98-216
No. 98-216
IN THE SUPREME COURT OF THE STATE OF MONTANA
1998 MT 133
GREAT FALLS TRIBUNE COMPANY, INC.,
Petitioner and Appellant,
v.
RICK DAY, and THE STATE OF MONTANA,
DEPARTMENT OF CORRECTIONS,
Respondents and Cross-Appellants.
ORIGINAL PROCEEDING
COUNSEL OF RECORD:
For Appellant:
Peter Michael Meloy (argued); Meloy & Morrison;
Helena, Montana
For Respondent:
Diana P. Leibinger-Koch (argued), Matthew A. Robertson, and
David L. Ohler; Montana Department of Corrections;
Helena, Montana
For Amicus:
Dal Smilie, Chief Legal Counsel; Montana Department of
Administration; Helena, Montana
Heard: May 26, 1998
Submitted: May 26, 1998
Decided: May 29, 1998
Filed:
__________________________________________
Clerk
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Justice Terry N. Trieweiler delivered the opinion of the Court.
¶1 The petitioner, Great Falls Tribune Company, Inc., filed a petition in
the District Court for the First Judicial District in Lewis and Clark County in
which it sought an order restraining the respondent, Rick Day, as Director of
the Department of Corrections for the State of Montana, from excluding
members of the public from meetings of the Department's Private Prison
Screening and Evaluation Committee. The District Court held that neither the
petitioner nor other members of the public had a right to observe the
deliberations of the committee during the negotiation phase of its work, but
that once its negotiations had been completed, the process by which it arrives
at its conclusions must be open to public observation. Both the Tribune and
the Department of Corrections appeal from the District Court's order. We
reverse that part of the District Court order which excludes the petitioner and
other members of the public from the committee's deliberations.
¶2 The issue on appeal is whether § 18-4-304, MCA, as applied by the
Director of the Department of Corrections to the facts in this case, violates
Article II, Section 9, of the Montana Constitution, which guarantees to the
people of Montana the right to examine documents and observe deliberations
of all public bodies or agencies of state government.
FACTUAL BACKGROUND
¶3 In 1997, the Montana Legislature enacted §§ 53-30-601 to -611, MCA,
which authorize the Department of Corrections to contract for the private
operation of correctional facilities in Montana. Section 53-30-605, MCA,
requires that, prior to contracting for services with a private correctional
facility, the Department must publish a request for proposals which "must
include a description of the long-range correctional needs, objectives, and
goals of the department and the state." That statute also provides a detailed list
of the information that each proposal must include.
¶4 On December 1, 1997, the Department published a Request for
Proposal (RFP) for the development and operation of a 500-bed private, adult
male prison facility pursuant to § 18-4-304, MCA, §§ 53-30-601 to -611,
MCA, and § 2.5.602, ARM. The RFP also stated, at paragraph 1.1.4.2, that
"[p]rior to award of contract, proposal information submitted in response to
this RFP will be disclosed only to the persons participating in the evaluation
or contracting process. The proposals will not be publicly opened." This
provision of the RFP reflected the requirements of § 18-4-304(4), MCA, and
§ 2.5.602, ARM. Section 18-4-304(4), MCA, is part of the Montana
Procurement Act which was enacted by the Legislature in 1983. Section 18-4-302,
MCA, provides that all state contracts for services must be awarded by
a selection process provided for in the Procurement Act. Section 18-4-303,
MCA, provides for awards following competitive sealed bidding, and § 18-4-304,
MCA, provides for awards following competitive sealed proposals.
Subparagraph (4) of that statute provides as follows:
Proposals must be opened so as to avoid disclosure of contents to
competing offerors during the process of negotiation. A register of proposals
must be prepared in accordance with rules adopted by the department and must
be open for public inspection after contract award. After the contract is
executed, proposal documents may be inspected by the public, subject to the
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limitations of the Uniform Trade Secrets Act, Title 30, chapter 14, part 4.
Section 18-4-304(4), MCA.
