HOUSE BILL NO. 112
INTRODUCED BY J. BRUEGGEMAN
AN ACT GENERALLY REVISING LAWS CONCERNING DOCUMENTS TO INCLUDE ELECTRONIC MAIL; PROVIDING THAT ELECTRONIC MAIL USED FOR THE TRANSACTION OF OFFICIAL BUSINESS IS A PUBLIC RECORD; INCLUDING THE UNLAWFUL INTERCEPTION OF ELECTRONIC MAIL AS A VIOLATION OF THE LAW ON PRIVACY IN COMMUNICATIONS; AMENDING SECTIONS 2-3-301, 2-6-101, 2-6-102, 2-6-110, 2-6-202, 2-6-301, 2-6-401, AND 45-8-213, MCA; AND PROVIDING AN EFFECTIVE DATE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 2-3-301, MCA, is amended to read:
"2-3-301. Agency using electronic mail to accept public comment electronically -- dissemination of electronic mail address and documents required -- prohibiting fees. (1) An agency that accepts public comment pursuant to a statute, administrative rule, or policy, including an agency adopting rules pursuant to the Montana Administrative Procedure Act or an agency to which 2-3-111 applies, shall, if the agency is capable of receiving electronic mail from the internet world wide web, provide for the receipt of public comment by the agency by use of that electronic mail system.
(2) As part of the agency action required by subsection (1), an agency shall disseminate by appropriate mediums its electronic mail address to which public comment may be made, including dissemination in:
(a) rulemaking notices published pursuant to the Montana Administrative Procedure Act;
(b) the telephone directory of state agencies published by the department of administration;
(c) any notice of agency existence, purpose, and operations published on the internet world wide web, popularly known as a "website", used by the agency;
(d) the state electronic bulletin board; or
(e) any combination of the methods of dissemination provided in subsections (2)(a) through (2)(d).
(3) An agency that uses electronic mail and creates or receives electronic documents shall, at the request of another agency or person and subject to 2-6-102, disseminate the electronic documents to that agency or person by electronic mail in place of surface mail. An agency may not charge a fee for providing documents by electronic mail in accordance with this subsection.
(4) An agency that receives electronic mail pursuant to subsection (1) shall retain the electronic mail as either an electronic or a paper copy to the same extent that other comments are retained.
(4)(5) As used in this section, "agency" means a department, division, bureau, office, board, commission, authority, or
other agency of the executive branch of state government."
Section 2. Section 2-6-101, MCA, is amended to read:
"2-6-101. Definitions. (1) Writings are of two kinds:
(a) public; and
(b) private.
(2) Public writings are:
(a) the written acts or records of the acts of the sovereign authority, of official bodies and tribunals, and of public officers, legislative, judicial, and executive, whether of this state, of the United States, of a sister state, or of a foreign country, except records that are constitutionally protected from disclosure;
(b) public records, kept in this state, of private writings, including electronic mail, except as provided in 22-1-1103 and 22-3-807 and except for records that are constitutionally protected from disclosure.
(3) Public writings are divided into four classes:
(a) laws;
(b) judicial records;
(c) other official documents;
(d) public records, kept in this state, of private writings, including electronic mail.
(4) All other writings are private."
Section 3. Section 2-6-102, MCA, is amended to read:
"2-6-102. Citizens entitled to inspect and copy public writings. (1) Every citizen has a right to inspect and take a copy of any public writings of this state, except as provided in 22-1-1103, 22-3-807, or subsection (3) of this section and as otherwise expressly provided by statute.
(2) Every public officer having the custody of a public writing that a citizen has a right to inspect is bound to give the citizen on demand a certified copy of it, on payment of the legal fees for the copy, and the copy is admissible as evidence in like cases and with like effect as the original writing. The certified copy provision of this subsection does not apply to the public record of electronic mail provided in an electronic format.
(3) Records and materials that are constitutionally protected from disclosure are not subject to the provisions of this section. Information that is constitutionally protected from disclosure is information in which there is an individual privacy interest that clearly exceeds the merits of public disclosure, including legitimate trade secrets, as defined in 30-14-402, and matters related to individual or public safety.
