*1 THE TRIBUNE; THE GREAT FALLS THE MONTANA GAZETTE; BILLINGS INDEPENDENT STANDARD;THE HELENA MISSOULIAN; THE BIG SKY RECORD; THE PUBLISHING, INC., d/b/a BOZEMAN THE MONTANA DAILY CHRONICLE; ASSOCIATION; THE MILES NEWSPAPER ENTERPRISE; THE STAR; CITY LIVINGSTON RADIO; PUBLIC THE YELLOWSTONE and THE MONTANA PRESS, INC.; ASSOCIATE ASSOCIATION, BROADCASTERS Appellants, Petitioners and v.
THE MONTANAPUBLIC SERVICE
COMMISSION, Cross-Appellant, Respondent and COMPANY, THE POWER n/k/a MONTANA ENERGY, LLC, NORTHWESTERN Respondent. Intervenor No. 02-301. January 16, Argued Orally Submitted 2003. 18, 2003. Decided December
For A. McHugh (argued), Robin Montana Public Commission, Service Helena. Marjorie Thomas,
For Intervenor: L. Michael P. Manion (argued), Energy, LLC, Northwestern Butte. (argued), Kellner,
For Amici: John Alke Hughes, & Sullivan Alke, (Qwest Corporation Helena and Montana-Dakota Utilities Elison, Company); Larry Clifford, M. Attorneys Law, Matthew at Canyon, Gold Arizona.
DISTRICT Opinion JUDGE MCLEAN delivered the Court. (hereinafter media”) Appellant media “the entities appeal Memorandum Court, from the and Order of the First Judicial District County, granting Lewis and Clark partial by the media relief concluding that certain documents filed Montana Power (“MPC”) Company with the Montana Service Public Commission (“PSC”) public, denying should disclosed to but the media access to certain other documents filed MPC with the PSC under the PSC’s consideration, Order. Protective After due this matter is reversed and *4 for further proceedings Opinion. remanded consistent with appeal the We restate issues on as follows: ¶2 by failing correctly 1. the erred Whether District Court balance ¶3 public’s the of access to documents filed the the against privacy. MPC with PSC the MPC’s constitutional of exhaust its administrative required to the media was 2. Whether ¶4 in District Court. filing an action the remedies before unconstitutionally the shift rules procedural the PSC’s 3. Whether ¶5 creating impermissible an thus proof public, to the burden confidentiality. presumption application interpretation District 4. the Court’s Whether
¶6 was correct. statutory of “trade secret” the definition regarding correct conclusions were the District Court’s 5. Whether were the court found the confidentiality of documents the from disclosure. constitutionally protected
BACKGROUND known as Northwestern Company, now The Montana Power for the provider services LLC, electric distribution Energy, is the such, MPC is As the state of Montana. two-thirds of western 69-8-210(3), ARM, by statute at 38.5.6007, § by Rule required territory. service supplier for that MCA, act as the default docket supply portfolio 29,2001, MPC filed its default October On docket for portfolio of its PSC, seeking approval PSC with Montana’s docket consisted July 1,2002. portfolio MPC’s year beginning the fiscal Filing purchases. spot mid-term and market long-term, package of a under utility companies statutorily required with the PSC Annotated, the PSC to determine to enable 69, Montana Code Title have been supply portfolio default of MPC’s whether the costs “fully rates.” be recoverable incurred” and should “prudently 69-8-210(4)(a), MCA. PSC, MPC docket with filing required portfolio Before prevent public order protective PSC for a a motion to the
made party with third purchase contracts supply ofMPC’s parts disclosure of MPC confidentiality provisions. subject to ofwhich are suppliers, some MPC was for which the information the PSC that represented to trade constitutionally protected order contained seeking protective economic that have information secrets and confidential customers, and contract bidders supply and/or its default to MPC value PSC confidentiality. requested MPC also of their holders virtue any other enough to cover broadly drafted order be protective during the review may requested protective more obtaining delays any procedural to avoid during process. orders filed the The MPC order. protective requested The PSC issued Order under supply contracts
default *5 provided redacted versions of public. the contracts to the Other documents have since been filed under the PSC Protective Order in response to requests during data made filing PSC and review process. 2,2001, On Dennison, November Mike a reporter with Petitioner Tribune,
Great Falls sought to examine certain documents by information deemed confidential MPC which MPC had submitted approval. the PSC for Mr. Dennison was informed PSC sought documents he subject were to the PSC Protective Order but that he could challenge MPC’s confidentiality claims of by filing a motion with the PSC in 38.2.5008, accordance with Rule ARM. Rather than filing such the Great Falls PSC, motion with the
Tribune, along with the entities, other named media filed an action with the Montana First Court, Judicial District Lewis and Clark County, seeking disclosure of purchase information from and sale agreements contained in MPC’s portfolio regarding docket certain electricity contractors, suppliers, projects and other information purporting to fall within the parameters of the PSC Protective Order. Other information sought by the media included documents such as exhibits, charts, tables, calculations, papers, work studies and bid information which provided were to the PSC in response to data requests PSC, from the the Montana Consumer Counsel and other interested parties involved with the approval review and process MPC’s default portfolio By docket. Memorandum and Order entered