¶5 In response to the Department's RFP, five private companies submitted proposals
for
construction of a private correctional facility in Montana. Rick Day, Director of
the
Department of Corrections, appointed a twenty-one-member committee to review the
proposals, evaluate them, and make recommendations to him regarding which company to
select.
¶6 At the committee's orientation meeting on March 16, 1998, Day instructed the
committee that:
Our goal is to select a new member of our partnership, a private prison
contractor, through a neutral and objective process -- a process which provides
the best opportunity for Montana to obtain the most effective, professional,
public safety-conscious, efficient prison service and which also provides
evidence of strong local support. . . .
. . . .
This brings us to why we are here today. Each of you have been
assigned to this extremely important committee. Your task will be to critically
evaluate each submission. While performing your other jobs some of you
must be prepared to make this assignment a three-or four-month priority.
. . . .
State law requires that proposals be opened in a manner that avoids
disclosure of contents to competing offerors, and prohibits the discussion of
proposals which might reveal information to competing offerors (§ 18-4-304,
MCA). What this means is that your work, evaluation, scoring and discussion
is at this time confidential. Consequently, you cannot discuss this information
with parties outside of this committee. In fact, if you are contacted you must
advise the party that you cannot discuss the proposal information and you must
immediately report this contact and any contact which may potentially
influence the process to the Director's Office. Although sometimes difficult
to understand, this process is designed by law and recognizes the proposers'
legitimate expectation of privacy in their proposals. Once the contract is
signed the proposals and related documents are open to public inspection.
. . . The work you do will have a lasting effect on Montana corrections
well into the next century.
(Emphasis added.)
¶7 The Great Falls Tribune, Inc., is a daily newspaper circulated throughout the
state of
Montana with its headquarters in Great Falls. On April 3, 1998, it petitioned the
District
Court to restrain Day and the Department's committee from holding its meetings in
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private
and to require that all papers associated with the meetings be open to public
inspection. The
Tribune alleged that Day's directive to the committee that its work be done
privately violates
its rights guaranteed by Article II, Section 9, of the Montana Constitution, by
denying it the
right to observe deliberations and examine documents of a public body.
¶8 In response, the Department contended that the public's right to observe the
committee's deliberations and review its records, including proposals, was
outweighed by the
five vendors' rights to privacy in the information they had submitted. The
Department
contended that the proposals submitted by the five vendors included trade secrets and
proprietary information and that the committee could not evaluate those proposals in
public
without revealing that information.
¶9 Following a hearing at which a reporter for the Tribune, two state officials,
and three
representatives from the private vendors testified, the District Court held that
while the five
vendors had no reasonable expectation of privacy after a contract has been awarded,
they do
have a reasonable expectation that their proposals will be kept confidential during
the
negotiation process. Without further analysis of the vendors' privacy interest, as
opposed to
the public's interest in open government, the District Court then concluded that
during the
negotiation phase of the committee's work the committee may do its work privately
and deny
the public access to the vendors' proposals. The District Court also concluded,
however, that
once the negotiations among the Department and the five vendors have been completed,
the
Department must open that part of the committee's deliberations which relate to its
analysis
of the proposals to public observation and make the vendors' proposals available for
public
inspection, subject to a trade secret exception. The District Court held that to
the extent
§ 18-4-304, MCA, prohibited public observation or disclosure after negotiations have
come
to an end, it is unconstitutional.
¶10 The Tribune appeals that part of the District Court's order which allows the
Department to conduct negotiations in private. The Department appeals that part of
the
District Court's order which opened its deliberations to public inspection prior to
the time
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that a contract is awarded.
DISCUSSION
¶11 Does § 18-4-304, MCA, as applied by the Director of the Department of
Corrections
to the facts in this case, violate Article II, Section 9, of the Montana
Constitution, which
guarantees to the people of Montana the right to examine documents and observe
deliberations of all public bodies or agencies of state government?
