Bischoff delays records release

Libby City Council member Bill Bischoff has retained local attorney Ann German to represent him regarding a public records request filed with his employer, Lincoln County. The move prompted the Lincoln County commissioners to retain their own independent counsel at a cost to county taxpayers of $200 per hour.

German was asked by Bischoff to review several emails sent between him and other members of the Libby City Council, using the county’s email system, to determine if they are subject to release under Montana public records laws.

“Mr. Bischoff has asked my legal assistance in responding to your request, as some of the emails contain matters which may be privileged or otherwise not subject to release,” German wrote in a letter to the commissioners dated June 2.

Mike Meloy, an attorney with the Montana Freedom of Information Act Hotline, said what is at issue is the definition of public records under Montana law. Communication by and between government officials and employees is, by definition, public record. The law provides for exemption if and only if the document in question is limited strictly to matters of personal privacy.

“What makes the records public is that they are records held by the county,” Meloy said. “They are located, they are placed on, they exist as a county record and they are subject to public records law.”

There are, however, exemptions under law to the required release of public records. If the content of the documents, in this case email communications, is strictly limited to personal matters they could be exempt from release. 

“For example, if he sent an email to council members saying he wasn’t going to be able to attend a meeting because his mother has cancer and he had to take care of her,” Meloy said. “That wouldn’t be a public record, it’s private information.”

If, however, the messages contain any information regarding public business by any agency or affiliate of a governmental body, they are considered public and release is required.

“Is it part and parcel of business conducted by the city or county? If so, it’s a public document,” Meloy said.

In response to a records request filed by The Western News, the commissioners scheduled a special meeting for 2 p.m. June 2. Bischoff was asked to prepare and present any objections to the release of any of the requested emails prior to that meeting. Instead, German responded to the commissioners with the letter, in which she asked for an extension of the deadline until June 8. Neither Bischoff nor German attended the meeting.

“Due to the volume of the material, there is no way that I could adequately review it in order to meet today’s deadline,” she stated in the letter.

The commissioners voted unanimously to grant the requested extension.

During discussion about the records and the process, Commissioner Mark Peck said the commissioners were going to hire an outside attorney to advise them on the matter and ensure they handled it properly.

“We want outside, impartial representation,” Peck said. 

The attorney retained by the commission is retired deputy Flathead County Attorney Jonathan Smith, with whom Peck became acquainted during his tenure with the Montana Department of Natural Resources and Conservation.

“He’s a local government expert with no connection here other than I worked with him,” Peck said. “He’s a straight shooter and damn good at what he does.”

Smith’s contract is capped at 25 hours, or a total of $5,000.

“We voted to approve a 25-hour initial cap in case it gets that far,” Peck said. “We don’t anticipate it will, but we will have to re-evaluate at $5,000 to increase it or not.”