This article will present the author’s view that it is unnecessary to reconcile Sections 9 and 10 of Article II because the Convention delegates harmonized the two opposing rights within the text of Section 9: “No person shall be deprived of the right to examine documents or to observe the actions and deliberations of all public officials or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy exceeds the merits of public disclosure.” While the Montana Supreme Court has developed its jurisprudence governing open meetings and records by construing Section 9 as a stand-alone right, it has also included a discussion of Section 10’s right of privacy in many of its opinions. As a general proposition, the Court has remained “particularly vigilant and uncompromising in protecting Montanans’ constitutional ‘right to know.’”However, when the Court has failed to vindicate the public’s right to know, it invariably relied on a separate reading of the right of privacy contained in Section 10 and required the requesting litigant to establish a compelling interest to observe the meeting or examine the documents. This “doubling up” has produced anomalies in the enforcement of the right to know and created uncertainty about when the privacy exception to the right of access will be applied to deny access to meetings and documents.
Peter Michael Meloy, Double and Nothing: Open Government in Montana Under Article II, Section 9 And Section 10, 79 Mont. L. Rev. 49 (2018).