Legislators trying to tweak open records laws to their advantage is nothing new, unfortunately. In Utah, a fly-by-night operation to pass a bill that effectively gutted the state’s existing records law was met with stiff opposition from media and citizen groups. A year later, what did both sides learn?
In 2011, Republican Utah legislators concluded immediate action was necessary to protect their privacy rights and legislative interests from the probing eyes of the public and media. They drafted legislation proposing changes to the Government Records Access and Management Act, Utah’s open records law. The main problem would be keeping the media out of the picture until they could pass the bill.
Things came to a head when the 2011 legislative session was winding down. Rep. John Dougall, an influential Utah Republican, presented House Bill 477, ostensibly aimed at protecting the privacy rights of legislators and their constituents. Rep. Brian King, a Democrat, said the bill was intricate and difficult to understand on the first reading. Because the legislators had several other bills to wade through, he said, many legislators did not think much of the bill.
Thankfully, King said, the press was more responsive and created an uproar, calling for the bill’s repeal. This paved the way for improved legislation in 2012, Senate Bill 177. However, it would be impossible to understand the improved legislation without the context behind it, according to King.
In a recent ruling, the Utah Supreme Court attempted to interpret the legislative intent behind ambiguous wording in Utah’s open records law.
The preamble in Deseret News vs. Salt Lake County states equal interest between disclosure and retention of a record. However, in the body of the ruling, the judges read the legislative intent to mean disclosure was equal to or greater than privacy. The wording in the ruling made it seem as if information the public found interesting would be subject to GRAMA. Legislative counsel brought this to the attention of those in the legislature. Some state legislators took this to mean potential public scrutiny of their private and professional lives.
On top of this, years of back-and-forth debates between records requesters and legislators about GRAMA fees and excessively large, expensive or seemingly frivolous freedom of information requests had not yielded any solutions. Frustration was building on all sides of the issue of government disclosure.
The rationale behind H.B. 477 was to propose amendments to GRAMA to protect the legislators’ personal information, according to Jeff Hunt, a Utah Media Coalition attorney who helped with drafting the original GRAMA statute in 1991. But the 2011 H.B. 477 did not end with those protections.
“If you look at what the bill actually did, it would have gutted the entire statute,” Hunt said. “I think that it was a completely wrong-headed piece of legislation.”
Among the alarming aspects of H.B. 477 were the exemption of legislators’ text messages, video chats and instant messages, charging a fee for access to information, and deletion of the wording in GRAMA weighing in on interest disclosure.
Once signed, the law would be effective immediately.
The bill was introduced on March 2, 2011, and passed both the House and Senate by March 4.
MEDIA AND PUBLIC BACKLASH
Republican leadership intentionally held the bill until right before the weekend in hopes that the media’s inevitable outcry would die down by Monday morning.
They didn’t bank on media and freedom of information advocates (including local and national SPJ) rallying forces through social media.
“Of course it’s the ‘never pick a fight with people who buy ink by the barrel’ issue,” King said.
By Tuesday, members of the public and media had joined forces. Save GRAMA, a group of open-records advocates, held a protest at the state capitol in hopes of convincing Utah Gov. Gary Herbert to repeal the law.
However, Herbert signed the bill into law on March 8, 2011, after the Senate and the House voted to change the effective date to July 1 of that year. This would give the legislature time to form a working group and make the necessary changes to GRAMA, advocates of H.B. 477 said.
Once again, the public and media pushed back.
“Legislators were just bombarded left, right and center from constituents,” said Linda Petersen, who served as an intermediary between the Save GRAMA group and press during the process to kill H.B. 477. She is also chairwoman of SPJ’s national Freedom of Information Committee. “The legislature got a major slap in the face from the people of Utah.”
Media outlets wrote and aired stories, a citizens group gathered enough signatures to establish a voter referendum for repeal of the law, and bill opponents held rallies to preserve transparency.
The backlash worked. Three weeks after the bill passed, the Utah House and Senate voted to repeal it.
