28,10,0,50,1
600,600,60,1,3000,5000,25,800
90,150,1,50,12,30,50,1,70,12,1,50,1,1,1,5000
0,1,0,0,0,40,10,5,0,1,0,15,0,1
Montana COVID-19 testing
Montana COVID-19 testing lab
Montana COVID-19 testing lab
Boulder River Bridge view
Boulder River Bridge view
Montana Fress Press explores forgotten communities
Montana Fress Press explores forgotten communities
Montana Governor Steve Bullock at Innovate Montana 2019
Montana Governor Steve Bullock at Innovate Montana 2019
Bikers and Hikers stranded at Mystic Lake Cabin
Bikers and Hikers stranded at Mystic Lake Cabin
Montana Governor Steve Bullock OKs construction of XL Pipeline in Montana
XL OK for Montana
XL OK for Montana
Griz management exceeds sustainable mortality rate
Griz management exceeds sustainable mortality rate

The state’s first GOP governor in 16 years has enlisted dozens of Montanans to help plan a COVID-19 response and pick new leadership for state agencies.

Gov.-elect Greg Gianforte, photographed at his Bozeman-area home in September 2020. Credit: Ray Lombardi, MTFP

HELENA — Gov.-elect Greg Gianforte has begun announcing advisory boards tasked with helping him craft a state COVID-19 response plan and identify candidates he can use to fulfill his campaign pledge to install new leadership atop state agencies.

As of Nov. 12, Gianforte’s transition effort had announced a COVID-19 task force and advisory bodies to develop recommendations for new directors at the Montana Department of Public Health and Human Services and the Montana Department of Corrections.

COVID-19 task force 

Gianforte’s first advisory body was named Nov. 10 and directed to work with state and local health officials to develop recommendations for managing the COVID-19 crisis.

It comprises the following members:

  • Kurt G. Alme of Billings, the U.S. Attorney for the District of Montana
  • Don Beeman of Bozeman, a member of the Bozeman Health Board of Directors and former VP of U.S. Commercial Operations for Merck’s Vaccine Division
  • Father Patrick Beretta of Butte, a parish priest at St. Patrick and Immaculate Conception Churches in Butte, a chaplain at Montana Technological University and member of spiritual team at St. James Healthcare
  • Daniel Bierschwale of Big Sky, the executive director of Big Sky Resort Area District
  • Dax Cetraro of Helena, the owner of Village Inn Pizza, Grand Plaza Casino, and the Rialto Bar. He is a past president of the Montana Tavern Association.
  • Ravalli County Commissioner Greg Chilcott, of Hamilton
  • Heidi M. Duncan, MD, FAAFP, of Billings, the medical director at the Billings Clinic 
  • Wayne Leiker, of Great Falls, the VP of Refining Operations at Calumet Refinery
  • Montana Nonprofit Association Executive Director Liz Moore, of Helena
  • Whitehall School District Superintendent Hannah Nieskins
  • Sidney Mayor Rick Norby, the president of the Montana League of Cities and Towns
  • Montana Chamber of Commerce President and CEO Todd O’Hair, of Helena
  • Montana Air National Guard Adjutant General Matthew Quinn, of Helena, who currently heads Gov. Steve Bullock’s Coronavirus Task Force
  • Montana Parent Teachers Association President Sheryl Scheafer, of Billings
  • Poplar Schools Superintendent Dan Schmidt
  • Cascade County Sheriff Jesse Slaughter, of Great Falls
  • Butte-Silver Bow Public Health Officer Karen Sullivan, MA
  • Randy Swenson, of Billings, owner of TenderNest Assisted Living
  • Northern Rockies Medical Center CEO Cherie Taylor, of Cut Bank
  • Steve Wahrlich, of Billings, owner of Best Western Plus Clocktower Inn & Stella’s Kitchen and Bakery. Wahrlich is also a Montana Lodging and Hospitality Association board member
  • Fort Peck Tribal Executive Board member and nurse Kaci Wallette

“Montana faces a public health crisis and economic crisis as a result of COVID-19 — which I trust the people of Montana to take seriously,” Gianforte said in a statement. “It remains my top priority to work together to protect the most vulnerable among us, while also safely and fully opening back up our economy.”

