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1 ,, I...,. 2 r Matthew G. Monforton (MT Bar No MONFORTON LAW OFFICES, PLLC 32 Kelly Court Bozeman, Montana Telephone: ( Facsimile: ( matthewmonforton@yahoo.com Attorney for Plaintiffs GALLATIN COUNTY CLERK OF DISTRICT COURT JEHNIFER BRANDON 20t6 JUL I! Rrf!-, S2 BV FILED ~t?--~-co~p.uiflf MONTANA EIGHTEENTH JUDICIAL DISTRICT COURT, GALLATIN COUNTY TOM BURNETT, ART WITTICH, ROGER WEBB, Plaintiffs, V. ST A TE OF MONT ANA; DEPARTMENT OF PUBLIC HEALTH & HUMAN SERVICES; RICHARD H. OPPER, in his capacity as Director for the Department of Public Health & Human Services, Defendants. Case No. 0 v-1, COMPLAINT I 3 SumrnC>flS --s-31 A \ssued COMES NOW Plaintiffs Tom Burnett, Roger Webb, and Art Wittich, 't'ho allege the following: PARTIES 1. Plaintiff Tom Burnett is a resident of Gallatin County, Montana and is a member of the Montana House of Representatives. 2. Plaintiff Art Wittich is a resident of Gallatin County, Montana and is a member of the Montana House of Representatives. COMPLAINT

2 1 3. Plaintiff Roger Webb is a resident of Yellowstone County, Montana and is a 2 member of the Montana Senate. 3 4 JURISDICTION & VENUE 5 4. Jurisdiction is vested in this Court pursuant to Mont. Code Ann (2, , MCA. et seq., and the Right to Know provision contained in 7 Article II, 9 of the Montana Constitution Venue is proper in the Eighteenth District because Plaintiffs Burnett and 9 Wittich reside in Gallatin County and because the Defendants are state agents (1, MCA STATEMENT OF FACTS In 2015, the Montana Legislature voted to approve SB-405 (Obamacare- 14 Medicaid expansion Plaintiffs believe that over 47,000 Montanans have been added to Montana's 16 Medicaid program since November This number far exceeds the original projection of25,000 and therefore 18 Montana's share of the costs for the program is likely to be far higher than anticipated Given the anticipated depletion of Montana's surplus that is already 20 occurring, Plaintiffs have been seeking to exercise their oversight duties as legislators 21 to ensure that Montanans who have been placed into Medicaid by Defendants are 22 legally qualified to receive Medicaid benefits Ensuring that resources are being adequately accounted for in Montana's 24 Medicaid program is crucial' in determining what modifications need to be made to the 25 state's budget On February 9, 2016, Plaintiffs submitted a request to employees in the 27 state's Legislative Fiscal Division. (A true and correct copy of this is attached 28 as Exhibit 1. 2 COMPLAINT

3 1 12. The request sought documents and public information pertaining to the 2 income and household composition of persons who have applied for Medicaid since 3 November Plaintiffs requested that the information be provided without the names, 5 addresses, or any other information that would enable any individual applicant to be 6 identified On March 3, 2016, Plaintiff Burnett received a letter from DPHHS stating it 8 was reviewing the request and "anticipate[ d] having a response for you in mid-april 9 ( or an update of the progress of compiling and reviewing the records if it will take 10 longer." (A true and correct copy of this letter is attached as Exhibit Defendants did not provide any information in April 2016 to Plaintiff 12 Burnett On May 19, 2016, Plaintiff Burnett sent an to Defendants requesting 14 an update. (A true and correct copy of this letter is attached as Exhibit Defendants responded the following day to "acknowledge we are in receipt 16 of your inquiry from yesterday" and that they would "touch base with staff next 17 week... " (A true and correct copy of this letter is attached as Exhibit Defendants sent another on May 25, 2016, stating that "we are 19 realistically several weeks away from completing" the response to Plaintiffs' request. 20 (A true and correct copy of this letter is attached as Exhibit Defendants have not communicated with Plaintiffs since that time Over five months have passed since Plaintiffs submitted their request to 23 Defendants While the DPHHS is charging full speed ahead developing further 25 legislation for the 2017 session (see HELP Agenda, Exhibit 6, it is refusing to 26 disclose to the public (and legislators the growing costs of the program as modified in 27 the 2015 Obamacare-Medicaid expansion COMPLAINT