(4) A public officer may withhold from public scrutiny information relating to individual privacy or individual or public safety or security of public facilities, including jails, correctional facilities, private correctional facilities, and prisons, if release of the information may jeopardize the safety of facility personnel, the public, or inmates of a facility. Security features that may be protected under this section include but are not limited to architectural floor plans, blueprints, designs, drawings, building materials, alarms system plans, surveillance techniques, and facility staffing plans, including staff numbers and locations. A public officer may not withhold from public scrutiny any more information than is required to protect an individual privacy interest or safety or security interest."
Section 4. Section 2-6-110, MCA, is amended to read:
"2-6-110. Electronic information and nonprint records -- public access -- fees. (1) (a) Except as provided by law, each person is entitled to a copy of public information compiled, created, or otherwise in the custody of public agencies that is in electronic format or other nonprint media, including but not limited to videotapes, photographs, microfilm, film, or computer disk, subject to the same restrictions applicable to the information in printed form. All restrictions relating to confidentiality, privacy, business secrets, and copyright are applicable to the electronic or nonprint information.
(b) The provisions of subsection (1)(a) do not apply to collections of the Montana historical society established pursuant to 22-3-101.
(2) Except as provided by law and subject to subsection (3), an agency may charge a fee, not to exceed:
(a) the agency's actual cost of purchasing the electronic media used for transferring data, if the person requesting the information does not provide the media;
(b) expenses incurred by the agency as a result of mainframe processing charges;
(c) expenses incurred by the agency for providing online computer access to the person requesting access;
(d) other out-of-pocket expenses directly associated with the request for information, including the retrieval or production of electronic mail; and
(e) the hourly rate for the current fiscal year for a state employee classified as grade 10, market salary, under 2-18-312 for each hour, or fraction of an hour, after one-half hour of copying service has been provided.
(3) (a) In addition to the allowable fees in subsection (2), the department of revenue may charge an additional fee as reimbursement for the cost of developing and maintaining the property valuation and assessment system database from which the information is requested. The fee must be charged to persons, federal agencies, state agencies, and other entities requesting the database or any part of the database from any department property valuation and assessment system. The fee may not be charged to the governor's office of budget and program planning, the state tax appeal board, or any legislative agency or committee.
(b) The department of revenue may not charge a fee for information provided from any department property valuation and assessment system database to a local taxing jurisdiction for use in taxation and other governmental functions or to an individual taxpayer concerning the taxpayer's property.
(c) All fees received by the department of revenue under subsection (2) and this subsection (3) must be deposited in a state special revenue fund as provided in 15-1-521.
(4) For the purposes of this section, the term "agency" has the meaning provided in 2-3-102 but includes legislative, judicial, and state military agencies.
(5) An agency may not charge more than the amount provided under subsection (2) for providing a copy of an existing nonprint record.
(6) An agency shall ensure that a copy of information provided to a requester is of a quality that reflects the condition of the original if requested by the requester.
(7) This section does not authorize the release of electronic security codes giving access to private information."
Section 5. Section 2-6-202, MCA, is amended to read:
"2-6-202. Definitions. As used in this part, the following definitions apply:
(1) (a) "Public records" includes any paper, correspondence, form, book, photograph, microfilm, magnetic tape,
computer storage media, map, drawing, or other document, including all copies thereof of the record, regardless of physical
form or characteristics, that has been made or received by a state agency in connection with the transaction of official
business and preserved for informational value or as evidence of a transaction and all other records or documents required
by law to be filed with or kept by any agency of the state of Montana.
(b) The term includes electronic mail sent or received in connection with the transaction of official business.
(2) "State records committee" or "committee" means the state records committee provided for in 2-15-1013."
Section 6. Section 2-6-301, MCA, is amended to read:
"2-6-301. Definitions. As used in this part, the following definitions apply:
(1) "Constitutionally designated and elected officials of the executive branch of government" means the governor, lieutenant governor, attorney general, secretary of state, superintendent of public instruction, and auditor.
(2) (a) "Official records" means any paper, correspondence, form, book, photograph, microfilm, magnetic tape,
computer storage media, map, drawing, or other document, including all copies thereof of the record, regardless of physical
form or characteristics, that has been made or received by a constitutionally designated and elected official of the executive
branch of government in transacting his official duties and preserved for informational value or as evidence of a
transaction.
(b) The term includes electronic mail sent or received in connection with the transaction of official duties."