Dept. of Public Health and Human Services transition advisors

A second advisory committee was announced Nov. 11, with 11 members directed to “identify and review” candidates to serve as the next DPHHS chief.

Lee Newspapers reported Nov. 7 that DPHHS Director Shelia Hogan had left her post at the head of the health department, the largest state agency, to take a division administrator-level job in the state Department of Administration. That story noted that Hogan’s new position is at a tier in the state bureaucracy typically filled through a competitive hiring process, as opposed to gubernatorial appointments that often change from administration to administration.

The members of Gianforte’s DPHHS advisory committee are:

  • Kayla Anderson, a licensed addiction counselor and owner of Prairie Hills Recovery Center in Sidney
  • Carter Barnhart, the chief experience officer at Newport Healthcare, a teen and young adult mental health treatment center
  • Marilyn Bartlett, CPA, a senior policy fellow with the National Academy of State Health Policy.
  • Beth Brenneman, JD, an attorney with Disability Rights Montana
  • Jim FitzGerald, MPA, MSW, CEO of Intermountain, a statewide behavioral health nonprofit serving children, youth and families
  • Jonathan Griffin, MD, MHA, the chief medical innovation officer at St. Peter’s Health and former president of the Montana Medical Association
  • Montana Health Care Association Executive Director Rose Hughes
  • Al Olszewski, MD, an orthopedic surgeon and state senator. Olszewski was one of Gianforte’s opponents in this year’s GOP primary for governor
  • Deer Lodge Medical Center CEO Tony Pfaff
  • Fergus County Commissioner Carl Seilstad, who is also the board chair for the South Central Montana Regional Mental Health Center
  • Jenna Taylor, the executive director of Child Bridge, a faith-based organization that supports foster and adoptive families

“We’re in the midst of a public health crisis. We face an epidemic of addiction that has destroyed communities, torn apart families, and left thousands of children in foster care,” Gianforte said in a statement. “We need someone leading DPHHS who can address these serious challenges, who will bring greater accountability and transparency to the agency, and who will help lead Montana’s comeback.” 

Dept. of Corrections transition advisors 

On Nov. 12, Gianforte’s transition effort announced a third transition team, this one tasked with identifying candidates to serve as the next director of the Montana Department of Corrections, which manages the state prison system. 

Its members are:

  • Flathead County Commissioner Randy Brodehl 
  • Custer County Sheriff Tony Harbaugh
  • Jackie Jones, JD, an attorney and former advocate with the Montana County Attorneys Association
  • Steve Lavin, a Montana Highway Patrol officer and former state lawmaker
  • Former Cascade County District Court Judge Greg Pinski, JD
  • Granite County Commissioner Bill Slaughter, a former director of the Department of Corrections and former sheriff of Gallatin County
  • Broadwater County Attorney Cory Swanson, JD
  • Yellowstone County Attorney Scott Twito, JD
  • Melissa Zeiler, a probation administrator at Sidney Probation and Parole Administration

“Unfortunately, well-documented incidents of gross mismanagement and a lack of transparency and accountability have prevented the Department of Corrections from serving the people of Montana well,” Gianforte said in a statement. “It’s time to change how the DOC does business, from changing the culture to reducing recidivism to improving reentry.”

Gianforte previously announced that former Montana House Speaker Mike Milborn, currently chief of staff for Attorney General Tim Fox, would chair his transition effort. The governor-elect’s transition effort is also soliciting resumes from Montanans interested in serving in his administration via a website, servemontana.com.


This story will be updated as the Gianforte transition effort announces further advisory committees.



 

MainStreetMontana.com
Nov 6, 2020

On November 5th, 2020 at 1:15, Gallatin County Dispatch received a call of a wildland fire near the Porcupine Creek Wildlife Management Area, east of Highway 191 near mile marker 45. Due to wind and fuel conditions, the fire moved at a rapid pace north but has slowed down at this time. Warning notifications are being given for residences in the area. Approximately 400 acres of Porcupine Creek Wilderness Area have been involved. No structure loss is reported at this time.

Gallatin County Sheriff’s Office, Big Sky Fire, Bozeman Fire, Hyalite Fire, Forest Service, DNRC, Yellowstone Club Fire Department, and Montana Highway Patrol are all assisting with the fire.