4 1 22. Defendants' refusal to provide the requested data is depriving Plaintiffs of 2 their right to know under Mont. Const. Art II, 9 and their right to access to public 3 information under Mont. Code Ann paragraphs CAUSES OF ACTION FIRST CAUSE OF ACTION Denial of Right to Know Article II, Section 9 of the Montana Constitution 23. Plaintiffs incorporate by reference the allegations made in the preceding 24. Article II, 9 of the Montana Constitution states as follows: No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure. 25. Article II, 9 is" 'self-executing' - that is, legislation is not required to give it effect." Bozeman Daily Chronicle v. Bozeman Police Dept., 260 Mont. 218, ,859 P.2d 435,443 (1993; In re Lacy, 239 Mont. 321,325, 780 P.2d 186, (1989 ("[t]he clear language contained within Article II, Section 9, indicates that 24 there was no intent on the part of the drafters to require any legislative action in order 25 to effectuate its terms" COMPLAINT

5 1 26. The term "documents" in Article II, 9, is interpreted "much more broadly" 2 than the term "public writings" in Mont. Code Ann (2. 1 Bryan v. 3 Yellowstone School Dist., 2002 MT 264,,r 35, 312 Mont. 257, 60 P.3d Plaintiffs have made repeated requests of Defendants since February for documents pertaining to the income levels and household composition of 6 applicants for Montana's Medicaid program who have applied since SB-405 took 7 effect in November The documents Plaintiffs seek to examine are subject to disclosure under 9 Article II, Plaintiffs' request does not implicate privacy rights because they have 11 requested that any data identifying individual applicants not be included in any 12 disclosure to Plaintiffs Defendants have deprived Plaintiffs of their right to know under Article II, 14 9, by refusing to provide data in response to Plaintiffs' request for public information 15 concerning the income levels and household composition of applicants for Montana's 16 Medicaid program who have applied since SB-405 to k effect in November SECOND CAUSE OF ACTION Denial of Access to Public Information 19 Mont. Code Ann Plaintiffs incorporate by reference the allegations made in the preceding 21 paragraphs Under Mont. Code Ann (1, every person has a right to examine 23 and obtain a copy of any public information of this state. 24 3'3. "Public information" includes "information prepared, owned, used, or retained 25 by any public agency relating to the transaction of official business, regardless of form, Section (2 of the Montana Code Annotated was repealed in COMPLAINT

6 1 except for confidential information that must be protected against public disclosure under 2 applicable law." Mont. Code Ann ( Plaintiffs have made repeated requests of Defendants since February for public information concerning the income levels and household composition of 5 applicants for Montana's Medicaid program who have applied since SB-405 took 6 effect in November The public information Plaintiffs seek to examine is subject to disclosure 8 under Mont. Code Ann ( Plaintiffs' request does not implicate privacy rights because they have 10 requested that any data identifying individual applicants not be included in any 11 disclosure to Plaintiffs Defendants have deprived Plaintiffs of their right to access to public 13 information under Mont. Code Ann ( 1 by refusing to provide data in 14 response to Plaintiffs' request for public information concerning the income levels and 15 household composition of applicants for Montana's Medicaid program who have 16 applied since SB-405 took effect in November PRAYER FOR RELIEF WHEREFORE, Plaintiffs request the following: a An order from this Court declaring that Plaintiffs are entitled to examine and copy documents and public information concerning the income levels and household composition of applicants for Montana's Medicaid program who have applied since SB-405 took effect in November b An award of reasonable fees and costs; c Such other and further relief as this Court deems just and equitable. 6 COMPLAINT

7 DATED: July 11, C01\.1PLAINT

8 F~m: Tom Burnett Date: Tue. Feb at 2:33 PM Subject: Medicaid enrollment since Nov To: Hollimon, Cynthia aconrady, Scor Quinn Cc: Art Wittich < Roger Webb aholzer, Cynthia, Scot and Quinn: Representative Wittich. Senator Webb and I are the requestors for some information from DPHHS. Could you please forward the request and help track the response? I appreciate it, Tom also: Rep. Wittich, Sen. Webb DPHHS: I request two spreadsheets of anonymous income and household composition of applications for Medicaid since November Applications processed that were found eligible 2} Applications processed that were denied More than people have been added to Medicaid since November 15, so we would expect the two spreadsheets together to have nearly that number of rows. only fewer because some of the applying households would have more than one household member. If it's not practical to report CAC and HealthCare.gov separately, combine them as 11 0nline. Q If it's more practical to combine the two spreadsheets, while presenting the same information, do that. The screenshots below show the column headings for what we are seeking. Please provide the information as an Excel file. electronically, to our addresses. bumett.tom@.gmail,@.m. seoator.yjtticjj@montana.com. AP-P!C?.c!ti~ns Eligible and Enrolled l l webmmt@botman,com., A.!;. ( D _.[.~ Da:1 L-f.!i:..-v ~-~~~ Hv""..:s!~~d L~e -;: L, M0r..r.!-C'!'i,.:ld!l..c~raid ~oa~ir., e-r.rcttdi..""i n-.rou;!-i c;,;., o.c o: Wdl!hur'!..~ Applications Denied..:...:, ~ -.~ 'Da!e etigibility deni1oci 2 3 ;..... s 6 } 7 Thank you, Tom Burnett s C Hous~ho:c income :; in Household D Through OPA, CAC or Hea!thCare. 6ov EXHIBIT 1

