Clerks: Massive release of data to Legislature puts Montanans at risk

A bulk transfer of some Montanans’ private information from the state judiciary to the legislative branch’s audit division has alarmed Montana district court clerks, who say they are worried about individual privacy rights.

The clerks, keepers of confidential information ranging from psychological profiles of juveniles to parenting plans and contact information for victims of sexual assault, are objecting to giving the Legislative Audit Division full access to the Montana district court’s system called “FullCourt Enterprise.” The system includes sealed records from the state’s district courts — everything from involuntary commitments to details about foster care cases and sensitive criminal information.

“The Montana Association of Clerks of District Court are very concerned that Montana citizens’ protected, private information may be released, and we are weighing our options,” Carly Anderson, chair of the association, said in an email Thursday to Montana Free Press.

The information is being released to the auditor’s office by the Office of the Court Administrator, run by Dave McAlpin, in an agreement with the legislative auditor. Calls placed to McAlpin’s office Thursday and Friday were unreturned.

The audit division is conducting a performance audit of district court caseloads. The agreement, provided to MTFP by the legislative auditor, cites the Legislative Audit Division’s legally defined ability to inspect books, accounts, activities and records, confidential or otherwise, of a state agency.

The Legislative Audit Division has agreed not to disclose the information, according to the document provided to MTFP.

By definition, the Montana Office of the Court Administrator provides basic management of the judicial branch by overseeing the budget, maintaining information technology systems and coordinating programs like youth court and judicial education, while also overseeing staffing. The job includes publishing court statistics. McAlpin is a former Missoula Democratic legislator and past director of the Court Appointed Special Advocates, or CASA, which advocates in court for the best interests of abused children.

State law governing confidential court information doesn’t imagine a scenario in which sealed records are released without the decision to do so being made by a judge, and the release of records to the audit division concerns Richland County Attorney Tom Halvorson.

Halvorson, a Republican, told MTFP Wednesday that the public’s “privacy is being invaded on a mass scale” under the agreement struck by McAlpin and the Legislative Audit Division. The attorney provided an opinion he wrote after Richland County District Court Clerk Janice Klempel objected to turning over records.

“Instead of submitting the issue to the courts, which would be normal, the Court Administrator has brushed off the clerks and the Constitution in its autocratic decision to divulge the data,” Halvorson wrote.

This isn’t the first time that the legislative auditor’s access to the records has stirred controversy. In 2023, the Montana Legislature attempted to empower its auditor to determine when private information would be redacted, while also making it a crime, punishable by up to six months in jail, for government officials to not produce records. Senate Bill 73 passed the Legislature by a wide margin.

But Gov. Greg Gianforte vetoed the bill, arguing that it shouldn’t be up to “an unelected bureaucrat” to determine if and when an individual’s private information is protected.

Although district court clerks are weighing their options, no legal challenge has been filed. McAlpin indicated to the LAD that the FullCourt Enterprise would be made available after business hours July 24.