Section 7. Section 2-6-401, MCA, is amended to read:
"2-6-401. Definitions. For the purposes of this part, the following definitions apply:
(1) "Local government" means:
(a) any city, town, county, consolidated city-county, or school district; and
(b) any subdivision of an entity named in subsection (1)(a).
(2) (a) "Public records" includes any paper, correspondence, form, book, photograph, microfilm, magnetic tape,
computer storage media, map, drawing, or other document, including all copies of the record, regardless of physical form or
characteristics, that has been made or received by any local government, in connection with the transaction of official
business, and preserved for informational value or as evidence of a transaction and all other records or documents required
by law to be filed with or kept by any local government in the state of Montana.
(b) The term includes electronic mail sent or received in connection with the transaction of official duties.
(3) "Records custodian" means any individual responsible for the proper filing, storage, or safekeeping of any public records."
Section 8. Section 45-8-213, MCA, is amended to read:
"45-8-213. Privacy in communications. (1) Except as provided in 69-6-104, a person commits the offense of violating privacy in communications if the person knowingly or purposely:
(a) with the purpose to terrify, intimidate, threaten, harass, annoy, or offend, communicates with a person by telephone or electronic mail and uses obscene, lewd, or profane language, suggests a lewd or lascivious act, or threatens to inflict injury or physical harm to the person or property of the person. The use of obscene, lewd, or profane language or the making of a threat or lewd or lascivious suggestions is prima facie evidence of an intent to terrify, intimidate, threaten, harass, annoy, or offend.
(b) uses a telephone or electronic mail to attempt to extort money or any other thing of value from a person or to disturb by repeated telephone calls or electronic mailings the peace, quiet, or right of privacy of a person at the place where the telephone call or calls or electronic mailings are received;
(c) records or causes to be recorded a conversation by use of a hidden electronic or mechanical device that reproduces a human conversation without the knowledge of all parties to the conversation. This subsection (1)(c) does not apply to:
(i) elected or appointed public officials or employees when the transcription or recording is done in the performance of
official duty,;
(ii) to persons speaking at public meetings,; or to
(iii) persons given warning of the transcription or recording.
(d) by means of any machine, instrument, or contrivance or in any other manner:
(i) reads or attempts to read a message or learn the contents of a message while it is being sent over a telegraph line or by electronic mail;
(ii) learns or attempts to learn the contents of a message while it is in a telegraph office or is being received at or sent from a telegraph office; or
(iii) uses, attempts to use, or communicates to others any information obtained as provided in this subsection (1)(d);
(e) discloses the contents of a telegraphic message, electronic mail, or any part of a telegraphic message or electronic mail addressed to another person without the permission of the person, unless directed to do so by the lawful order of a court; or
(f) opens or reads or causes to be read any sealed letter or electronic mail not addressed to the person opening the letter
or reading the electronic mail without being authorized to do so by either the writer of the letter, the sender of the electronic
mail, or the person to whom it the letter or electronic mail is addressed or, without the like authority, publishes any of the
contents of the letter or electronic mail knowing the letter or electronic mail to have been unlawfully opened.
(2) Subsection (1) does not apply to an employer or a representative of an employer who opens or reads, causes to be opened or read, or further publishes an electronic mail or other message that either originates at or is received by a computer or computer system that is owned, leased, or operated by or for the employer.
(2)(3) Except as provided in 69-6-104, a person commits the offense of violating privacy in communications if the
person purposely intercepts a telephonic voice or data communication. This subsection does not apply to elected or
appointed public officials or employees when the interception is done in the performance of official duty or to persons
given warning of the interception.
(3)(4) (a) A person convicted of the offense of violating privacy in communications shall be fined not to exceed $500 or
imprisoned in the county jail for a term not to exceed 6 months, or both.
(b) On a second conviction of subsection (1)(a) or (1)(b), a person shall be imprisoned in the county jail for a term not to exceed 1 year or be fined an amount not to exceed $1,000, or both.
(c) On a third or subsequent conviction of subsection (1)(a) or (1)(b), a person shall be imprisoned in the state prison for a term not to exceed 5 years or be fined an amount not to exceed $10,000, or both."
Section 9. Effective date. [This act] is effective July 1, 2001.
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