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- 2025
69th Legislature 2025 SB 40
- 1 - Authorized Print Version – SB 40
ENROLLED BILL
AN ACT REVISING PUBLIC RECORD LAWS RELATING TO THE SUPREME COURT; REQUIRING THE
RECORDING OF A CLOSED JUDICIAL DELIBERATION MEETING; PROVIDING FOR THE DISCLOSURE
OF JUDICIAL DELIBERATIONS AND CASE INFORMATION AFTER A CASE IS FINAL; AMENDING
SECTIONS 2-3-203, 2-3-212, AND 2-6-1002, MCA; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, the right to know clause found in Article II, section 9, of the Montana Constitution forms the
basis of this bill, and Article II, section 9, of the Montana Constitution does not contain a judicial exception; and
WHEREAS, the Montana Constitution's grant of the general “legislative power” to the Montana State
Legislature is subject to the people’s rights of initiative and referendum. It is clear that part of the legislative
power is the authority to adopt laws protecting the individual rights listed in the Montana Constitution.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 2-3-203, MCA, is amended to read:
"2-3-203. Meetings of public agencies and certain associations of public agencies to be open
to public -- exceptions. (1) All meetings of public or governmental bodies, boards, bureaus, commissions,
agencies of the state, or any political subdivision of the state or organizations or agencies supported in whole or
in part by public funds or expending public funds, including the supreme court, must be open to the public.
(2) All meetings of associations that are composed of public or governmental bodies referred to in
subsection (1) and that regulate the rights, duties, or privileges of any individual must be open to the public.
(3) The presiding officer of any meeting may close the meeting during the time the discussion
relates to a matter of individual privacy and then if and only if the presiding officer determines that the demands
of individual privacy clearly exceed the merits of public disclosure. The right of individual privacy may be waived
by the individual about whom the discussion pertains and, in that event, the meeting must be open.
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69th Legislature 2025 SB 40
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ENROLLED BILL
(4) (a) Except as provided in subsection (4)(b), a meeting may be closed to discuss a strategy to
be followed with respect to litigation when an open meeting would have a detrimental effect on the litigating
position of the public agency.
(b) A meeting may not be closed to discuss strategy to be followed in litigation in which the only
parties are public bodies or associations described in subsections (1) and (2).
(5) (a) The Subject to subsections (5)(b) and (5)(c), the supreme court may close a meeting that
involves judicial deliberations in an adversarial proceeding.
(b) All closed meetings of the supreme court must be recorded by electronic means with the
recording constituting the official record of the meeting. A written record of the meeting must also be made and
must include the information specified in 2-3-212(2) and (3), including all documents considered by the
supreme court.
(c) The electronic recording and written record provided for in subsection (5)(b) must be available
for inspection by the public after the case that was subject to closed judicial deliberations becomes final. The
supreme court may redact confidential information, as that term is defined in 2-6-1002.
(6) Any committee or subcommittee appointed by a public body or an association described in
subsection (2) for the purpose of conducting business that is within the jurisdiction of that agency is subject to
the requirements of this section.
(7) A case becomes final after the time for any further review of the supreme court's order to the
United States supreme court has expired or the time for any further review by any other court with subject-
matter jurisdiction over the case has expired. If another court undertakes review of the case, it becomes final
when all the issues reviewed are settled and no other issues can be reviewed further in any other court."
Section 2. Section 2-3-212, MCA, is amended to read:
"2-3-212. Minutes of meetings -- public inspection. (1) Appropriate minutes of all meetings
required by 2-3-203 to be open must be kept and must be available for inspection by the public. If an audio
recording of a meeting is made and designated as official, the recording constitutes the official record of the
meeting. If an official recording is made, a written record of the meeting must also be made and must include
the information specified in subsection (2).
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(2) Minutes must include without limitation:
(a) the date, time, and place of the meeting;
(b) a list of the individual members of the public body, agency, or organization who were in
attendance;
(c) the substance of all matters proposed, discussed, or decided; and
(d) at the request of any member, a record of votes by individual members for any votes taken.
(3) If the minutes are recorded and designated as the official record, a log or time stamp for each
main agenda item is required for the purpose of providing assistance to the public in accessing that portion of
the meeting.
(4) Any time a presiding officer closes a public meeting pursuant to 2-3-203, the presiding officer
shall ensure that minutes taken in compliance with subsection (2) are kept of the closed portion of the meeting.
