Estimated read time: 5-6 minutes
- Utah lawmakers passed bills complicating access to government records, raising transparency concerns.
- The State Records Committee will be replaced by a governor-appointed administrative law judge.
- New laws increase costs for record access and limit public university presidential search transparency.
SALT LAKE CITY — The State Records Committee — the seven-member panel that resolves disputes over whether Utah government records are public or private — has a full agenda for its meeting next week.
The 13 cases on its docket are about evenly split between reporters and members of the public seeking access to documents that various public agencies, including police departments, universities and cities, don't want to release.
The March 20 meeting will be one of the longstanding committee's last before a newly passed law replaces the seven members with an administrative law judge appointed by the governor.
While the Utah Media Coalition, a consortium of news outlets that works to keep government records open, initially opposed the measure, it took a neutral position after sponsor Sen. Mike McKell, R-Spanish Fork, made a key change that kept the heart of the state's Government Records Access and Management Act, or GRAMA, intact.
Still, the Utah Legislature passed bills during its 45-day general session, which concluded last Friday, that will make it more difficult and expensive for Utahns to access government records. Lawmakers created more exceptions to the state's open meeting laws and eliminated public scrutiny of the process for selecting public university presidents.
"It was a tough session," said Jeff Hunt, an attorney who represents the Utah Media Coalition.
Here's a look at some of the bills on government transparency:
Settling records disputes
SB277 replaces the volunteer seven-member State Records Committee with an administrative director who is an attorney to oversee appeals after public records requests are denied by government agencies. The governor will appoint the director to a four-year term and also have the power to remove the director for cause before the term ends.
During the session, McKell said the current records committee process is flawed and broken. He said the panel's decisions are inconsistent because its members are not trained in the law.
Courts upheld the committee's rulings 98% of the time, according to the media coalition.
McKell also said the process is slow and the new law would make it faster. State and legislative audits found few cases in recent years were resolved within the 73 days the law requires and last year the average time was 156 days.
The legislation initially sought to eliminate what's known as the public interest balancing test — in the law since it took effect in 1992 — which is described as the "beating heart" of GRAMA. Without it, government entities could withhold records even if the public interest in disclosure was compelling and the interests favoring secrecy were nonexistent or minimal.
McKell ultimately removed that piece.
Hunt said the coalition is pleased that the bill was amended to safeguard access to public records and ensure that citizens who appeal records denials will have a neutral and independent records appeal officer to hear their cases.
Making access more expensive
HB69 prevents someone who successfully gets access to records on appeal from recovering court costs, unless the government showed bad faith. That means they could incur an expense opposing the government even if it's decided they should have been given the records in the first place.
"The possibility that government would have to pay attorney fees for wrongfully denying a citizen access to public records was a powerful incentive for agencies to comply with the law. HB69 took that away. Now government can deny requests and citizens will have no recourse because going to court is too expensive," Hunt said.
Sen. Calvin Musselman, R-West Haven, the bill's Senate sponsor, said that requirement makes the process "a two-way street so that it goes both ways" when it comes to recovering legal costs. Requiring bad faith to be shown is a "reasonable provision," he said during the legislative session.
Secret presidential searches
SB282 exempts the Utah Board of Higher Education's presidential search committee from public meetings requirements, restricts presidential applications from public view and requires that the board "protect candidate confidentiality." The committee would now recommend three finalists to the board, which would meet in a public meeting only when making a final hire.
Utah law had allowed for the public release of the names of three to five finalists.
Senate Majority Whip Chris Wilson, R-Logan, argued during the session that making the process confidential will attract more high-quality candidates. He said the current process forces the "unnecessary disclosure" and "discussion of their personal details."
Hunt said making the names public allows for further vetting of candidates and could turn up relevant information the search committee missed.
"There's value in allowing the public to have a role in this process," he said during the session. "I understand there's stakeholders on the search committee, but the most important stakeholder is the public."
A crime to destroy documents
SB169 makes it a crime to destroy documents that are subject to a pending public records requests and requires more training of GRAMA records officers.
Sponsor Sen. Wayne Harper, R-Taylorsville, earlier told the Deseret News he wants to clarify the process and make sure it's cleaner, more precise and more understandable.
"I'm trying to make sure that things are open and accessible," he said, adding his proposed legislation makes the process "more transparent and more responsible."
Hunt called it the only bright spot on government transparency to come out of the legislative session.