March 2002, the District Court denied the motions of the PSC and MPC to dismiss the court action based on the District Court’s conclusion that the PSC properly failed to apply the Montana Constitution, II, Section 9 constitutional balancing test set States, forth Mt. Dept. Etc. v. Reg. (1981), Pub. Serv. 194 Mont. 277, 284-86, 181, 186-87, 634 P.2d to determine whether individual documents are constitutionally protected from disclosure under Montana’s privacy” provision, “individual only and that the courts have jurisdiction to rule on constitutional issues. Following three-day a evidentiary hearing court on the merits on 20, 21,
March 22, 2002, the District Court issued a Memorandum April 29, 2002, Order dated wherein the District Court ruled on the confidentiality of categories several of documents located in MPC’s portfolio so, doing docket. While acknowledged court the existence forth in Mt. States balancing constitutional test set determining whether documents are constitutionally protected from disclosure under the of privacy provision. However, argue the court that the MPC did not before
court noted that the States constitutional protected under the Mt. documents were Rather, argued that the rights.” the MPC balancing “privacy test as rights” protected “property comprised was process.”1 “due Court, that the District Court alleging appealed The media (1) balancing test 9 constitutional apply the Article failed (2) document; presumption privacy challenged adopted to each from MPC to the unconstitutionally proof shifted the burden of (3) excessively definition of“trade secret” adopted an broad public; and constitutionally by MPC were documents filed evaluating whether public disclosure. protected from *6 the District Court heard represents MPC response,
¶16 document, correctly applied challenged evidence, each reviewed categorizing to each document before balancing test the constitutional summarizing the efficiently court’s purposes of the documents in decision. analyses its written appeal, and MPC in this filed the PSC In addition to the briefs
¶17 Qwest jointly by Corporation have been filed amicus briefs utility are Company, both of whom Utilities Montana-Dakota PSC, by University of by the regulated are companies which Emeritus, Larry Elison. Constitutional Law Professor Montana REVIEW OF STANDARD case, are no material there posture current Under the this Court must determined before of fact which questions Therefore, we review challenges. media’s constitutional entertains the they are law to determine whether Court’s conclusions of the District Justice, 153, 6, MT 295 1999 Brady Dept. ¶ correct. v. Montana 75, 6, P.2d 6. Mont. 983 ¶ ¶
DISCUSSION ONE ISSUE correctly balance by failing to District Court erred Whether filed MPC to documents right of access public’s constitutional right privacy. against MPC’s constitutional the PSC with solely the Mt. States Court relied on the District 1 MPC’sinitial briefs before privacy briefing, However, post-trial its theory. in MPC abandoned privacy theory at trial and rights protect process grounds its due and asserted constitutional suppliers’ trade secrets. in its and its
45 II, The Article Section 9 constitutional balancing test is founded legal on this Court’s conclusion the Mt. case States that a business entity’s trade secrets and confidential proprietary information are constitutionally protected from “right disclosure under the privacy’ provision Constitution, of the Montana which provides: person
No deprived shall be right to examine documents or to observe the deliberations of all public agencies bodies or of state government and subdivisions, except in cases in which the demand of privacy clearly individual exceeds the merits of disclosure. Const, II, added). Art. Sec. Mont. (emphasis In assuming in Mt. States that the framers of Article Sections 9 surely and 10 intended non-human entities to have the same rights privacy as do human individuals to avoid equal protection problems under both the state and constitutions, federal this Court failed engage any meaningful language construction analysis or review of the Constitutional Convention history to determine whether the word “individual” could reasonably be interpreted to include non-human entities such corporations. Mt. States, 277; 194 Mont. 634 181; Press, P.2d Associated Inc. v. Department, 2000 MT Mont. P.3d 5. While the United Supreme States Court has determined that the privacy
individual’s implicitly contained in Rights the Bill of to the United States Constitution, of individual privacy is expressly provided in Montana’s Constitution which reads:
The right of privacy individual is essential to well-being of a free society and shall not be infringed without showing of a *7 compelling state interest. Const, II, added).