Republican state Sen. Curtis Bramble, who is on the National Conference of State Legislators and American Legislative Exchange Council, decided to verify whether the Deseret News vs. Salt Lake County ruling, which sparked the fire, actually risked Utah legislative and constituent privacy. He checked with out-of-state colleagues but couldn’t find anyone who supported this position.
Bramble and others, including Herbert, the House speaker and the Senate president, recruited Republican and Democratic legislators, media representatives, freedom of information advocates, media lawyers and local leaders. These individuals made up a working group aimed at establishing common ground within Utah’s open records law.
THE WORKING GROUP
The purpose of the working group was not to enact legislation, Bramble said, but rather to come up with a common consensus on what needed to be done to strengthen transparency, clear up the ambiguity in the legislative intent of GRAMA and strengthen privacy where necessary within the law.
Bramble’s and other Republican leadership’s eagerness for feedback from the public and media on this issue was unprecedented, Petersen said. She served on the cost/timeliness subcommittee as president of the Utah Foundation for Open Government.
A self-proclaimed voice of reason on the committee, Mark Johnson, Ogden City chief administrative officer, said he used his experience in local government to explain the realities of compliance with GRAMA laws to the working group.
His staff spends a considerable amount of time with GRAMA requests, he said, and that can come at the expense of their other duties. In addition, cities need to balance resources to pay for FOI requests with other needs. Because of this he emphasized the need for incremental changes to the legislation. Eventually all the resources people need will be online. But he said the “mammoth task” will take time to make the transition and inform the public.
During the 2011 legislative session, King — part of the simplification and clarification subcommittee and one of the Democrats who voted against H.B. 477 — said he was aware of congressmen who were concerned about whether GRAMA went too far with open disclosure. However, the working group gave the legislators an opportunity to see the wording and see what protections were already available.
It also helped them see how to disclose necessary information without infringing much on their own privacy.
King said the working group was “one of the most positive experiences I’ve had in the Utah state legislature.”
Overwhelmingly, the working group committees concluded GRAMA was fine in its current form. They had a few recommendations for clarification on wording and provisions, and the working group disbanded. During the course of the working group, Bramble opened a bill file and asked committee members for their suggestions on the new legislation.
This new bill strengthened provisions for disclosure. It clarified what is not a record, flipped the transparency test to weigh in favor of disclosure, called for a state records ombudsman and mandated annual online training for offices responding to records requests.
A new bill, S.B. 177, was signed into law March 23, 2012. This time, there was no upheaval from the media or the public.
“The difference between 177 and 477 is the difference between night and day,” King said.
THE FUTURE OF GRAMA
Bramble, the man behind the group and new legislation, seemed content with the outcome but said the evolving nature of technology will likely keep dialogue surrounding GRAMA open. The effects of S.B. 177 will not be immediate, but Bramble thinks the bill provided solid footing for future improvements.
This year in Utah has seen a significant shift in open government and Freedom of Information.
“H.B. 477 has forever changed the face of Utah politics,” Petersen said. “Whether (the legislature) will come back swinging next year, you know, who knows?”
Ogden city administrator Johnson does not see any desire in the current legislature to go near the subject of GRAMA. However, he does think there is room for improvement and consistency in the legislation. For instance, as things stand now, emails are subject to GRAMA, but voicemails of the same subject matter are not.
Although the working group had a good balance and explored the issues well, Johnson said the meetings lacked a sense of urgency because there was not a bill hanging over their heads. Because of this, it seemed as if legislators were just going through the motions during the working group meetings. While the group made some progress, Johnson doubts whether media and government officials will ever come to a mutually satisfactory compromise.
Overall, those in the working group were able to engage in dialogue and see things from others’ viewpoints. This showed true statesmanship, Bramble said, because people with opposing opinions worked toward a common solution.
“It was important for Utah as a state to re-establish some confidence in the transparency of the government and in the process,” he said.
Whiney Evans was the summer 2012 Pulliam-Kilgore Freedom of Information intern for SPJ and Quill. She is a 2012 graduate of Brigham Young University.