Estimated read time: 2-3 minutes
- Lawmakers in Utah are considering changes to the state's open records law.
- Proposals include removing a key test balancing public interest and privacy.
- Critics argue changes would hinder transparency and increase costs for citizens.
SALT LAKE CITY — How are your elected leaders spending their time — and your tax dollars — while on the job?
Those are questions public records can help answer.
But under moves lawmakers are considering in their whirlwind session, Utahns' access to public information could be significantly curtailed and the process for obtaining those records changed drastically.
"I don't know if you could call it coordinated, but it is a multi-front assault on the public's right to know, by the Legislature," said First Amendment attorney David Reymann.
It is a multi-front assault on the public's right to know, by the Legislature.
–David Reymann, First Amendment attorney
Multiple bills, including one still under wraps, would undermine core parts of the state's public records law and make it harder for Utahns to see whether the Legislature's doing the public's business, Reymann said.
In a major change, lawmakers are discussing removing a key test used to settle disputes over public records. The test weighs the public's benefit and interest in learning the information against privacy concerns and other valid reasons a government agency might want to keep a record secret.
When cities, police departments or other government agencies grant requests for records, that public interest factor is a common reason behind the decision. Taking it away would tip the scale toward secrecy, said Reymann, who's representing the Utah Media Coalition in negotiations with lawmakers on the measures.
"These aren't just tangential provisions," Reymann said. "They go to the heart of what GRAMA (the Utah Government Records Access and Management Act) is supposed to be."
Sen. Mike McKell, R-Spanish Fork, said he's working on the bill focused on the balancing test. He told KSL that in some cases, too much weight has been given to public interest, when privacy should have factored in more. He declined to cite a specific example.
There are some records that should be protected. And we've missed the mark on that in many cases.
–Sen. Mike McKell, R—Spanish Fork
"I think there are some records that should be protected. And we've missed the mark on that in many cases," McKell said.
Another plan he's proposing: replacing the Utah State Records Committee with an administrative law judge, a move critics say would make the process intimidating and pricier for those who feel they need a lawyer to make their case.
"I just think you get a better result, if you're doing a quasi-judicial activity, a quasi-judicial hearing, having somebody that's law trained, just, it feels like a better process to me," McKell said.
Also under consideration by McKell and his colleagues: preventing those fighting for records from recouping attorney fees if they win in court and a judge determines the government agency's legal position was unreasonable.
This change could make records battles significantly more expensive for citizens and the press, and could scare them away from taking on records battles even if they're fairly certain they'll win in the end, Reymann said.
The ability to recover those fees after winning a case, Reymann said, is "fundamental to incentivizing citizens to fight back against government secrecy."
