Blair Miller

(Daily Montanan) Attorneys for a Helena law firm have asked for summary judgment in a lawsuit against Montana Gov. Greg Gianforte and Department of Public Health and Human Services Director Charlie Brereton in an effort to compel them to produce records the firm requested but have been denied over claims of executive and attorney-client privilege.

Upper Seven Law asked Lewis and Clark County District Court Judge Christopher Abbott to grant its request in a filing Thursday, which came three months after the firm first sued Gianforte and Brereton in an attempt to obtain the records.

“The governor believes that holding the highest office in the state insulates him from the Montana Constitution’s transparency provision,” said Upper Seven Law Executive Director Rylee Sommers-Flanagan. “But the power of this office is precisely what the framers contemplated when they guaranteed Montanans a right to know. The governor’s policy decisions go to the heart of his service to Montana.”

The law firm in August asked the Governor’s Office and DPHHS for correspondence involving Gianforte’s General Counsel Anita Milanovich that referenced Senate Bill 458, a bill Gianforte signed that defines Montanans’ sexes as either male or female only, or SF-424 forms, which some state departments are required to fill out when applying for federal grants.

The form requires applicants to attest they will follow federal laws and standards, including anti-discrimination laws.

The firm specifically asked that the records custodian exclude communications directly from Milanovich to Gianforte and didn’t ask for emails exchanged with Brereton to try to avoid attorney-client privilege claims, according to court filings.

Upper Seven Law was looking for the communications because the firm was preparing to possibly sue over SB 458 (it did so in October) and had learned from social media posts that Milanovich had possibly “instructed Montana agencies to refuse to assure compliance with federal nondiscrimination law,” according to the lawsuit.

But the legal counsel for the Office of Public Information Requests denied the firm’s request, saying executive privilege had been asserted and that there were possibly documents that would be covered by attorney-client privilege. The governor is appealing a 2022 decision out of Lewis and Clark County District Court in which a judge ordered Gianforte to release records requested about bill tracking in the 2021 legislative session.

“We are aware that executive privilege is the subject of litigation and will reconsider this response if necessary on the final resolution with the Montana Supreme Court,” Office of Public Information Requests legal counsel Rebecca Narmore wrote, according to exhibits contained in the lawsuit.

DPHHS also denied the request on claims of executive and attorney-client privilege.

When the firm sued in October, it said the Governor’s Office and DPHHS had not provided any redacted documents or privilege logs — a list of records it considers private — and there was thus no way they could know if the documents were truly privileged or being withheld illegally on executive privilege claims the firm says do not exist under Montana law.

Three months later, the firm says nothing has changed, and Gianforte and Brereton continue to violate the public’s right to know under the state constitution.

The firm asked Judge Abbott to order they provide the court with the documents requested in camera so he can review them and see if any are truly covered under attorney-client privilege. It also asked him to order the two to produce a privilege log for any privileged documents and to provide any that are not covered to the firm.

In the request for summary judgment this week, the firm again asserted there is no executive privilege in Montana, that attorney-client privilege only shields legal advice between an attorney and their client and not all communications between them, and that even if there are privileged records, Gianforte and Brereton’s offices need to provide a privilege log or redacted responsive records under the law.

The request says the 1972 Constitutional framers did not contemplate any sort of executive privilege and the same court has recently upheld that notion, saying if there was executive privilege, it would be unclear whether any documents involving the Governor’s Office could be subject to the right to know.

“While the attorney-client privilege could theoretically protect a responsive email or a portion of the contents of the withheld communications, that possibility does not justify Defendants’ outright refusal to respond to Upper Seven’s requests and concomitant failure to produce a privilege log and redacted documents,” the filing says. “Twice in the last year, this Court has ordered that the executive branch must produce privilege logs in response to right to know requests.”

It also notes that lawmakers passed a bill in the 2023 session that further clarified how public information requests must be fulfilled, including procedures for the executive branch.

“Without a privilege log — or even a recognition that attorney-client privilege is distinct from the rejected executive privilege — it is impossible to know whether any of the requested documents may be shielded from disclosure,” Upper Seven Law attorneys wrote in Thursday’s request. “It is exceedingly unlikely that the requested documents are privileged.”

The law firm said that state agencies’ decisions not to comply with federal antidiscrimination law would also be a political decision and not legal advice, and that the right to know as it applies to the executive branch would be gutted if everything subject to potential future legal action triggered attorney-client privilege.

“The governor and DPHHS cannot withhold documents merely because they were produced by lawyers or discuss the law,” the filing says. “Here, the purpose of any guidance regarding SF-424 forms was to further the executive branch’s policies on discrimination — not to provide privileged legal advice.”

DPHHS and the Governor’s Office have said regarding the case that it does not comment on pending litigation.

In addition to the request that Abbott order a review of the documents and their release, the law firm has asked for a hearing in the event Abbott rules in their favor to ask for attorney’s fees.

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