The State of Montana's government is in budgetary crisis.
On Tuesday of last week, after revenues came in $75 million lower than projected, the state announced severe cuts, including $30 million from the fire fund when the state is literally burning up, $14 million from the already strapped Department of Public Health and Human Services, heavy cuts to the state library and the state Historical Society, and assorted others.
As Democrats blamed the Republican-controlled Legislature and the Republicans blamed Budget Director Dan Villa and Governor Steve Bullock, Lee Montana Newspapers decided to examine the interactions that produced the results we got from the legislative session. So we filed public records requests for communications between the governor, Villa, and legislators — including text messages between them. Obviously, communications between legislators and the two state officials would be public records, since they are the building blocks of policy and governmental action.
The state turned over some texts between Bullock and legislators. But we were told, "Mr. Villa … does not keep his text messages."
This is a small piece of a far bigger issue. State government policies on records retention have been widely criticized by transparency advocates as inadequate. State law calls for a qualitative test: if a communication is an invitation to lunch or some other triviality, retention is not required. But messages that contain substantial information about government are required by law to be retained.
The law does not specify that public records don't have to be retained if it's inconvenient. It does not specify that if conversations between public officials about public business are in an ephemeral format, nobody has to worry about hanging on to them.
When a reporter pointed out to Eric Stern, an attorney whose title is senior adviser to the governor, that state law required retention of messages about state business, he responded, "I am not aware of any Montana state agency that requires state employees to retain their text messages on personal devices. Text messages are transitory and ephemeral communications with a high expectation of privacy for the sender and receiver, and they occur almost always on personal devices."
We believe that's the problem. Whether state business is conducted on a desktop computer in a state office or a personal device, its value — and required retention — is the same. Text messages are indeed transitory and ephemeral, but no public official should have a high expectation of privacy when conducting state business.
Stern also said that state retention guidelines "are for public records, not ephemera such as text messages." Again, there is no distinction in the law for the nature of the technological platform upon which state business is conducted.
When we asked Mr. Stern if any steps were going to be made to recover texts between Villa and legislators, his response descended from opposition to arrogance.
"Confirmed, we will not ask Mr. Villa to do that. Nor would we make him go to the garbage dump to retrieve a sticky note he might have thrown away, containing a short message."
Gov. Bullock has given consistent lip service to transparency in government. He also has national political aspirations. Neither are advanced by such an approach from an aide.
And given the budget circumstances, we wonder if the $41 an hour Mr. Stern is being paid by taxpayers might be better applied toward hiring two more Child Protective Service case workers.
As opposed to a snarky "senior adviser" used to stonewall reporters.