Art. Sec. Mont. (emphasis While ¶23 the 1972 Montana Constitutional Convention delegates elevated people’s right privacy of ato state right constitutional which exceeds the boundaries of the right federal of privacy under the United States Constitution, the majority of states still follow the right common law privacy of or right have codified the privacy by of adopting statutory privacy rights laws2. 2 generally Nadel, See Exempt Andrea G. What Constitutes Personal Matters From by Privacy Exemption Act,
Disclosure Invasion Under State Freedom of Information of 666; Nadel, 26 A.L.R. 4th Exempt Andrea G. What Constitutes “Trade Secrets” From Act, 773; Disclosure Under State Freedom 27 A.L.R. 4th Lawrence of Information Kaplan, What Constitutes “Trade Secrets and Commercial or Financial Information Privileged Obtained Confidential,” Exempt From Person and From Disclosure
46 in this case amicus brief Larry appeared Elison Law Professor non-human entities to revisit the issue of whether urge this Court framers to have by the State Constitution’s
were intended to the “right privacy” exception of protection under constitutional II, at Article Section 9. Professor right provision “public’s know” and Associated that this Court erred in the Mt. States Elison submits Press, Inc., interests ofnon-human by treating business cases right entities, constitutionally protected corporations, such as as by the Montana Constitutional as evidenced privacy provision, of framers’ intent expressly reflect the transcripts, Convention which II, applies in Article Section 9 privacy” exception the “individual that individuals, business entities have only human and that non-human II, privacy under Article claim to no such constitutional Convention, Verbatim Section 9. See also Montana Constitutional delegates’ 7, 1972, (referring to the Transcript, pp. March 1669-80 Article privacy in connection with of “individual” or human discussion 10). II, Section the context Furthermore, points Elison out that under Professor binding Constitution, is in essence a written the State which there government, and their people of Montana
compact between that to conclude language upon construction is no known rule of II, Article can “individual,” used in Sections 9 and 10 of the word human individuals.3 other than natural anything mean and other Rather, Elison submits that trade secrets Professor are “property” entities proprietary interests business Federal Fifth Amendment to the under the protected interests just without takings by government (private property Constitution Federal Amendment to the and the Fourteenth compensation) law). (due under the equal protection Constitution the Mt. to overrule urges Elison this Court Accordingly, Professor Section 9 to balancing test under States balancing of the relied on progeny and its extent Mt. States when “right to know” privacy” against public’s “right individual’s a human individual. privacy is other than claimant of the by proposing position Elison’s media counters Professor 552(b)(4)) (5 (FOIA), A.L.R. Fed. 225. § Act USCS 139 Freedom Under of Information Elison, Comments on Government generally Larry & E. See M. Elison Deborah (1994). Secrecy, Censorship MONT. L. Rev. 175
47 already implicitly this Court has overruled Mt. States in Associated Press, Inc., (Nelson, J., 50-52 specially concurring), ¶¶ Great Falls Co., Day, 133, 16-21, 289 155, Tribune Inc. v. 1998 MT Mont. 16- ¶¶ ¶¶ 21, 16-21, 959 P.2d to the extent that Mt. ¶¶ States found that a entity corporation business such as a has “privacy” constitutional rights which must against public’s be balanced constitutional “right to government doing. However, know” what its is the media does not entity’s concede that a business trade secrets and confidential proprietary information have any constitutional under other state or federal provisions, including constitutional process due provisions, justify which would non-disclosure publicly-held of the documents at issue in this case. argues The media that even if the proper question is
constitutional due non-human protection of a entity’s property rights, opposed privacy rights, to individual public’s “right know” should only be vitiated if poses disclosure “clear and present danger” to property right the asserted applied by as was this Court in State (1982), ex rel. Smith v. District Court 201 Mont. 654 P.2d 982. case, In the Smith this Court held despite that the inclusion of the
“individual privacy” language there are other rights compete that “public’s right with the to know.” In case, that competing right was the ato fair trial in a criminal context, In action. we stated:
Whether the
press
basis for
and public’s right of access be the
First and
Amendments
Fourteenth
to the United States
“Right
Constitution or the
provision
to Know”
of the Montana
Constitution,
guarantee
is not absolute. It can
properly
circumscribed when the right
against
or interest
which it
competes weighty
compelling.
Mont,
Smith,
201
at
concurrence Nelson, Justice James C. concurred with Justice W. Leaphart, William wherein Justice part: Nelson stated relevant The Mountain correctly States Court asserted that the federal due process rights corporation] may [the very well have been at stake, in that the corporation being was deprived of its - - trade secrets without process. due The Court could have and should stopped have there. strictly We should have turned provisions those of the federal and disposed constitution case on that basis. Press, (Nelson, J., concurring).4 Inc., specially
Associated ¶ Press, Inc., position ofhis in the Associated explanation further case, Justice Nelson stated: *9 that we did approach [in States] with this Mt. was problem the Fifth and Fourteenth
not need to find a conflict between II, to resolve the case on Amendments and only recognize that the process grounds. federal due We needed provide section did not privacy right included in this latter that, entities; by virtue of the protection to non-human but Clause,” “Supremacy [the Constitution’s Article VI Federal were, nevertheless, clearly protected corporation’s] trade secrets disposed could have ofthe case under the federal constitution. We an order remanding entry appropriate protective simply in grounded process. due Press, Inc., (Nelson, J., concurring). specially
Associated 77¶ the issue of whether the word Having decided to revisit II, Montana in Article Sections 9 and 10 of the “individual” used entities, has now includes non-human Court Constitution in special concurrence of Justice Nelson determined that Press, Inc., intent ofthe accurately purpose reflects the Associated privacy State constitutional framers to limit the Montana Press, Inc., 105-08 to natural human individuals. See Associated ¶¶ Convention, (Nelson,J., concurring); Montana Constitutional specially 7, 1972, regard, In that Transcript, pp. March 1669-81. Verbatim meaning ofthe term “individual” following dialogue on the issue of Convention 1680 of the 1972 Constitutional page is recorded at Transcript, as follows: Dahood, being an HELIKER: Mr. [GEORGE B.]
