Montana University Board of Regents: Please listen to your fellow regent, Martha Sheehy.
Don't listen to her because she's represented The Billings Gazette or other newspapers, necessarily. Listen to her because part of her impressive legal career comes from successful open meetings and public records fights. In other words, she has been a warrior on the front line of the battle to ensure that Montana's unique state constitution continues to ensure the public's right to know what its government is doing.
At issue is a new draft policy that would mostly mandate the university system to charge fees for public information and documents request.
We'll state this plainly for the record: If the university decides to implement this system, we can nearly guarantee a legal challenge.
We're not just saying this to be feisty or confrontational. We're doing it because we believe the university would be adopting a policy that flies in the face of the state's constitution, and it would be setting itself above the law.
It's hard not to think that such a policy coincides with the university's attempt to thwart public scrutiny of the Jordan Johnson case in which a star quarterback for the University of Montana was nearly expelled except for university system boss Clayton Christian stepping in to stop the expulsion.
The public still doesn't know why Christian stepped in; all it knows is how it looks — like a star quarterback was saved because of his position on the football team.
This new policy, if it's adopted, would put another obstacle and barrier for the public, and hinder its ability to see what's really going on at any campus.
We have several problems with this draft policy.
First, it simply looks bad. At its most simple, this is a regulation aimed at making it more difficult to get public information. University officials may carp about the limited resources and the burden of answering an inquisitive public, but ultimately this policy appears to simply make it harder for the public and easier for the bureaucracy of higher education.
Secondly, the Montana Constitution guarantees that public has a right to know to what its officials and institutions are doing. By charging a fee, using the language that campuses "should" charge for information requests, this rule could be unconstitutional. The state's constitution does not say that the public has a right to know only if it can afford it. A person's ability to pay should never stop them from asking questions, and, more importantly, getting answers.
While this policy is clearly intended to have a chilling effect — that is, slow the number of information requests — it could slow the number of inquiries and yet increase the number of lawsuits.
If the university system adopts a policy of charging just to consider fulfilling an information request, we believe that many organizations, like The Billings Gazette, will be forced to sue the university for answers. This could mean an increase in legal fees because university policy does not have the same weight as state law, and could wind up costing the state more.
This policy could also drag out many requests. Let's give an example: If media organization or other entities who seek information are turned away because of cost, or this policy is challenged, we can foresee a scenario where the public fight for information garners plenty of attention, possibly attracting plenty of bad press for what could be a very small request.
It's also curious that the university system would adopt a policy like this. It seems like publicly employed officials, all of whom are paid through public money, are somehow burdened by pesky members of public who ask questions. We'd point out that part of being a public higher education institution is being accountable to the public. Public officials' job is to deal with the (drum roll, please) public.
This makes that harder and so it should be rejected.
Something to hide?
Finally, if the regents adopt this, it only continues the notion that the university system has something to hide. It's absolutely tone-deaf and more than a little suspicious that the regents considered this on the heels of the Montana Supreme Court decision which kept the reasons for overturning Johnson's case secret. This new policy would appear to be more of the same.
Here's the real irony: It seems like people who work in higher education, who are trying to encourage students to think critically, are crafting a policy that would make it harder to ask questions and get answers.
That's not a policy that promotes education. It's a policy that encourages ignorance.