The Montana Constitution protects the right to examine documents held by any arm of the state government—except when “the demand of individual privacy clearly exceeds the merits of public disclosure.”[1] This “right-to-know” provision ensures government transparency when it touches the public interest. The Montana Supreme Court recently had to decide whether the state constitution’s right-to-know provision applies to information the Governor relies on to carry out his constitutional powers. The court answered in the negative, recognizing for the first time an executive-privilege exception to Article II, Section 9. This ruling will likely protect confidentiality in the Governor’s decision-making process and limit future public access to executive-branch records.

Jayson O’Neill submitted public records requests to the Montana Governor’s office seeking certain Agency Bill Monitoring (ABM) forms.[2] Executive branch officials use these forms to state their views to the Governor on pending pieces of legislation. The Governor relies on ABMs in deciding whether to support (and ultimately sign or veto) the relevant legislation. Seeking to protect the integrity of the advice given to the Governor, the Governor’s office denied O’Neill’s records request, arguing that the ABMs were protected by various forms of privilege.[3]

O’Neill sued, arguing that the Montana Constitution’s right-to-know provision required the Governor to produce the ABMs. In response, the Governor’s office argued that executive privilege shielded the documents from disclosure. At first, O’Neill won. The state district court held that Montana law doesn’t recognize executive privilege in the Article II, Section 9 context.[4] The court would instead review the requested forms to determine whether or not attorney-client privilege applied.[5]

On appeal, the Montana Supreme Court faced a single question: Whether an executive-privilege exception to Article II, Section 9 shields from disclosure information that the Governor receives during his pre-decisional deliberations. The court said yes. Justice Shea’s opinion began by noting that the Montana Constitution’s right to know is not absolute.[6] The provision’s own terms shield government records from disclosure when they carry a high demand for privacy. In the past, the Montana court has also ruled that the right-to-know provision did not abolish historical privileges “necessary for the integrity of government” that existed when Montana ratified its constitution.[7]

To decide whether executive privilege applied to the requested forms, then, the court had to decide whether the common law supported executive privilege when the Montana Constitution was ratified—and also whether this privilege is “necessary for the integrity of government.” The court first rejected any reliance on federal precedent in deciding these questions. Because it was interpreting the Montana Constitution, the court wrote, it needed to analyze Montana’s own historical treatment of executive privilege.[8]

Montana law has long recognized the Governor’s need for candor in carrying out his executive authority.[9] Both the original 1889 constitution and the now-effective 1972 Montana Constitution authorized the Governor to seek advice from his executive officers. For the Governor to carry out his various constitutional duties, like signing or vetoing legislation, Montana law recognized that the Governor needs honest advice. Much like the historical privileges between attorneys and clients and priests and penitents, executive privilege is rooted in the need for candor between an individual and those they seek counsel from.[10]

While the court held that Montana law recognizes executive privilege, it also held that this privilege has its limits. Like other candor privileges, executive privilege ceases to exist when it no longer serves its purpose.[11] The Governor argued in this case that he relies on the advice he receives in ABMs to carry out his duty to sign or veto legislation, and that requiring immediate public disclosure of that advice may hinder his ability to receive and use it. According to the court, however, the need for privacy diminishes once the legislative process runs its course, and then vanishes outright when the Governor leaves office.[12] Executive privilege is therefore most “necessary for the integrity of government” when the Governor prepares to carry out an executive power, like issuing a pardon or commanding the state militia.

Three justices dissented from the court’s recognition of an executive privilege in this context. Writing for the dissenters, Justice Laurie McKinnon argued that the court shouldn’t be carving out formal privilege exceptions to the right-to-know provision at all.[13] The text of Article II, Section 9, she argued, already provides a framework for deciding whether government documents must be disclosed in any individual case. Recognizing categorical exceptions to the right-to-know provision, according to the dissent, runs counter to the text of the provision.[14] In the dissenters’ view, too, carving out a broad exception to the right-to-know provision threatens to limit the Montana Constitution’s strong presumption in favor of government transparency.[15]

The court’s decision provides an avenue for limiting public access to certain executive-branch records. But it also vests Montana courts with the ultimate authority to evaluate claims of executive privilege. The Montana Supreme Court wrote that the lower courts must review any information claimed as privileged to determine whether executive privilege actually applies.[16] When the Governor asserts executive privilege, he carries the burden to prove that the information is essential to carrying out one of his core constitutional powers. If the Governor doesn’t meet this burden, executive privilege does not apply, and the requested documents must be produced.[17]

 

[1] Mont. Const. art. II, § 9.

[2] O'Neill v. Gianforte,  561 P.3d 1018, 1020 (Mont. 2025).

[3] Id. at 1021.

[4] Id.

[5] Id.

[6] Id.

[7] Id.; see Nelson v. City of Billings, 412 P.3d 1058, 1066 (Mont. 2018) (“Importantly, during debate on Article II, Section 9, the delegates acknowledged instances, unrelated to individual privacy concerns, in which the right to know would not apply: when “necessary for the integrity of government.”).

[8] O’Neill, 561 P.3d at 1022.

[9] Id. at 1023.

[10] Id.

[11] Id. at 1024.

[12] Id.

[13] O’Neill, 561 P.3d at 1026 (McKinnon, J., dissenting).

[14] Id. at 1026–27.

[15] Id. at 1028.

[16] Id. at 1025.

[17] Id. at 1025–26.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].