the agency's website, ask or check to see if any policy exists for processing public record requests. If so, request or download a copy and review it before submitting your request.

You may also make formal written requests to the record custodian's contact mail. Such requests should include as much information as possible to aid the custodian in finding the requested record. Typically, a written public record request should consist of:

  • Your name, address, and phone number
  • An accurate description of the requested record.
  • A statement requiring the custodian to provide non-exempt sections if the record contains information exempted from disclosure
  • The date period for the requested record
  • Any clues that may help the agency to locate the requested record.

The following are examples of filing public record requests in Montana:

  • The Montana Department of Natural Resources and Conservation (DNRC): To request public records from the DNRC, contact the DNRC Records Manager at kdherman@mt.gov. In your request, provide detailed information about the record you intend to inspect or copy.
  • The Montana Department of Labor and Industry: To request public records from the Montana DLI, complete the online public record request form.
  • The Montana Department of Transportation: To request public records from the Montana Department of Transportation, complete the MDT public record request form online.

What is the Cost of a Freedom of Information Act Request in Montana?

According to Montana Code Annotated § 2-6-1006(3), the Montana PRA authorizes public agencies and governmental entities to charge a fee for gathering and copying public records. However, the fee must be documented and may not exceed the actual costs incurred in fulfilling the request. The actual cost of copying the record includes the cost of materials and supplies used to create the duplicate and may include labor or other overhead charges connected with creating the copy. Also, per Montana Code Annotated § 2-6-1006(4) and §2-6-1006 (5), the cost of customization will be included in the fee for a public record request if the requester desires to obtain a customized response to a record request.

Additionally, payments for public record requests may be charged in advance before undertaking any gathering of records in accordance with Montana Code Annotated § 2-6-1006(4). You may obtain the specific cost for requesting public records from an agency by visiting the agency’s website or contacting the agency’s public records officer through the telephone number stated on the agency’s website. For instance, the Montana Department of Transportation charges $0.35 per page for a paper copy of a public record. The Montana Department of Labor and Industry also charges $0.35 per page and $17.83 per hour of staff time used to prepare photocopies of public records. There are no specific provisions for fee waivers under the Montana public record act; hence, waivers may only be offered at the discretion of each record custodian.

Montana also makes a provision for agencies to charge special fees for certain information. In addition to the usual fee authorized under Montana Code Annotated § 2-6-1006, the department of revenue may charge an extra fee to cover the cost of creating and maintaining the property valuation and assessment system database from which a public record is requested. The fee is charged to individuals, federal and state agencies, and other organizations who request the database or a portion of the database from any department property valuation and assessment system. The fee may not be charged to the governor's budget and program planning office, the state tax appeal board, or any legislative body, its members, or employees.

How Long Does it Take to Respond to a Freedom of Information Act Request in Montana?

The Montana Public Records Act does not stipulate any specific period or timeline for responses to public record requests. Per Montana Code Annotated §2-6-1006(2), agencies are only required to respond to public record requests in a timely manner. Record custodians must make requested records available for inspection and copying or provide requesters with approximate dates and charges for accessing the records if the records cannot be readily gathered and identified.

Pursuant to Montana Code Annotated § 2-6-1009(1), public agencies are required to provide a written explanation for denial to the requester if access to a public record is not granted. Under Montana law, the requester is allowed to consider the written denial as a suggestion to proceed to file an action in the district court in order to compel the disclosure of the record.