DELEGATE ignorant nonlawyer, what is an individual? individual? JOSEPH] DAHOOD:What is an [WADE
DELEGATE any corporation? also a HELIKER: Is it chance DELEGATE course, Heliker, can, Dr. as person DAHOOD: A DELEGATE under the law. know, corporation defined to include a you well be can, can an person I a but HELIKER: know DELEGATE individual? individual, myjudgment, would not An in
DELEGATE DAHOOD: corporation, no. applying following Mi. States in-depth Montana cases discussion of the line of For entities, special Justice Nelson’s right privacy see individual to non-human Press, Inc., 71-102. ¶¶ concurrence in Associated Delegate is further Dahood’s position represented This part to the State Constitutional Convention statement relevant delegates privacy provision that the is not enacted for press, benefit of the but “for the benefit of the citizen of the State of Convention, Transcript, Montana.” Montana Constitutional Verbatim 7, 1972, p. Accordingly, March 1673. Section 9 of Article II of the Constitution, ultimately adopted by Montana the 1972 Convention, provides: Constitutional person deprived
No shall be to examine documents or agencies to observe the deliberations ofall bodies of state government subdivisions, and its except in cases in which the privacy clearly demand of individual exceeds the merits of disclosure. Const, added). Art. Sec. Mont. (emphasis Immediately following dialogue cited delegates above between Dahood, Dr. Heliker and Mr. delegates Constitutional Convention approved the use of the “right privacy” words of individual in Section express 9 of Article II as an exception public’s right to the under the Montana Constitution to government know what doing. *10 Consequently, to further scope define the right constitutional of privacy Constitution, under the Montana delegates the also inserted the II, word “individual” into Section 10 of Article adopted which as reads: right privacy of individual is well-being essential to the of a
free society infringed and shall not showing without the of a compelling state interest. Const, added). II,
Art. Sec. Mont. (emphasis Accordingly, the Transcripts support ¶36 Constitutional Convention Professor position right Elison’s that the state privacy constitutional of only is afforded beings to natural human and not to non-human corporations. entities such as Professor Elison is likewise correct there are no language permitted known rules of construction which summarily this Court extend in the Mt. States case the right privacy constitutional to non-human entities under ordinary and unambiguous definition of “individual.” Consequently, special this Court concludes that the concurrence ¶37 Press, Inc., of Justice masterfully Nelson the Associated case II, outlines the interpretation correct of Article Sections 9 and 10 that privacy” exception “right the “individual to the public’s know” Press, Inc., only. limited to natural human individuals Associated ¶\ (Nelson, J., specially concurring). 71-102 States, Accordingly, hereby expressly this Court overrules Mt. II, progeny, rely
and its to the extent the decisions on the Article balancing test of the of “individual constitutional privacy” against public’sright “to examine documents or to observe agencies government of all of state the deliberations bodies or protecting and its as a basis for trade secrets and other subdivisions” proprietary confidential information of non-human entities. enjoy privacy rights non-human entities do not under While Constitution, nothing the Montana privacy provision requires disclosure of trade secrets and other Section 9 protected information where the data is from disclosure elsewhere in the federal or state constitutions or statute. enjoy confidentiality example, corporate entity may For a non-human statutory law, such as the of its interests under Montana Act, protection Part Chapter Uniform Trade Secrets Title “taking” just use against private property for without Such cases compensation under the federal state constitutions. implicate equal protection the due clauses ofthe state and legal grounds through which non federal constitutions form the human entities can seek of confidential information.