Photo courtesy of Gallatin County Sheriff’s Office



 

 

State unemployment agencies are discovering errors in payments affecting hundreds of thousands of jobless Americans. Even when the agencies made the original error, they’re taking aggressive steps to get the money back.

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

Ahmad Ghabboun broke into a sweat. It was a late night in August and he had just discovered an unexpected $14,990 debt posted to the online portal he uses to access his account with Washington state’s unemployment agency. Since May, he had been receiving payments every week through the Pandemic Unemployment Assistance program, newly established by Congress to support freelancers like him. The benefits replaced the paycheck he could no longer earn after the pandemic had grounded his work delivering packages for Amazon Flex and driving the occasional shift for Uber.

Now, the agency, formally known as the Washington State Employment Security Department, was demanding he return every penny. The website provided no explanation.

Ghabboun, 31, and his wife, Isra, who was laid off from the beauty department of Nordstrom’s, relied on their combined unemployment benefits to cover their $1,800 rent, the $200 monthly payment on Ghabboun’s car, a 2014 Kia Optima, and various bills, not to mention the costs of preparing for their first child: Ghabboun’s wife was six months pregnant when he received the alert claiming he owed nearly $15,000.

 

The unemployment benefits the state expected him to return were long spent. At the time, he had enough in his checking account to cover only a month of expenses. “The debt is worse than having never been paid at all,” Ghabboun said.

At the start of the pandemic, many Americans were not getting the unemployment benefits they were due. Now, seven months into the economic crisis, another problem is emerging: In the chaotic rush to push out payments, some workers have been paid by mistake and states are insisting that the recipients return the money.

Incidences of unemployment-benefit overpayments are on the rise across the country, advocates at legal aid organizations say. National data is not yet available, but a few states that have released their numbers hint at the scale of the problem. In Texas, officials are seeking to recoup $214 million from 260,000 claimants. In Ohio, 1 in 5 PUA claimants — that is, around 108,000 people — received an overpayment between March and August, according to the state’s workforce department. In May, Virginia’s agency reported accidentally overpaying 35,000 PUA applicants.

There are many ways for the system to go awry, but usually it’s because the administrative agency, the applicant, the employer or some combination of them made a mistake somewhere in the Byzantine claims process. The majority of problems stem from unintentional errors, according to U.S. Department of Labor data, though intentional fraud is also a problem.

The creation of the PUA, set up quickly and primarily used by workers unfamiliar with the unemployment system, has only increased the potential for such mistakes. “The historic number of claims and complexities of the new federal programs has likely resulted in an equally historic number of overpayments being issued,” said Nick Demerice, Director of Public Affairs at the Washington State Employment Security Department. State unemployment systems across the country, Demerice added, have been “overwhelmed by this crisis, something that has had real and serious impacts for those who have had issues with their claims.”

State unemployment agencies often push hard to recoup overpayments, even when the agencies themselves are at fault. During the pandemic, Florida and Texas have stood out in local news accounts for their aggressive efforts to claw back funds. Some states subtract the money from future unemployment checks. Others garnish tax refunds or paychecks, put a lien on properties and bank accounts or even take claimants to court. Washington is one of 15 states that imposes interest on the debt, and in Arkansas such interest is 10% a year. An outstanding overpayment balance from a previous year may disqualify applicants from receiving any unemployment the next time they apply.

As the economy reels, many Americans have fewer means at their disposal to repay these unanticipated debts. “These are people acting in good faith who end up getting squeezed by the system that’s supposed to help them,” said Alix Gould-Werth, who researches unemployment as director of family economic security policy at the Washington Center for Equitable Growth. “The stress that people are under because of overpayments can be heart-wrenching.”

To compound the stress, the errors aren’t limited to the original decisions on eligibility. After approving, then denying, Ghabboun’s claim, the state of Washington confirmed in writing in October that Ghabboun is entitled to benefits going forward. But that solves only part of his problem. The state is still pursuing him for $14,990 in past benefits.


Until Seattle shut down this spring, Ghabboun’s life looked like it was on an upward trajectory. In 2011, he immigrated from Jordan to Everett, Washington, where some family and friends lived, and in 2015, he became a U.S. citizen. Ghabboun holds degrees in interior design and web design, but steady work as a designer has eluded him. So last year he joined the gig economy, only to see shifts for rideshare and delivery drivers in the Seattle area dry up when the pandemic struck.