The Except as provided in 2-3-203(5)(c), the minutes from the closed portion of the meeting may not be made
available for inspection except pursuant to a court order."
Section 3. Section 2-6-1002, MCA, is amended to read:
"2-6-1002. Definitions. As used in this chapter, the following definitions apply:
(1) "Confidential information" means information that is accorded confidential status or is prohibited
from disclosure as provided by applicable law. The term includes information that is:
(a) constitutionally protected from disclosure because an individual privacy interest clearly exceeds
the merits of public disclosure;
(b) related to judicial deliberations in adversarial proceedings of any court other than the supreme
court;
(c) necessary to maintain the security and integrity of secure facilities or information systems
owned by or serving the state; and
(d) designated as confidential by statute or through judicial decisions, findings, or orders; or
(e) related to judicial deliberations in adversarial proceedings of the supreme court until the case at
issue becomes final as provided in 2-3-203(7).
(2) "Constitutional officer" means the governor, lieutenant governor, attorney general, secretary of
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state, superintendent of public instruction, or auditor, who are the constitutionally designated and elected
officials of the executive branch of government.
(3) "Constitutional officer record" means a public record prepared, owned, used, or retained by a
constitutional officer.
(4) "Essential record" means a public record immediately necessary to:
(a) respond to an emergency or disaster;
(b) begin recovery or reestablishment of operations during and after an emergency or disaster;
(c) protect the health, safety, and property of Montana citizens; or
(d) protect the assets, obligations, rights, history, and resources of a public agency, its employees
and customers, and Montana citizens.
(5) "Executive branch agency" means a department, board, commission, office, bureau, or other
public authority of the executive branch of state government.
(6) "Historic record" means a public record found by the state archivist to have permanent
administrative or historic value to the state.
(7) "Local government" means a city, town, county, consolidated city-county, special district, or
school district or a subdivision of one of these entities.
(8) "Local government records committee" means the committee provided for in 2-6-1201.
(9) "Permanent record" means a public record designated for long-term or permanent retention.
(10) "Public agency" means the executive, legislative, and judicial branches of Montana state
government, a political subdivision of the state, a local government, and any agency, department, board,
commission, office, bureau, division, or other public authority of the executive, legislative, or judicial branch of
the state of Montana.
(11) "Public information" means information prepared, owned, used, or retained by any public
agency relating to the transaction of official business, regardless of form, except for confidential information that
must be protected against public disclosure under applicable law. The term includes information prepared,
owned, or retained by the supreme court, regardless of form, relating to an adversarial proceeding after the
case at issue becomes final as provided in 2-3-203(7).
(12) "Public officer" means any person who has been elected or appointed as an officer of state or
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local government.
(13) (a) "Public record" means public information that is:
(a)(i) fixed in any medium and is retrievable in usable form for future reference; and
(b)(ii) designated for retention by the state records committee, judicial branch, legislative branch, or
local government records committee.
(b) The term includes judicial deliberations of the supreme court pursuant to 2-3-203(5).
(14) "Records manager" means an individual designated by a public agency to be responsible for
coordinating the efficient and effective management of the agency's public records and information.
(15) "State records committee" means the state records committee provided for in 2-6-1107."
Section 4. Effective date. [This act] is effective October 1, 2025.
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I hereby certify that the within bill,
SB 40, originated in the Senate.
___________________________________________
Secretary of the Senate
___________________________________________
President of the Senate
Signed this _______________________________day
of____________________________________, 2025.
___________________________________________
Speaker of the House
Signed this _______________________________day
of____________________________________, 2025.
SENATE BILL NO. 40
INTRODUCED BY G. HERTZ
BY REQUEST OF THE SENATE SELECT COMMITTEE ON JUDICIAL OVERSIGHT AND REFORM
AN ACT REVISING PUBLIC RECORD LAWS RELATING TO THE SUPREME COURT; REQUIRING THE
RECORDING OF A CLOSED JUDICIAL DELIBERATION MEETING; PROVIDING FOR THE DISCLOSURE OF
JUDICIAL DELIBERATIONS AND CASE INFORMATION AFTER A CASE IS FINAL; AMENDING SECTIONS 2-
3-203, 2-3-212, AND 2-6-1002, MCA; AND PROVIDING AN EFFECTIVE DATE.