9 MONTANA Department of Public Health and Hull:'an Services DPHHS Quality Assurance Division 2401 Colonia! Drive, 3'd Floor+ Helena, MT fax: XXX-XXXX H,.,~hy lwp"'- H"'11Jry ""1nlmlrtrs. ~.. MIIH,,,llllkaa... Steve Bullock, Governor Richard H. Opper, Director March 3, 2016 Dear Representative Burnett: I wanted to let you know that I received your February 9 request for access to public records regarding eligibility for the HELP program from Scot Conrady in the Legislative Fiscal Division. While the infonnation you request does not exist in the format you specified, the Department is reviewing our records and system specifications to see what information is available. We anticipate having a response for you in mid-april (or an update of the progress of compiling and reviewing the records if it will take longer. I've asked Jon Ebelt, DPHHS Public Information Officer, to be your contact for this request, so please do not hesitate to contact him related to this or other requests.for public Information. I hope all is well with you. Sincerely, ~f.~ Mary E. Dalton State Medicaid Director cc: Scot Conrady Jon Ebelt EXHIBIT I ;;_

10 ~ From: Tom Burnett [mailto:burnett.tom@gmail.com Sent: Thursday, May 19, :13 PM To: Holzer, Quinn; Conrady, Scot; Hollimon, Cynthia; Dalton, Mary; Ebelt, Jon; Opper, Richard Cc: Webb, Roger; Art Wittich; Art Wittich Subject: Fwd: Medicaid enrollment since Nov To staff in the fiscal division and DPHHS: We hope the information we requested on February 9th will be available soon. Can we please have a progress report? Thank you, Tom Burnett also Sen. Webb, Rep. Wittich EXHIBIT 1 3 3

11 From: Ebelt, Jon Sent: Friday, May 20, :48 PM To: 'Tom Burnett'; Holzer, Quinn; Conrady, Scot; Hollimon, Cynthia; Dalton, Mary; Opper, Richard Cc: Webb, Roger; Art Wittich; Art Wittich Subject: RE: Medicaid enrollment since Nov Hi Rep. Burnett, Just wanted to acknowledge we are in receipt of your inquiry from yesterday. I'll touch base with staff next week, and then will provide you with a status update on your info request very soon. Have a great weekend! Jon j 19 EXHIBIT '-{

12 From: Ebelt, Jon Date: Wed, May 25, 2016 at 2:55 PM Subject: RE: Medicaid enrollment since Nov To: Tom Burnett "Holzer, Quinn" "Conrady, Scot" "Hollimon, Cynthia" "Dalton, Mary" "Opper, Richard" Cc: "Webb, Roger" Art Wittich Art Wittich Good afternoon Rep. Burnett, Just wanted to give you an update regarding your request. We are making significant progress, but given the complexity of this request, we are realistically several weeks away from completing it. Thanks so much for your patience and we hope to provide you with the requested information very soon. Jon Jon Ebelt Public Information Officer Montana Dept. of Public Health and Human Services Office: ( Cell: ( EXHIBIT I s

13 i Health and Economic Livelihood Partnership Oversight Committee Meeting July 13, pm - 5 pm, Montana Capitol, Room 152 1:00pm Welcome from the Chair-John Goodnow 1:05 pm 1:15 pm I. II. General Overview and Data Update -Jessica Rhoades, DPHHS Montana Report on the Uninsured -Jesse Laslovich, CSI 1:30 pm Ill. Financial Data Report- Marie Matthews, DPHHS 1:45 pm IV. Indian Country Outreach 2:05 pm v. 1. Lesa Evers, DPHHS 2. Kevin Howlett, CSKT 3. Terry Preite, Benefis Health Care Reforms & Innovations 1. Mountain Pacific Quality Health Foundation Hotspotting Project Briefing - Sara Medley, CEO 2. CPC + Briefing - Jessica Rhoades, DPH HS 3. Health Information Exchange -Jon Griffin, BCBSMT 3:00pm Break 3:15 pm VI. Wellness Programs Participation - Peg Hasner, BCBSMT/Duane Preshinger, DPHHS 3:25 pm VII. DLI Data Report - Scott Eychner, DU 3:35 pm VIII. literature Review of Analyses of Medicaid Expansion Impact on Patients, Economy, Providers - Heather O'Loughlin, MBPC 3:45 pm 4:30 pm VIII. IX. Summary Findings and Recommendations to MT Legislature Public Comment EXHIBIT