Ghabboun applied for unemployment benefits in March, and he began receiving money in late May. This lag isn’t unusual. For weeks this spring, workers across the country waited to receive benefits, a problem that was exacerbated by the confusion states had in setting up the new PUA program. Once Ghabboun was approved, he began receiving $235 a week from PUA, plus an extra $600 weekly boost through the federal CARES Act.

 

Ghabboun and his wife, Isra. (Jovelle Tamayo, special to ProPublica)

Each Sunday, to verify his continued eligibility, Ghabboun checked off a series of yes-or-no questions on an online certification form. During the summer, some of the questions on that form were changed. Ghabboun speaks English fluently, but it’s his second language, and the phrasing of a new question about working from home temporarily tripped him up. He accidentally affirmed that he could telework, even though, as a driver, he obviously could not.

As soon as he was denied for that week’s unemployment benefits, Ghabboun realized his mistake, and he spoke with an agent at the unemployment office who promised to correct it. It seemed like the problem had been taken care of. Ghabboun even got a letter saying he was approved for benefits. (ProPublica examined these and other documents.)

Then the overpayment balance hit his account. The amount puzzled him. He could imagine owing $235, to cover the week he messed up, but not $14,990. “Even if I had been teleworking that week,” Ghabboun asked, “why would they backdate everything else I had received as an overpayment?”

In Ghabboun’s case, it appears that his initial error, which should have disqualified him for one week, triggered another error in the system. Never mind that the state had informed him in writing that he was eligible for benefits; now the system disqualified him from all previous payments.

After a quick search online, Ghabboun realized that his plight was shared by many workers. He signed up for a Facebook account, so he could join a group for Washington residents dealing with similar issues. This might have offered him some consolation, except that so many of the stories he saw on Facebook lacked happy endings. He couldn’t stop thinking about a woman in Washington who was paying $1,000 each month to the unemployment office, as though she were renting an additional apartment.

Demerice, of Washington state’s Employment Security Department, declined to comment on Ghabboun’s circumstances, citing privacy laws. “We are doing everything we can,” he said, “to get benefits to those who are eligible as quickly as possible.”


It’s no secret that unemployment systems in many states are outdated and hard to navigate by design. The idea is that the harder a system is to use, the fewer people will use it, and the less money a state will have to spend on benefits. It’s common for even native English speakers to misunderstand or mischaracterize something on their application, said Anne Paxton, an attorney at the Unemployment Law Project, a legal aid organization based in Washington state. More complicated systems are, unsurprisingly, more likely to produce inaccuracies, according to a study conducted for the U.S. Department of Labor.

But even unemployment agencies that have modernized their software, like Washington’s, have not necessarily fared better at avoiding improper payments. And when the newer systems break, there can be even less accountability when it comes to fixing them, according to Paxton. Washington updated its system in 2017, but the agency has continued to do a “disastrous job of managing claims,” Paxton said. Demerice defended the state, saying “the modernization of the computer system is one of the reasons Washington was able to be amongst the first states to begin paying CARES act claims.” He added, “The scale and scope of the crisis is what caused the delays, as our capacity could not keep up with the historic demand.”

In several states, terrifying errors have been caused by the outside vendors that agencies hire to modernize their systems, often at great expense. In September, more than 7,000 Louisiana residents received notices saying they’d been overpaid thousands of dollars in unemployment compensation. Jan Marie Olownia, a singer in New Orleans, told ProPublica she felt like she was going to have a panic attack when she first saw the letter, which demanded over $10,000 and threatened to file a lien on her property. “I was afraid my assets would be seized,” she said. “Getting a letter like this could send someone over the edge.” She soon learned that her overpayment had been caused by a programming snafu. “The error was on the part of our vendor and the vendor works for the agency, so we take responsibility for that,” said Ava Dejoie, secretary of the Louisiana Workforce Commission. Once the calculation was corrected, the state confirmed that Olownia and others didn’t owe anything.

The COVID-19 crisis also introduced new confusion about who qualifies for unemployment. People are entitled to benefits if they don’t work because of “specific, credible health concerns.” But many employers dispute that COVID-19 poses a credible concern and treat employees’ refusal to work as voluntary decisions to quit. Several hospitality workers told ProPublica that they had been receiving benefits until their employer appealed the decision; and now, they were expected to foot the overpayment bill.