ISSUE TWO its administrative required Whether the media was to exhaust filing remedies before an action in District Court. The MPC and the PSC filed motions to dismiss the action before argument that the media primarily
the District Court based on the the PSC’s required failed to first file a motion before the PSC as under challenging procedure purposes rules of administrative confidentiality. MPC’s claims of dismiss, and PSC’s motions to the District denying MPC’s media in that since the central issues raised
Court concluded challenges to relevant the district court action involved law, statutes, case the PSC regulations, administrative and Montana the District jurisdiction to determine the issues raised before lacked *11 legal factual and proceeded Court. The District Court to make documents or certain regarding specific determinations whether rights portfolio in MPC’s constituted categories of documents proprietary other confidential in the form of trade secrets or This all done constitutionally protected. was information which are agency developing a record of the administrative without benefit complex on these issues. making and threshold determinations virtually eliminates the difficulty approach is that it The with agency. founding purpose administrative of very purpose of the PSC, agencies, largely part due state administrative such was are decision-making the initial into the hands of those who place to in the field to make those decisions. knowledgeable qualified most case, presumably requisite expertise In the the PSC has the present by utility companies examine filed it and determine documents before constitutionally any protected property if of the documents contain of trade rights in the form secrets may
information. The district court then review the record of the issues, agency proceedings, including disposition its of the correctly legal agency important determine whether the decided the issues, including property rights matters such as and trade secrets. Court, directly Since the media filed this action in the District PSC, by-passing thus we conclude this matter should remanded however, arguments. doing so, to the PSC for consideration ofits In we purposes note that the PSC must review its administrative rules for confidentiality, challenging they appear primarily since to be concerned competitor seeking with utilities information. Some of the media, may apply .5028, rules not to the such as Rules 38.2.5027and ARM, requiring parties sign interested a nondisclosure statement.
ISSUE THREE unconstitutionally procedural Whether the PSC’s rules shift the proof public, creating impermissible burden of thus an presumption confidentiality. At the proceeding same time the court action was in the District
Court, challenged, confidentiality sponte, PSC sua MPC’s claims of 38.2.5008(3), doing so, documents to Rule ARM. In the PSC pursuant declined expressly any to address of the documents at issue whether portfolio in MPC’s docket from disclosure protected were pursuant privacy to the constitutional clauses under Article Rather, the PSC’s Sections 9 and 10 of the Montana Constitution. limited to the the information expressly decision was issue of whether sought protection for which the MPC constituted “trade secrets” which process” analysis. are under “due protected challenge MPC’s claims of response sponte to PSC’s sua its confidentiality process grounds, on due the MPC filed with the PSC arguments supporting the trade secret status evidence addressed responded The media a short statement information. with did not indicating position to the that MPC’s information PSC *12 qualify constitutionally protected secrets, as trade but offered neither argument nor evidence the support position. before PSC to Consequently, the PSC issued a written Order on Providers’ Claims of (1) 21, 2002, Confidentiality on March which: evaluated MPC’s claims (2) confidentiality against law; basic trade secret found that MPC had the initial establishing burden of trade secrets and had met that (3) burden; that, argument having concluded no other evidence or media, presented by been by information was determined PSC to constitute trade secrets entitled to protection Co., a matter of Mont. Approval Supply law. Power of the Default Projected Tracking Portfolio and the Electric Cost for the 12-Month 1, 2002, Beginning July D2001.10.144, Period Docket No. Order No. (Mont. 2002). 6382b Pub. Serv. Comm’n Mar. very In the period same time that the PSC sponte was sua
reviewing confidentiality, MPC’s claims to the the District engaged Court in three-day evidentiary hearing was its own extensive to determine whether individual documents filed MPC with the PSC constituted trade secrets or other interests which warranted constitutional protection from disclosure. defending against In connection with the PSC’s and MPC’s motions to dismiss the District Court action based on the media’s remedies, failure to first exhaust their administrative the media challenged procedural unconstitutionally placing PSC’s rules as utility’s of challenging burden a claims of document confidentiality public, creating onto members of the thus an impermissible presumption confidentiality. requested protective MPC had that the initial PSC order in this broadly any
case drafted enough be to cover other confidential may during information that requested process, review avoid delay obtaining orders, procedural protective in more as allowed under 38.2.5004, ARM, provides: Rule (1) commission, discretion,
Generic Protective Orders The in its on order,” provider, may “generic protective the motion a of a issue protective applicable specified which is a information or order by general categories expected supplied of information to be general categories proceedings, in certain provider specified to certain compliance reporting requirements, response with matters, inquires, period (e.g., years) or other for a of time term of generic protective rather order specific proceeding. than provided govern and these rules access to confidential generic protective under the order. if the encouraged by regulations PSC practice anticipated
This will be that confidential information has reason to believe provider process. To during approval likely requested or is to be submitted ARM, end, 38.2.5007(6), provides: that Rule delays proceedings, preventing
In the interests encourages requests to make providers commission in a possible at the earliest time of confidential information if the including anticipation proceeding, of a proceeding, that confidential information will provider has reason believe likely proceedings. in the requested be submitted or is to be argues regulations abrogate the PSC’s The media these *13 confidentiality duty to MPC’s claims of of the affirmative confirm merely filing by allowing represent information at the time of MPC to it to file under the of a to the PSC that all documents seeks protected constitute trade secrets and other generic protective order information, so, doing and that in the PSC’s proprietary presumption of regulations have created an unconstitutional confidentiality. agree. We addressing very In that issue the 1972 Constitutional before
Convention, increasing Delegate Dorothy acknowledged Eck government’s and commentators alike that sheer concern of citizens stating citizenship, by of bigness threatens the effective exercise part: relevant step and believes that one