¶12 Whether § 18-4-304, MCA, as applied to the facts in this case, is
constitutional is a
question of law. We review a district court's conclusion of law to determine
whether it is
correct. See State v. Small (1996), 279 Mont. 113, 116, 926 P.2d 1376, 1378.
¶13 Furthermore,
[t]he constitutionality of a legislative enactment is prima facie presumed, and
every intendment in its favor will be presumed, unless its unconstitutionality
appears beyond a reasonable doubt. State ex rel. Mills v. Dixon (1923), 66
Mont. 76, 84, 213 P. 227, 229. The question of constitutionality is not
whether it is possible to condemn, but whether it is possible to uphold the
legislative action which will not be declared invalid unless it conflicts with
the
constitution, in the judgment of the court, beyond a reasonable doubt.
Fallon County v. State (1988), 231 Mont. 443, 445-46, 753 P.2d 338, 339-40.
¶14 The Tribune's petition is based on its asserted right to examine the documents
and
observe the deliberations of public bodies. Article II, Section 9, of the Montana
Constitution,provides:
No person shall be deprived of the right to examine documents or to
observe the deliberations of all public bodies or agencies of state government
and its subdivisions, except in cases in which the demand of individual privacy
clearly exceeds the merits of public disclosure.
¶15 The Department's objection to the Tribune's inspection of its private prison
proposals
and to the observation of its committee meetings is based on the aforementioned
provision
in § 18-4-304, MCA, which provides that the contents of proposals are not to be
disclosed
during the negotiation process, but only after a contract has been executed. The
Department
also contends that the proposals include trade secrets and proprietary information
in which
the vendors who submitted the proposals have an actual and reasonable expectation of
privacy, and that on balance, that privacy interest is greater than the public's
interest
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in the inspection of those documents.
¶16 Although this controversy was submitted to the District Court on the assumption
that
the Department's committee is a public body or agency, and on the further assumption
that
the proposals are documents of a public body, the Department has argued, for the
first time
on appeal, that its committee may, in fact, not be a public body to which Article
II, Section 9,
applies. While normally we would not consider an argument made for the first time on
appeal, the logical first step in our analysis is to determine whether, in fact,
this claim
involves a public body or agency to which Article II, Section 9, would apply. For
that
purpose, we need look no further than the definitions provided by the Montana
Procurement
Act, and our recent decision in Common Cause v. Statutory Committee (1994), 263 Mont.
324, 868 P.2d 604. Article II, Section 9, applies, by its terms, to agencies of
state
government. "Governmental body" is defined at § 18-4-123(11), MCA, as "a
department . . .
committee . . . or other entity, instrumentality, or official of the executive,
legislative,
or judicial branch of this state . . . ."
¶17 Pursuant to § 2-15-104, MCA, the Department is part of the executive branch of
government. The screening and evaluation committee is, therefore, a committee of the
executive branch of government, and a "governmental body" for purposes of
procurement.
Since the committee has been defined by the Legislature as a "governmental body," it
necessarily follows that it is an agency of state government to which Article II,
Section 9,
applies. This conclusion is consistent with our recent decision in Common Cause,
where we
held that the committee established to recommend candidates for the office of
Commissioner
of Political Practices is a "public or governmental body." We analogized to
decisional law
from the state of Michigan which concluded that an advisory committee appointed to
assist
in the selection of a university president was a "public body" for purposes of that
state's open meetings act. We stated:
Moreover, in a factually similar case, the Michigan Supreme Court
determined that a selection committee and its advisory subcommittees
organized to select a university president were "public bodies" under
Michigan's Open Meetings Act. Booth Newspapers v. University of Michigan
(Mich. 1993), 507 N.W.2d 422, 429. The Michigan definition of "public
body" focused on the entity's ability to exercise governmental or proprietary
authority. The Michigan Supreme Court held that the selection of a public
university president constituted the exercise of governmental authority
regardless of whether the authority was exercised by the nominating
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committee, the board or even the advisory subcommittees. Booth, 507 N.W.2d
at 429. The same reasoning applies to the selection of the Commissioner in
Montana. The "public or governmental" nature of the Committee's purpose
is obvious. Further, the Committee is created and organized by state statute
to perform its governmental function.
