Editor's Note -- This story has been updated to remove inaccurate information. The judge has not yet made a final ruling in this case.
A lawsuit challenging the fees charged by the Office of the Montana State Auditor for access to public records is moving forward in Lewis and Clark County district court.
The legal fight between Victory Insurance Co. and the Office of the Montana State Auditor hinges on the Montana law that makes public information accessible and allows public agencies to charge a fee for the "time required to gather public information."
In 2017, Victory requested public information from the Auditor's Office. After some of the documents were provided, Victory filed a lawsuit seeking the remaining documents and alleging that the Auditor's Office "charged excessive amounts in preparing the public information request," including eight hours of attorney review time.
The Auditor's Office then provided the remaining documents and asked the judge to issue a ruling requiring Victory to pay $341.05 in fees.
In an order denying the Auditor's Office's motion for summary judgment, Lewis and Clark County district court Judge Michael McMahon clarifies that the Auditor's Office and other public agencies cannot charge for "attorney review for privilege, regardless of whether it is required for Auditor to comply with other statutory duties." Montana's public agencies are only allowed to charge for the time to gather documents but no more, according to McMahon's order.
In response to the Auditor's Office request for a monetary judgment, McMahon wrote, "This is absurd."
"Courts do not issue monetary judgments in favor of parties which have made neither claims nor counterclaims. The Auditor has made neither and thus cannot possibly recover money in this action," the judge wrote.
McMahon also disagreed with the Auditor's Office's argument that it could could charge Victory for the health insurance costs of staff who were working on the public records requests.
"Moreover, Auditor is obliged to offer health care benefits to all employees working at least half time, therefore Auditor would be obliged to pay any such health care expenses regardless of whether staff was reviewing the request, doing another task, or waiting for work," McMahon writes.