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.”
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.”