Common Cause, 263 Mont. at 331, 868 P.2d at 608 (emphasis added).
¶18 The Department contends that Common Cause is distinguishable from this case on
the
basis that the committee with which that case was concerned was established by
statute and
that the Department's committee was not established in that fashion. However, the
Department misses the point of the Common Cause decision. That decision was not
based
upon the statutory authority for the committee. That decision was based on the
"public or
governmental" nature of the committee's responsibilities. We conclude that the
committee
established by the Department to screen proposals for the construction of a private
prison
also involves governmental responsibility, and that based on not only the definition
from the
Montana Procurement Act, but our reasoning in Common Cause, the committee does
constitute a public body and an agency of state government.
¶19 Furthermore, we conclude that the proposals submitted by private vendors to the
Department's screening and evaluation committee are documents of a public body or
agency
within the meaning of Article II, Section 9. Section 18-4-126(1), MCA (also part of
the
Montana Procurement Act), provides that "[p]rocurement information is a public
writing and
must be available to the public as provided in 2-6-102 and 18-4-304." Section 2-6-
102
provides that every citizen has a right to inspect public writings of the state.
¶20 Having concluded that the Department's screening and evaluation committee is a
public body and that the proposals which were submitted to it are public writings to
which
Article II, Section 9, is applicable, we must next consider whether there is some
exception
to the public's right to observe the committee's deliberations and inspect its
records. The
only exception provided for by the plain language of Article II, Section 9, arises
when "the
demand of individual privacy clearly exceeds the merits of public disclosure." We
have
established the following test to determine whether there is a privacy interest
which must be
considered:
This Court applies a two-part test to determine whether a person has a
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constitutionally protected privacy interest: whether the person involved had a
subjective or actual expection of privacy and whether society is willing to
recognize that expectation as reasonable.
Missoulian v. Board of Regents (1984), 207 Mont. 513, 522, 675 P.2d 962, 967.
¶21 We have previously held that corporations do have an interest in privacy
protected by
the Montana Constitution, and that a governmental agency can assert that right on
behalf of
the private interest. See Belth v. Bennett (1987), 227 Mont. 341, 345, 740 P.2d
638, 641.
¶22 The question in this case is whether the private vendors who submitted
proposals had
an actual expectation that all of the information in those proposals would be kept
confidential. The Department contends that there was an actual expectation of
privacy based
on the assurances given in paragraph 1.1.4.2 of its RFP and the RFP's reference in
paragraph
1.1.4.1 to § 18-4-304, MCA, and § 2.5.602, ARM.
¶23 The Tribune contends that there could have been no actual expectation of privacy
based on either the assurances in the RFP or the statutory or regulatory provisions
relied
upon. The Tribune points out that the RFP, § 18-4-304, MCA, and § 2.5.602, ARM, all
provide for ultimate disclosure of the proposal's contents once a contract has been
executed,
with the exception of trade secret information. The Tribune concedes that pursuant
to
§ 18-4-304, MCA, and our prior decision in Mountain States Telephone & Telegraph Co.
v. Department of Public Service Regulation (1981), 194 Mont. 277, 634 P.2d 181, the
vendors do have a privacy interest in legitimate trade secrets which are an
exception to the
public disclosure requirements of Article II, Section 9, but that based on the
Department's
own representations to the vendors, they had no other expectation of privacy in the
information included in their proposals.
¶24 The record in this case includes testimony from two state officials and three
representatives from vendors who had submitted proposals. This testimony
demonstrates the
actual reasons for excluding the public from the committee's meetings and the
vendors' actual
expectations regarding ultimate disclosure of the proposals they submitted.
