Rating:

5.0 (3 votes)

For the second week in a row, a District Court Judge has ruled against Southern Montana Electric's efforts to keep documents sealed.

SME filed a motion for stay and a motion for injunction to keep the documents sealed, but Judge Wayne Phillips of Lewistown denied both motions.

In his decision, Judge Phillips stated that the court spent more than 12 hours wading through one-third of the documents and was only able to find six items that could be deemed privileged.

He went on to say that SME has not demonstrated why the rest of the documents should be reviewed.

Shortly after the judge's decision, members of the Montana Environmental Information Center visited city offices to get their first look at the documents.

Jerry Taylor of MEIC said, "You just never know what you're going to find when you start reading this material. It might be just a couple paragraphs that leads us on a trail to financial records for instance."

Taylor and other members say it could take weeks before they find anything of substance in the documents. They first took action to see the documents three years ago.

(First report, 1:54 p.m.) A judge ordered on Monday that Southern Montana Electric (SME) must release documents pertaining to the Highwood Generating Station.

SME officials had filed a request for a stay of a similar court order last week.

Many area residents, including members of the Montana Environmental Information Council, have been seeking the release of the documents for several years.

In the picture above, citizens begin reviewing some of the formerly sealed documents.

Here is the complete text of the judge's order:

MONTANA EIGHTH JUDICIAL DISTRICT COURT, CASCADE COUNTY

________________________________________________ No. CDV-07-614

MONTANA ENVIRONMENTAL ) Judge E. Wayne Phillips

INFORMATION CENTER, )

)

Plaintiff, )

)

vs. )

)

CITY OF GREAT FALLS and ) ORDER ON MOTION

SOUTHERN MONTANA ELECTRIC ) FOR STAY OR INJUNCTION

GENERATION AND TRANSMISSION )

COOPERATIVE, INC., )

)

Defendants, )

)

MONTANA NEWSPAPER )

ASSOCIATION, )

)

Intervenor. )

____________________________________________________________

By motion, Defendant and Appellant seeks a stay or injunction of this Court’s March 8, 2010 Order on Motion for Summary Judgment which released all but six documents for public review. Defendant/Appellant claims that “[i]f the stay or injunction is not granted, irreparable and prejudicial harm will result to Southern Montana.” Memorandum, p. 2 (emphasis original).

The Montana Rules of Appellate Procedure authorize issuance of either a stay or an injunction. M. R. App. P., Rule 22. That Rule further provides that the “. . . court must promptly enter a written order on a motion filed under this rule and include in findings of fact and conclusions of law, or in a supporting rationale, the relevant facts and legal authority on which the district court’s order is based.” M. R. App. P. 22(1)(d). It should be noted that no relevant criteria for evaluating a stay request is contained in the Rule or in statute. An injunction may be granted if there is a showing of irreparable injury. Curran v. Dept. of Highways, 258 Mont. 105, 852 P.2d 544 (1993). Here, the Court has not set a hearing to receive evidence on irreparable harm for two reasons. First, it is not granting the motion, § 27-19-301(2), MCA (2009) and, second, the Defendant cannot show irreparable harm, as will be discussed more fully below.

As noted by this Court’s March 8, 2010 Order, Defendant failed to comply with a specific Court Order in its submission of documents for review for trade secrets, attorney-client privilege, etc., Order, p. 2 citing July 28, 2009 Order of the Court. It also failed to meet the high threshold burden for restriction of public review of public documents, Great Falls Trib. v. PSC, 2003 MT 359, ¶ 57, 319 Mont. 38, 82 P.3d 876, Order, p. 14.

There is an important nexus between these twin failures and the Court’s actual findings regarding the documents for which “privilege” was claimed. Those findings include:

1. Some documents had already been released for public review, Order, p. 3.

2. Defendant played games with its designation of “trade secrets” which required release of many documents, Order, p. 4.

3. Political commentary and hyperbole claimed as trade secret, Order, p. 9.

4. Tour memos “detailing extraordinarily privileged and trade secret material such as phone numbers for making room reservations, dinner plans, and flight itinerary”, Order, p. 11.

5. A “Life Conceptualizers” memo claimed as a trade secret and attorney-client privilege but actually a “pop-Psychology Today take on individual typologies.” Order, p. 11.

6. Internet accessible information claimed as trade secret. Order, p. 10.

The substantive legal failures and these patently absurd claims of privilege demonstrate why Defendant cannot claim irreparable harm. As support for that holding, this Court reiterates that it spent over 12 hours of review to find six privileged documents out of hundreds upon hundreds upon hundreds. Those other hundreds are more than adequately represented by the individual documents cited in the March 8^th Order and above. Order, pp. 13-14. Furthermore, as this Court held above, the Defendant has failed miserably to demonstrate why the Court should “spend the 24 some odd hours needed to wade through the remaining documents just to find those few which might meet the privilege.” Order, p. 14.

The Defendant has not succeeded in scaling even one small foothill let alone surmounting the high constitutional peak of the public’s right to view the workings of a government, which Lincoln so admirably described as, of the people, by the people and for the people. The Motion for Stay is Denied. The Motion for Injunction is Denied.

The Clerk of Court is directed to file this Order On Motion For Stay Or Injunction and provide copies to counsel of record.

DATED this 15^th day of March 2010.

_______ DISTRICT COURT JUDGE

Hon. E. Wayne Phillips

P. O. Box 1124

Lewistown, Montana 59457

Telephone: (406) 535-8028

Facsimile: (406) 535-6076

c: David K. W. Wilson, Jr., Esq.

c: Peter Michael Meloy, Esq.

c: Chad G. Parker, Esq.

c: Mary Jaraczeski, Esq.

c: Robert Griffin, Esq.