 

Sometimes, the state simply appears to be flat wrong. In Raleigh, North Carolina, Equilla Hawkins applied for unemployment in April, started receiving benefits and then was hit with an overpayment notice in June. The state agency thinks she’s still on payroll, which mystifies her. She was laid off from her job at a recreation center last December and stopped doing hair as a freelancer in March. She’s now expected to pay back $300 a month. “I can’t pay that back and why should I have to if it’s no fault of my own?” she asked. “I don’t understand how they can spring this on someone.” Kerry McComber, a spokesperson for the state’s Division of Employment Security, said that the agency would look into Hawkins’ case but asserted that, in general, “agency error is the cause of a very small portion of these overpayments.”

The lengthy delays between applying for benefits and receiving them this year also mean it’s taking longer before agencies catch mistakes. By the time an overpayment is discovered, workers tend to owe more than they might have in previous years. Of the 25 workers ProPublica spoke with, over half had bills upward of $10,000, and several said they expect to set up payment plans that will last for years.


States are under pressure to retrieve misallocated benefits. The U.S. Labor Department measures the accuracy with which each state administers benefits, and if states fall below federal performance standards, they can be subject to financial penalties. “The federal office is a policeman trying to make sure that states are making a serious effort to identify and recover those overpayments,” said Wayne Vroman, a labor economist at the Urban Institute.

Federal data suggests that states make fewer errors than they used to — at least before the pandemic. That’s in part because, in the wake of the 2008 financial crisis, a federal law set new standards for agencies, including unemployment offices, to reduce overpayments. In 2010, 50% of the unemployment insurance benefits paid in Indiana and Louisiana were overpayments; by 2019, that rate had fallen below 10% for both states. The Improper Payments Elimination and Recovery Improvement Act also gave states the ability to intercept federal tax refunds and redirect them toward repayment plans.

 

But to the workers that these agencies are supposed to help, not getting the money one is legally entitled to represents a far graver threat than occasionally getting too much of it. Experts in the unemployment system are wary of what they view as the government’s disproportionate focus on overpayments rather than on underpayments. “Are we correcting for underpayments to the same extent that we are correcting for overpayments? Is it fair to collect an overpayment when there’s an administrative error on the part of the state and workers are doing the best they can to represent the situation accurately?” asked Gould-Werth of the Center for Equitable Growth. “It’s a hard needle to thread, but it’s most important that money gets into the hands of people who are eligible.”

The terms of PUA prohibit states from waiving overpayments. A House bill, introduced in late September, would change that, allowing states to waive the mandatory recoupment in cases where someone could not repay the funds “without severe hardship.” But the halting progress of stimulus talks in Congress has left all proposals to help workers and businesses at a standstill. Meanwhile, 8 million more Americans have fallen into poverty since May, according to new research from Columbia University.

For overpayments doled out through standard unemployment insurance, states have the freedom to waive repayment obligations. Vermont has waived over 25%, making it one of the most forgiving states, according to U.S. Department of Labor data.

By contrast, Washington state waived less than 3% of repayments last year. Demerice responded that waivers “are handled on a case-by-case basis and we work with claimants to develop reasonable payment plans wherever feasible.” The agency, he added, is “not issuing new garnishments or liens at this time” and has also requested discretion to waive PUA overpayments.

The current crisis, experts warn, is not the best time for states to be aggressive in their collection practices. Yet many states, already short of cash, have few options. “If they can get a million dollars back, that’s money they want right now,” said Austin Nichols, an economist with Abt Associates, a nonpartisan research firm. “But if the federal government was more forthcoming with grants to states, there would be less pressure for states to recoup the money.” He added that reclaiming overpayments undermines the purpose of unemployment insurance, which is to help families and pump money into the economy.


After learning he was thousands of dollars in debt in August, Ghabboun spent days calling Washington’s Employment Security Department. He took screenshots of his hold times: one hour, two hour, three hours. When he finally got through, he said, an agent told him that he had to appeal the decision. “Please resolve this issue soon as my pregnant wife and I are relying on this,” Ghabbon wrote in his appeal.