The committee notes this concern constitutionally change which can taken to this situation is to be presume openness government operations. documents and of stipulates persons have the to [Section II] 9 of Article examine of all governmental documents and the deliberation to the extent that the demands public agencies, except bodies or clearly public right privacy outweigh ofindividual the needs of government and its provision applies of disclosure. The to state by provision this that the subdivisions. The committee intends subject public and resolution of all matters must be deliberations the case in a scrutiny. urged especially It is that this is public increasingly complex society the resolution of democratic wherein complex a leads to the establishment questions agencies. The test of system of administrative bureaucratic access in the face of society is to establish full citizen democratic challenge. 7, Convention, Transcript, March Verbatim Montana Constitutional added). 1972, (emphasis p. 1670 Moreover, provides: Section 8 of Article II public expect governmental has the agencies to afford
such opportunity reasonable participation citizen in the operation agencies prior may the final decision as provided law. effect, Sections 8 and the 1972 Montana impose
Constitution an duty government “affirmative” on officials to make all of their records proceedings public scrutiny. available to Consequently,
there is a presumption constitutional that all every documents of public kind in the hands of inspection, officials are amenable to regardless legislation, special exceptions made to accommodate the exercise of constitutional police power, competing and other interests, constitutional process. such as due Press, Inc., (Nelson, J., Associated specially concurring) (quoting ¶ 640) (1987), Belth v. Bennett 227 Mont. 740 P.2d added). (emphasis Leaving to duty to initiate the challenge confidentiality particular documents filed MPC with “generic” protective the PSC under a abrogates order the PSC’s duty affirmative to make all of its records available to the in the specific findings by absence of represented the PSC that the documents by MPC to constitute trade secrets or confidential information are indeed property require interests which due protections. Consequently, to the extent procedural the PSC’s current rules practices rely
and/or common on mere representations of public *14 utilities that the information contains trade secrets or other protection information which warrants of a PSC order application protective measures, and/or of other the PSC has unconstitutionally shifted the proof public initial burden of to the challenge to public utility’s confidentiality. Thus, a claims of a presumption confidentiality creates directly which conflicts with the presumption public’s right constitutional of the to all public view correlating duty records and of the PSC’s constitutional affirmative to proceedings readily make its public records and available to the in the first instance. Accordingly, hereby this Court that a entity rules non-human
seeking protective protective orders or other measures for materials regulating governmental PSC, filed with a agency, such as the must support confidentiality by filing supporting its claim of a affidavit making prima showing property a facie that the materials constitute due under constitutional protected are rights conclusory. than showing must be more claimant’s requirements. PSC, any objecting parties, enough for the specific It must be ofthe the nature and basis clearly understand reviewing authorities to that confidentiality. To the extent utility’s claims to public less, directs their require this Court rules procedural the PSC’scurrent holding herein. comport amendment to with hereby governmental that the Furthermore, this Court rules filing the time of duty to review at agency has the affirmative entity, and the hereinafter records ofa non-human alleged confidential affidavits, independent and make an required supporting rights which property the records are in fact determination whether applicable under the state or federal process protection warrant due law.
ISSUE FOUR ofthe interpretation application the District Court’s Whether statutory of “trade secret” was correct. definition ultimate outset, inquiry by agency or the district At utility property right has a demonstrable in the court is whether the sought kept information to be confidential and whether the disclosure would, therefore, require compensation of that if there is Certainly “taking” a in the constitutional sense. a trade secret is one statutorily property there is a defined form of information which Here, analyzed right. presented the District Court the documents the documents in fact made various determinations of whether were trade secrets entitled to or whether the documents were of critical public nature and accessible to the media. The media is argues it interpretation District Court’s of trade secrets and determining giving advantage treated as the factor without economic “uniquely creative.” due of whether the information was consideration determining certain starting point, As a when whether secret, agency or the district court information constitutes a trade necessarily documents filed with a private will determine whether “right subject public’s are to the governmental agency above, documents know,” Section 9. As stated pursuant PSC, agencies, such as the are by corporate filed entities with under Montana’s presumptively available for access filing entity prima with the to establish Constitution. The burden rests right entitled that the information is a discernible proof facie private access to the state of Montana obtains protection. When *15 property in the genuine form of trade secrets or other confidential proprietary by compelling information its production filing with a governmental regulatory agency, PSC, such as the the information’s status as a trade secret or
remains unchanged. In statutory cases where a claimant seeks public from Act,
disclosure under Montana’s Uniform Trade Secrets the claimant’s efforts to secrecy maintain the information’s must be “reasonable under the circumstances.” 30-14-402(4)(b), Section MCA. What is reasonable under the circumstances should entirely different in the context of a utility filing contracts agency, PSC, with an such as the compared exchange to an of information private parties. between words, other might expect one a encompassing more definition of a trade in litigation secret between private parties than would be recognized utility when a files a document with Certainly the PSC. the contracts, fact that although private, negotiated were for the benefit of the public must be taken into consideration. If considering circumstances, after all of the information is by
determined governmental agency reviewing authority qualify property right as a in the form of a “trade secret” which process protections, secrecy warrants due preserved by can be agency through: means, may
reasonable granting include protective orders discovery in connection with proceedings, holding in-camera hearings, sealing action, the records of the and ordering any person litigation involved in the alleged not to disclose an trade prior secret approval. without court added). 30-14-406, (emphasis MCA particular While this applicable statute is to court involving wrongful actions claims of appropriation oftrade secrets under Montana’s Uniform Trade Secrets entities, Act non-governmental similarly same or reasonable means are useful and protecting available to the PSC in property rights comprised process fulfilling of trade secrets in the regulatory providers. duties over service Consistent with our conclusion that the administrative exhausted, must be protected determination of what or is not a interest must be first addressed the PSC in accordance 30-14-402(4)(b),MCA, with Section and supporting case law.