¶25 Sheryl Motl is a Bureau Chief in the Purchasing Bureau for the Department of
Administration, and in that capacity works in the procurement process. She
testified that it
is important to the RFP process that the contents of proposals not be publicly
scrutinized
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until the State can complete its negotiation process. She explained that it is
important that
competitors not know what one another have proposed if the State is going to get
"the best
deal." She felt that if the process was open, the State would not be able to
negotiate
effectively. She conceded, however, that at the end of the negotiation process,
after a vendor
is chosen and a contract executed, the information included in the proposals would
be open
to public inspection, except for trade secrets or other proprietary information.
¶26 Janie Wunderwald is the Contract Manager for the Department of Corrections, and
in that capacity prepared the Department's request for proposal. She testified that
five
companies responded to the request and provided twenty-six volumes of material, but
that
she knew of only one document in the twenty-six volumes which had been marked "trade
secret." She contended that the information included in the proposals would
jeopardize
security at the correctional facility if made public, but also acknowledged that
after the
contract is executed, all the proposals, except for those parts which constitute
trade secrets
or which relate to public safety would be released to the public. She admitted that
the only
reason the evaluations cannot be opened now, rather than in the future, is that it
would
jeopardize the Department's ability to negotiate the best possible deal for the
taxpayers of
Montana.
¶27 Brad Wiggins is the Director of Business Development for the Corrections
Corporation of America, which is one of the vendors submitting a proposal to the
Department. Michael Murphy represents Management and Training Corporation, and
Lawrence Barreras represents Cornell Corrections. Both of those companies also
submitted
proposals. All three gentlemen testified before the District Court. Although they
all
testified that they expected their proposals to be confidential during the
negotiation phase, none of
them testified that their companies would not have submitted a proposal had they
known they
would be publicly disclosed, and all acknowledged that when they submitted their
proposal
they were aware that, pursuant to law in Montana, the proposal would be subject to
public
inspection after a contract was executed.
¶28 It is clear from the language of the Department's RFP, the terms of § 18-4-304,
MCA,
§ 2.5.602, ARM, and the testimony of the State's witnesses, that everyone involved
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in this
process and, most importantly, the vendors who submitted proposals, had every
expectation
that the information included in the proposals, except for trade secrets or matters
related to
security, would ultimately be available for public inspection. The only question
was one of
timing, and the matter of timing was not related to the question of privacy, but
instead to the
Department's concern that it get the "best deal."
¶29 While we are in no way critical of the Department's determination to get the
"best
deal" for the taxpayers of Montana, we must also necessarily conclude, based on the
plain
language of Article II, Section 9, and our prior decisions, that economic advantage
is not a
sufficient reason for denying the public the opportunity to observe the
deliberations of public
bodies and inspect public documents. Economic advantage is not a privacy interest.
¶30 The State's argument for privacy is analogous to the school board's argument in
Great
Falls Tribune v. Great Falls Public Schools (1992), 255 Mont. 125, 841 P.2d 502. In
that
case, the Tribune sought admission to a meeting of the board of trustees for the
Great Falls
public schools at which the board intended to discuss negotiations for a new
collective
bargaining agreement with teacher aides and library aides. The board contended that
they
were entitled to hold these meetings privately pursuant to § 2-3-203, MCA, which
provided
that meetings to discuss collective bargaining strategy need not be held publicly.
The
district court denied the Tribune access to the board's meetings based on the
statutory
provision. On appeal, the Tribune contended that the statutory exception was
unconstitutional, in violation
of Article II, Section 9, because it did not relate to individual privacy, but
instead served a
public agency's interest in privacy. We agreed. We held that:
Article II, Section 9, of the Montana Constitution is unambiguous and capable
of interpretation from the language of the provision alone. Great Falls Tribune
v. District Court (1980), 186 Mont. 433, 437, 608 P.2d 116. Associated Press
v. Board of Education (1991), 246 Mont. 386, 804 P.2d 376. In Associated
Press, we noted Article II, Section 9, to be "unique, clear and unequivocal"
and held that:
We are precluded, by general principles of constitutional
construction, from resorting to extrinsic methods of
interpretation.