On Oct. 20, Ghabboun learned that his appeal had been adjudicated. He was told that the previous “issue no longer disqualifies you from getting benefits.”

That should have been good news. Except that the decision did not affect the overpayment balance. The online portal still showed him owing $14,990 and the state agency would collect that overpayment as his benefits resumed: Since September, all of Ghabboun’s unemployment benefits have been intercepted by the state and used to defray his debt. “They’re taking money out of their left pocket,” he said, “and putting it into their right pocket.”

 

“The debt is worse than having never been paid at all,” Ghabboun said. (Jovelle Tamayo, special to ProPublica)

Ghabboun and his wife are now relying on her benefits. Those payments, just under $400 a week, cover less than half of their monthly household expenses. To help with bills as November approaches, Ghabboun decided to list his car — which he uses to make his living — for sale.

He is trapped between two unappealing options. If he continues to stay home and avoid potential exposure to the coronavirus, the state will continue to pay down his debt (now at $10,958) but not put any cash in his pocket. But if he goes back to work, he’ll stop receiving unemployment benefits. In that scenario he’d be expected to cover the debt with part of his paycheck. Then again, if the Kia sells, making money as a driver won’t even be an option.

As his baby’s due date approaches, Ghabboun is down to $198 in his checking account. He was able to buy a used crib. He and his wife are getting in touch with a charitable agency that they hope can donate diapers, a stroller and a car seat. “It’s hard to predict what I should do next,” Ghabboun said. “All I know is some action needs to be taken as soon as possible.”



 

With allegations swirling in the race for superintendent of public instruction, public records requests for clarifying documents have been inexplicably delayed.

Superintendent of Public Instruction Elsie Arntzen addresses the House on Feb. 3, 2017, in the state Capitol. Credit: Thom Bridge / Helena Independent Record

Throughout Montana’s 2020 election season, political races up and down the ballot have spawned a host of claims and allegations against numerous candidates. The contest for superintendent of public instruction has been no exception, with opponents of Republican incumbent Elsie Arntzen’s re-election leveling accusations of an unprecedented loss of experienced and critical OPI staff during Arntzen’s first term. Efforts by Montana Free Press to examine the validity of that critique through public records have met with a delay that has Mike Meloy, a Helena attorney who specializes in freedom of information issues, at a loss.

“I can tell you I’m baffled by it,” Meloy said.

MTFP submitted a request to the Office of Public Instruction Sept. 25 asking for copies of internal vacant position reports compiled by the office since Jan. 1, 2012. These reports document all administrative vacancies at OPI as of the date compiled, as well as the date that each position became vacant. In an email response to the request on Oct. 9, OPI’s legal division stated that the records would take five hours to collect, assessed a fee of $151.90, and assured that the records could be delivered “in a reasonable amount of time.” MTFP confirmed Oct. 12 that it would pay the associated cost. OPI later informed MTFP by phone that payment would not be necessary until after the records were collected and ready for delivery, and indicated that the record-collection process had begun on Oct. 13.

On Oct. 21, OPI communications director Dylan Klapmeier informed MTFP by email that Arntzen and the office’s legal division would begin reviewing those records “for personally identifiable information” that week. Arntzen phoned MTFP directly that same afternoon to guarantee that the review process had begun. She declined to give MTFP a timeline for when the records would be delivered, and when pressed, said she could not promise delivery by the end of that week. 

Arntzen also stated during the call that once OPI’s legal team completed its review, the records would pass to Arntzen for final review and approval for release. As of Oct. 27, MTFP had not received the requested records nor been given any indication when they would be made available. OPI stated it would answer email questions this morning seeking additional information for this story, but had not responded by early afternoon.

MTFP’s records request is part of an effort to fact-check repeated claims regarding Arntzen’s leadership of OPI leveled during the 2020 campaign season. Conversations both on and off the record between MTFP and past OPI staff have been colored with claims of veteran employees leaving posts and positions remaining vacant for extended periods of time. Arntzen’s Democratic challenger, Melissa Romano, has publicly and frequently raised the question of high turnover at OPI, and so has the Montana Federation of Public Employees. Retired OPI accreditation program director Patty Muir told MTFP that staff departures and vacancies in her former division have resulted in difficulties executing OPI’s accreditation responsibilities in an efficient and timely fashion. On Oct. 18, six former OPI employees penned an op-ed characterizing the situation as an “exodus of critical staff.” 