ISSUE FIVE regarding Whether the District Court’s conclusions were correct found were confidentiality of the documents which court constitutionally protected from disclosure. *16 decision, the District Court’s conclusions light In ofour we reverse
¶65 confidentiality the documents and remand to the regarding the of is, Opinion. this That proceedings District Court for consistent with pursue media to still this matter and the issues assuming the wishes shall, turn, in justiciable, remain the District Court remand this determination matter to the PSC for of the documents in whether may disclosed or as a trade question kept must be right Proceedings entitled on protection. secret or other to procedural remand shall take into consideration the concerns set forth Opinion, specifically in this those concerns set forth under our discussion in Issues III and IV. proceedings Reversed and remanded for further consistent with
¶66 Opinion. this REGNIER, COTTER, LEAPHART,
JUSTICES RICE and BARZ,sitting DISTRICT JUDGE for CHIEF JUSTICE GRAYconcur. specially JUSTICE NELSON concurs. I in Opinion separately express my concur our but write to
¶67 aspects decision-namely, concerns on of our two the “affidavit” procedure and our focus on “trade secrets.” Following Rights, the enactment of the federal Bill of James
Madison “popular government popular wrote: without information or it, the means acquiring prologue tragedy is but a to a farce or a Madison, Madison, perhaps Writings both.” James James (Gaillard 1910). Montana, public’s Hunt ed. fundamental know, to Section was drafted and guarantee adopted people to that the would be able to realize what democracy-the Madison an important observed was so to effective ability people acquire information about their popular government and institutions. regulated. highly Before utilities were These utilities were by PSC, justifiably leash and the could rest
kept public on a short being protected knowledge comfortable in the that its interests were Montana’s by agency horsepower an with the to make sure that being managed operated in a cost effective utility/monopolies were and and a fair return to public manner for the benefit of the with shareholders. deregulation. all See part, For the most that ended 1997 with debacle, Chapter
Title Montana Code Annotated. Since failures, year year mismanagement, public has been treated after away greed bankruptcies run premier some of Montana’s Worse, deregulation, utilities. because of along these failures with the salaries, perks, trophy obscene bonuses and homes and the platinum parachutes management of senior being have been are effectively by workers their jobs, subsidized who have lost benefits and pensions; by investments; shareholders have their who lost rate payers enjoyment cheap power replaced by whose has some of been expensive power the most in the northwest. any ability If the is to have to know and understand how its
government exercising remaining utilities, control over the then organizations individuals and must have access to information that is government agencies, including filed these utilities with the PSC. Opinion recognizes reality. Our However, suggest recognize reality. I that we must another
Workers, shareholders, payers, rate and members of the individually, likely effectively are not to have the wherewithal connection filings exercise their constitutional to know in with *17 Though they right so, and the do proceedings before PSC. have the to people struggling living support to make a and their families have few through the time and the resources to volumes of data and comb fight documents filed with the PSC and to with the utilities over what is confidential and what is not. Much less do these Montanans have expertise may the to understand how this affect their lives and finances. reasons, public’s right For these I submit that the to know and the right-freedom press-are
another fundamental constitutional inextricably Opinion in cases such as this. Our discusses intertwined know, right II, the to Section of the Montana Constitution. press guaranteed Freedom of the is under Article Section 7. This provides, pertinent part: press. Freedom of and No law shall be speech, expression, Every or passed impairing speech expression. the freedom of any speak publish shall free to whatever he will on person be liberty. all of that subject, being responsible abuse where, matter, ofthe suggest practical I that as a members know, effectively right exercise their to may capability not have the to to monitor and the media do have the time and resources press the out, analyze publish to ferret and proceedings before the PSC and way, in public. educate the Put another information that will know, media, can, right via the exercising right the own right to know on its behalf press, public’s exercise the freedom
59 Press, MT160, 117- Department, Inc. v. ¶¶ as well. See Associated 117-19, (Nelson, J. Mont. 4 P.3d 117-19 ¶¶ ¶¶ concurring). however, the and media effectively rights, press To exercise these
must access to all of the documents and data filed utilities have And, brings my the PSC. me to concern with the “affidavit” with procedure Opinion. outlined at 56 of our ¶ Any lawyer crafting is an affidavit that will competent capable of proprietary nearly any
