The recent Montana Supreme Court ruling in MEIC v. Office of the Governor has sparked conversation— not so much the case itself but the varying, passionate, and accusatory opinions given by the Supreme Court with their decision to vacate and remand this case. Each justice approached the case from a different legal perspective, even though MCA 2-6-1006(3)(a)—which requires acknowledgment of records requests within five business days—has set a clear standard. In law, responsibility often begins with the first misstep, a principle echoed in command responsibility, where those in authority are expected to prevent or correct failures within their oversight. Viewed this way, the Governor’s Office, like a commander with responsibility for their troops, holds structural responsibility for ensuring records requests are properly handled. The initial lapse—the failure to acknowledge within five days—became the point from which broader constitutional questions and litigation followed
The Case
November 10, 2021 MEIC filed a lawsuit against the DEQ and Director (Ksanka Elders Advisory Comm. v. Dorrington). Later that same month they made a public records request to the Governor’s Office for much of the same information. Per court documents they said it was to understand the “Governor’s Office’s role in environmental regulation and mining” and assist their lobbying, goals, and objectives.
The Problem
Despite the requirement to acknowledge requests within five business days under MCA 2-6-1006(3a), the initial public records request received no response. Two months later, MEIC sent a follow-up email and finally received an acknowledgment. Subsequent emails brought promises of “soon” but still no documents. It was four months after the initial request that MEIC sued for the public records information.
A month after the lawsuit was initiated, the Governor’s Office refused to provide any of the requested records, asserting a “pending litigation exception” tied to the Ksanka Elders case. Under this rationale, public disclosure rules do not apply if the information could be used to bypass discovery in ongoing litigation.
The Result
MEIC prevailed in forcing disclosure of records the Governor’s Office had withheld. Yet when MEIC requested attorney fees per MCA 27-26-402 and MCA 2-6-1009(4), the District Court denied the motion, interpreting “may be awarded” as allowing discretion to refuse attorney fees because records were eventually produced (only after the writ was issued), and, because it was assumed MEIC could have obtained many of the documents requested from the public records of a previous court case (Ksanka Elders).
MEIC appealed.
Supreme Court Ruling
On appeal, the Montana Supreme Court reversed the District Court’s decision by a 4–3 vote. Writing for the majority, Justice Laurie McKinnon explained that forcing disclosure served the public by ensuring government transparency and accountability and that the discretionary language cannot mean that courts should routinely deny fees in right-to-know cases, because doing so would discourage enforcement of the guaranteed right. In other words, making fee awards optional for public information litigation would discourage future requests for public information. It’s clear that Justice McKinnon approached this case from the perspective that citizens have a fundamental right to access public records without it being cost prohibitive.
Justice Shea, joining the majority, offered several observations, and two points in particular stood out to me. First, he points out it is the responsibility of the Legislature to rewrite the laws if they don’t like the court’s interpretation.
Second, in deciphering the District Court’s reasoning regarding the actions-or lack thereof- by the Governor’s Office, Justice Shea observed that the court lacked sufficient information about the length of time needed to fulfill similar requests or the workload and capacity of the Governor’s office to assess whether this was a ‘timely’ response. He also notes that in doing so, the District Court applied its own presumption in favor of the State.
Judge Rice’s Dissent: Deference to Legislative Discretion
Justice Jim Rice’s dissent warned that substituting policy considerations for plain statutory text undermines legislative intent. Rice argued that “may be awarded” reflects the Legislature’s decision to balance public‐records enforcement with budgetary concerns, ensuring that fee awards remain exceptional and not automatic. He insisted that the majority “injected policy preferences into what should be neutral legal analysis” and cautioned that presuming fees for every successful requester usurps the Legislature’s role.
Rice’s view underscores that if the Legislature had intended mandatory fee awards, it would have used “shall” instead of “may.” By preserving “may be awarded,” lawmakers signaled that courts should consider factors—such as whether a requester forced production solely by litigation or whether the agency’s delay was excusable—before granting fees.
Speculation: Why Choose “May” Over “Shall”
Montana’s constitutional right to know (Art. II, § 9) is unequivocal: “The right of individual citizens to examine documents is guaranteed.” Yet when the Legislature implemented that guarantee in MCA 2-6-1009(4), it chose the language “may be awarded” rather than “shall be awarded” for attorney fee awards. That small word shift introduces discretion—and speculation—into an otherwise clear constitutional mandate. Why?
1. Budgetary and Resource Concerns.
Perhaps the choice was simply fiscal: requiring fee awards in every case could have exposed public agencies, and ultimately taxpayers, to heavy costs—especially in high-volume or complex disputes. Discretion gives judges flexibility to temper awards where agencies acted in good faith but fell short procedurally. Yet this raises a deeper question: if the right to know is a constitutional guarantee, should its protection hinge on budgetary caution? If not through monetary responsibility, what other mechanisms ensure accountability?
2. Judicial Deference to Agencies.
Another possibility is that lawmakers wanted to preserve space for courts to weigh the realities of government work. Records offices face uneven staffing, unexpected surges in requests, or complicated legal reviews. By writing “may,” did the Legislature signal that judges should consider these pressures before punishing agencies—effectively extending judicial grace? Does such deference risk watering down a citizen’s right to timely access without resorting to litigation?
3. Political Calculus.
It’s also possible that the softer “may” reflects political compromise. Mandating fee awards could have been seen as too aggressive or punitive during legislative negotiations, raising alarms among agencies and lawmakers wary of potential backlash. “May” becomes the middle ground: strong enough to signal that citizens can recover costs, but flexible enough to reassure government offices that not every loss means an automatic payout.
Excuses vs. Citizens’ Rights?
Montanans are guaranteed a constitutional right to know, yet public records requests are too often delayed, sidestepped, or completely ignored. With attorney fee awards left to judicial discretion, agencies have little incentive to comply. Excuses like “voluminous records,” “staff shortages,” or “budget constraints” may be genuine, but they cannot weaken the Constitution’s clear command that “the right to examine documents is guaranteed.” By choosing “may” instead of “shall,” the Legislature has shifted the cost of enforcement onto citizens, creating a system where delay becomes strategy and agencies can wait out both public attention and private resources.
Conclusion: Rights You Can’t Afford
As MEIC’s journey illustrates, winning a right‐to‐know case is only half the battle; securing fees under “may be awarded” remains uncertain. Until the law is amended to require fee awards—or to impose some other meaningful accountability— excuses will persist, news cycles will pass, and citizens will continue to ultimately bear the burden of enforcing their own rights-the rights our government and elected leaders have sworn to protect.