Missoulian Editorial

August 24, 2015


The Montana Department of Justice is the state’s top legal office, staffed with employees who are experts in state law and headed by an attorney general whose legal opinions carry the weight of law.

Yet when it comes to releasing public information, the Department of Justice is now claiming that its staff of attorneys lacks the legal proficiency to interpret the state’s open records laws. Instead, the agency has filed lawsuits against those who seek public records so that a judge can determine which government records, if any, can be kept hidden from the public.

The Missoulian and Associated Press are seeking public documents concerning a former associate medical examiner, Dr. Thomas Bennett, whose work on child autopsies has long been under fire. His work has been directly linked to the wrongful imprisonment of two people in Iowa after he incorrectly determined that shaken baby syndrome was the cause of death in one case. In another recent case in Montana, where he has worked since 1998, he incorrectly determined that head trauma caused the death of a Gallatin County child who actually died of complications from parainfluenza.

Bennett was directed years ago to stop performing autopsies on young children for county coroners in Montana but continued to do so, and his work played a part in the recent resignations of two long-standing and well-regarded chief medical examiners. It also played a role in the Montana Attorney General’s Office’s decision to reorganize the State Medical Examiners Office, request an independent review of an undisclosed number of cases concerning Bennett and notify Bennett that his contract would not be renewed effective July 1.

Still, the Attorney General’s Office is refusing to release emails between state officials concerning Bennett, as well as the results of the investigation, which it received June 19. The office is refusing even to say how many cases were investigated.

That’s because Bennett has objected to the release of this information, and the office is claiming that it cannot determine whether the public’s right to know outweighs Bennett’s right to privacy. Instead, the Justice Department filed a legal petition in late July asking a judge to make the call.

Let’s be clear about what’s at stake here. Bennett, acting in an official state capacity, was authorized to provide information that could directly result in the investigation and prosecution of caregivers for the death of a child. If there is any reason to suspect that his conclusions were incorrect, the people involved in those cases deserve to know it. And the people of Montana who entrusted him with that authority and paid his salary deserve to know it.

Yet instead of turning over information that is clearly of pressing public interest, the agency is attempting to absolve itself of its responsibility to the people of Montana by turning the matter over to the courts. In doing so, it is taking a tack increasingly employed by other government agencies, both state and local, in recent years to keep potentially contentious public information tied up in lengthy – and often costly – legal proceedings.

Montanans are waiting to learn whether any other forensic examinations performed by Bennett were done improperly, what that might mean for the cases that depended on these exams. Details so private they cannot be known by anyone except the state officials who have already seen them can surely be redacted prior to the release of the public documents.

But pushing off the disclosure of public information to the courts, where time and expense are likely to mount, only compounds an already troubling situation. The people of Montana expect the state’s top legal authorities to recognize the public right to know enshrined in the Montana Constitution, and to swiftly release to the public that information which rightly belongs to Montanans. The people of Montana expect justice from the Justice Department.

Missoulian editorial board: Publisher Mark Heintzelman, Editor Matt Bunk, Opinion Editor Tyler Christensen