render confidential or information that the sure, Opinion requires utilities to disclose. To our choose not be remains, specificity showing to made in the affidavit. The fact be however, specificity term; subjective that is a relative and the PSC’s judgment adequacy ultimately about of the affidavit will imposed objectors-and any ability on the media-without concomitant part persons organizations challenge on the of those and having original underlying affidavit on the basis of access to the data and documents themselves. clearly presumption While we have stated that the constitutional
is that information filed with the PSC is not confidential and that government operations open, and documents should be I fear that the prevalent corporate governmental secrecy culture and will ultimately rights result in a balance where utilities’ to due ownership property carry greater weight far than the publics’ short, publish. suggest to know and the media’s I that procedure” likely our confidence in the triumph hope “affidavit And, experience. surprised procedure provides any over I will be if this meaningful remedy protection or for those who would attack utilities’ confidentiality. claims of I that some believe with innovative utilities, original thought, objectors the PSC and counsel for the media, procedure give could devise a the utilities would temporary protection objectors from disclosure and the and media original data, pending judicial access to the a final decision on review and that to kept to what information must be from *18 public right the the has to know. My Throughout second concern is our on “trade secrets.” focus
Opinion, the Court refers to trade secrets and other “confidential Yet, addressing 4, possibility proprietary information.” in Issue all, that the information at issue is not a trade secret at but some here information, is type explicitly other of confidential not acknowledged. Opinion acknowledges at 61 that While the ¶ may vary depending afforded a trade secret on
60 circumstances, e.g., public private, vs. the Opinion implies also at 62¶ application ofMontana’s appropriate Uniform Trade Secret Act is here. Given that the information at issue here is contract terms parties, between two or more rather than a trade secret held one entity competitors, from its I would hesitate to direct the PSC or the only District Court to look to the Trade Act Secrets on remand. A trade secret is defined under Montana law as follows: computer software, “Trade secret” means information or including formula, device, a pattern, compilation, program, method, that; technique, process, or
(a) independent value, derives potential, economic actual or being generally to, from not known and not being readily by proper by, ascertainable means other persons who can obtain use; economic value from it disclosure or (b) subject is the of efforts that are reasonable under the maintain it secrecy. circumstances to 30-14-402(4), purpose MCA. The whole of the Trade Secrets prevent punish generally Act is to and to “misappropriation.” See Title 30, 14, 4, Chapter Part Montana Code Annotated. Opinion It is not clear from our contract how information of the here,
sort at issue a trade qualifies as secret under this definition nor is it apparent “misappropriate” how the can information that government constitutionally must be filed with the and that is presumed any not to be confidential. I am not aware of claim in this litigation attempting utility’s “misappropriate” that the media Indeed, simply trying gain information. the media is access to is presumptively information that not confidential and that the has a to know. however, say, utility may That is not to that a not have a
protectable
property right
its contracts. “Confidential business
long
recognized
property.” Carpenter
information has
been
as
v. United
(1987),
19, 26,
316, 320,
484
States
U.S.
108 S.Ct.
61 state, municipality, Lynch, 579, 54 or United States. U.S. at S.Ct. at 843. question But if of such information is the first required, disclosure is, type
is to determine what ofinformation it in order to determine the type protections Further, it is if the entitled. protected government,
is nevertheless revealed the next but rather, question misappropriation, utility is not one of but whether the type compensable damages has suffered some has whether there “taking” utility’s been a in the constitutional sense of the for utility justly which the must compensated under Article 29, Moreover, of the Constitution. and while an extensive discussion takings jurisprudence beyond is scope Opinion, of this it is important acknowledge every taking compensable. not See example compare Penn Central Transp. City Co. v. New York (1978), 104, 2646, 438 U.S. 98 S.Ct. 631; 57 L.Ed.2d v. Lucas South (1992), Carolina Coastal Council 505 U.S. 112 S.Ct. 798; Pruneyard
L.Ed.2d
Shopping
(1980),
Center et al. v. Robins
447 U.S.
100 S.Ct.
mistake in This approach time, view. at one and the same over (in broad that the being definition of trade secret is expanded to include rights contract encompassed information not within (in statutory definition), and under inclusive utility may that the have property right in information and contracts that are not trade secrets). caveats, With the above I Opinion. concur in our