“Usually the person that’s making the decision is the person that’s compiling the information, not the head of the agency. God, if you got the head of the agency involved in every records request, the head of the agency wouldn’t be doing anything else.”

MONTANA FREEDOM OF INFORMATION HOTLINE ATTORNEY MIKE MELOY

MTFP is not alone in experiencing difficulty obtaining public records from OPI this year. The Montana Democratic Party submitted a request for public records related to staff turnover in May and, according to MDP Executive Director Sandi Luckey, was assessed a fee of $10,000. In response, the party narrowed the scope of its request and on Aug. 26 hand-delivered a payment of approximately $2,000 to OPI. Luckey told MTFP that OPI estimated portions of its records request would take, at maximum, two weeks to compile. Two months later, she continued, the party still does not have any portion of the information it requested.

“I mean, some information takes weeks to receive, some information takes months to receive,” Luckey added. “It depends on the information you’re asking. Often that makes some degree of sense, but for a public agency under Elsie’s leadership to take $2,000 from any member of the public for public information and then fail to produce it for two months, it’s outrageous.”

Montana law explicitly states that every person has “a right to examine and obtain a copy of any public information of the state,” and Article II of the Montana Constitution states that no person will be deprived of that right “except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.”

Meloy has extensive experience helping the media and the public navigate access to government records and meetings guaranteed by those provisions, and is the retained attorney for Montana’s Freedom of Information Hotline. In 2018 and 2019, he assisted with 438 requests — 245 from media outlets and 193 from members of the public. Most of the time, he said, “we get pretty good compliance,” though on occasion a government entity will not want to disclose documents, “and who knows why.” The motivation behind any request is irrelevant, Meloy added. “Every citizen in Montana, every person in Montana, every person who wants access to a governmental entity has a right to it, has a right to documents and has a right to observe their meetings.”

Meloy is familiar with the details of the Montana Democratic Party’s request to OPI, and MTFP apprised him of the particulars of its own request. His impression, based on the five hours of staff time OPI said it would take to compile the records sought by MTFP, was that the request should have been met as soon as an OPI attorney had a chance to look over the documents. Informed of Arntzen’s role in reviewing those records and granting final approval for their release, he indicated that level of executive involvement is uncharacteristic of requests he’s assisted in the past, which have primarily fallen to the individual custodian of the records being sought.

“As far as I know, it’s the first time it’s happened, because usually it’s an administrative issue, and usually the person that’s making the decision is the person that’s compiling the information, not the head of the agency,” Meloy said. “God, if you got the head of the agency involved in every records request, the head of the agency wouldn’t be doing anything else.”

As for what avenues remain available for MTFP and others seeking records from OPI, Meloy could offer only two: Wait for the records to be released, or seek a court order demanding their release. The latter option, he said, often proves a deterrent to parties seeking public information, as the costs of taking a case to court are prohibitive for many members of the general public. Litigation also takes time, and there’s no guarantee regarding its outcome. Meloy referenced author Jon Kraukauer’s years-long legal battle to get records from the Montana University System — a battle that ultimately ended last February when the U.S. Supreme Court declined to hear his appeal. 

In that case, the University System had argued that the records sought by Krakauer were not public. OPI has given no indication that it disputes the records sought by MTFP are public. The issue in MTFP’s case, as well as that of the Montana Democratic Party, is of records not being delivered in a “reasonable amount of time.” Meloy finds such delays concerning.

“A delay in getting access to a document is almost as bad as saying no, because most of the requests are for a specific purpose that has a time component to it,” Meloy said.

With Election Day only a week away, Luckey indicated that time is indeed a factor in the Montana Democratic Party’s request. She said she’d been given no word on when to expect the records.

“They gave us estimates of different portions of the information. Some of the information would only take a couple hours to compile, some of it would take it a couple weeks,” Luckey said. “All of those time frames have long since passed. The office, Elsie Arntzen, has accepted our money and not produced her commitment for the money we paid.”

 
 

 

This denizen of the forest resides at Tizer Gardens, a nursery and strolling garden near Helena, Mont. 

MainStreetMontana.com
Oct. 1, 2020

 



 

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