9—Petitioners’ Prehearing
The circumstances of this case unequivocally call for issuance of a
writ of mandamus. Respondent MDOL has refused to comply with its clear
legal duty to allow Petitioners to inspect public documents and to provide
requested public information. The MDOL has not claimed, and cannot claim,
any privacy interests. There are no private rights at stake in this case.
The only right at stake is Petitioners’ fundamental right to know.
The Montana Constitution and statutes unambiguously require that
the MDOL shall allow Petitioners to inspect and copy public records and
provide them with copies of requested documents. MDOL has violated its
clear legal duty to do so. Moreover, Petitioners have no other speedy and
adequate remedy for obtaining the requested information. It is, therefore,
proper in this case, to issue a writ of mandamus pursuant to § 27-26-101,
The Montana Supreme Court applies a two-part test to determine
whether a writ of mandamus is available, stating that “[t]he writ is
available when the party who requests it is entitled to the performance
of a clear legal duty by the party against whom the writ is sought, and
where no speedy and adequate remedy in the ordinary course of law is
available.” See State ex rel. Cobbs v. Montana Dept. of Social and Rehab.
Svcs, 274 Mont. 157, 161
, 906 P.2d 204, 206 (1995). There, the Court
remanded the case back to the district court for issuance of a writ of
mandamus because it concluded that Social and Rehabilitation Services
The Montana Supreme Court also found that issuing a writ of
had a clear legal duty under Montana statute, and that the petitioner had
mandamus was proper where the Gallatin County zoning commission
no other speedy and adequate remedy available.