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Associated Press, 246 Mont. at 391, 804 P.2d at 379.
Great Falls Tribune, 255 Mont. at 129, 841 P.2d at 504.
¶31 We held that the board's asserted interest in effective collective bargaining
did not
involve a matter of individual privacy which would serve as an exception to the open
meeting
law and, therefore, that:
The collective bargaining strategy exception is an impermissible attempt by the
Legislature to extend the grounds upon which a meeting may be closed. We
conclude that Sec. 2-3-203(4), MCA, is unconstitutional and the District Court
is reversed.
Great Falls Tribune, 255 Mont. at 131, 841 P.2d at 505.
¶32 Likewise, the Department's committee meetings have not been closed in this case
for
reasons of privacy; they have been closed to gain economic advantage. However,
there is
no exception provided in the plain language of Article II, Section 9, for the
State's economic
advantage. As we noted in Great Falls Tribune, a public agency's desire for privacy
does
not provide an exception to the public's constitutional right to observe its
government at
work.
¶33 Furthermore, we conclude that the actual private vendors who are involved in
this
case had no reasonable expectation that the information included in their proposals,
other
than trade secrets, would remain confidential. They were all informed and were
aware, prior
to submitting their proposals, that the proposals would ultimately be available for
public
inspection. They were only led to believe that the proposals would be confidential
while it
was in the State's economic interest to avoid disclosure. We conclude that in this
case there
is no privacy interest in the entirety of the vendors' proposals to balance against
the merits
of public disclosure. We therefore conclude that the petitioner, Great Falls Tribune
Company, Inc., has a constitutional right pursuant to Article II, Section 9, of the
Montana
Constitution, to observe the deliberations of the Department of Corrections
Committee for
Private Prison Screening and Evaluation and to examine its documents, including the
proposals which have been submitted to it. The only exception to this right relates
to
information in which there is a privacy interest. That interest includes legitimate
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trade
secrets, pursuant to our decision in Mountain States, and matters related to
individual safety,
pursuant to our decision in State ex rel. Great Falls Tribune v. Eighth Judicial
District
(1989), 238 Mont. 310, 777 P.2d 345. In other words, the Department can legitimately
withhold no more information from public scrutiny during the negotiation process
that it can
withhold after the contract is executed. To the extent that § 18-4-304(4), MCA, or
§ 2.5.602,
ARM, require exclusion of the public, including the petitioner, from the committee's
meetings, or prevent the public's inspection of the committee's documents, other
than as
previously provided, we conclude that those provisions violate Article II, Section
9, of the
Montana Constitution, and, therefore, are unenforceable as applied.
¶34 This case involves the perception of State officials that private negotiations
are in the
State's short-term economic interest. However, the delegates to the Constitutional
Convention made a clear and unequivocal decision that government operates most
effectively, most reliably, and is most accountable when it is subject to public
scrutiny. It
is that fundamental principle of this State's constitutional law which is the basis
for this
Court's decision.
¶35 While on any given occasion there may be legitimate arguments for handling
government operations privately, the delegates to our Constitutional Convention
concluded
that in the long-term those fleeting considerations are outweighed by the dangers of
a
government beyond public scrutiny. As we have in the past, with this decision, we
reinforce
that conclusion.
¶36 For these reasons, the judgment of the District Court is reversed in part and
affirmed
in part.
/S/ TERRY N. TRIEWEILER
We Concur:
/S/ J. A. TURNAGE
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ JIM REGNIER
Due to unavoidable circumstances, and the urgency with which this opinion was issued,
Justice William E. Hunt, Sr., was unable to sign the final opinion. However, he
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concurs with
the result.
Justice W. William Leaphart, concurring in part and dissenting in part.
¶37 I concur in part and dissent in part. In the interests of allowing the
majority opinion
to issue as soon as possible, I will elaborate on my views at a later date.
/S/ W. WILLIAM LEAPHART
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