Transparency at risk? Utah lawmakers consider revamp of public records law

SALT LAKE CITY — March 10, 2011, was like no other final day of the Utah Legislature's annual session. Hundreds of Utahns streamed into the Capitol in the waning hours before adjournment singing, chanting and banging drums as they marched in protest around the rotunda. Liberals, conservatives and everyone in between united in outrage over an 11th-hour bill on the fast-track to pass before the clock struck midnight.

No negotiation, no amendments, no debate.

What was this legislation that struck a nerve so deep that it brought people of all political stripes together?

Lawmakers' attempt to gut Utah's premier sunshine law — the Government Records Access and Management Act, or GRAMA.

Passed in 1991, the law provides the public with the right to access information maintained by governmental entities in Utah while also setting forth guidelines for managing and restricting access to certain sensitive or private information.

"You're dredging up an old, bad memory," said former Gov. Gary Herbert, who was in office and signed the infamous HB477 that riled the state.

"How it was handled was probably one of the biggest errors the Legislature made and my mistake was trying to help them out of that mess that they created for themselves."

Fourteen years ago, the Republican-dominated Legislature wanted to eclipse the sunshine law.

Legislative leaders had decided "to send a message to the press, wall off their own potentially embarrassing emails and text messages and roll back public access. ... Drafted in secret with zero public input, the bill was released, passed in both the House and Senate and signed by the governor — all in less than 72 hours," as longtime Salt Lake City media attorney Jeffrey Hunt wrote in a 2021 column published by the Deseret News.

But lawmakers underestimated the backlash, not just from the media, but from the public, who make the vast majority of the requests for information under GRAMA. Utahns care deeply about keeping government open, transparent and accountable to the people it serves. Citing a "loss of public confidence," Herbert called lawmakers into special session just two weeks later to repeal HB477.

"I don't think there's any question, never should have been any question before or since, that people want to have access, have openness and transparency to what their elected officials are doing," the former governor said in a recent interview.

Besides offering access to a host of public records, GRAMA created an appeals process for when a government agency denies a request. The State Records Committee — a seven-member panel comprised of the director of the Division of Archives and Records Services, a Utah League of Cities and Towns representative, two citizens, a media representative, a private sector records manager and an electronic records and databases expert — settles the dispute. If the parties don't like the committee's decision, they can take the case to state court.

Lawmakers targeting GRAMA again

State lawmakers are this year once again targeting what some observers have deemed a model for open records laws.

At least two bills under consideration in the current legislative session — SB277 and HB69 —could affect public access to information under GRAMA.

Senate Majority Assistant Whip Mike McKell's SB277 would do away with the "balancing test" used to determine whether public interest warrants releasing records that would otherwise be classified as protected or private. The Spanish Fork Republican told reporters that there are some records that need to be protected and "we've missed the mark on that in many cases."

The public interest balancing test — in the law since it was enacted — is the "beating heart" of GRAMA, according to the Utah Media Coalition, a consortium of news outlets that works to keep government records open. Without it, government could withhold records even if the public interest in disclosure was compelling and the interests favoring secrecy were nonexistent or minimal.

SB277 would also replace the State Records Committee with a single attorney who has "knowledge and experience relating to government records" and is appointed by the governor and approved by lawmakers. The person's title would be records office director. The bill notes the governor can remove that person "with or without cause."

McKell rejected the idea that the seven-member panel brings diverse perspectives to records disputes. He said following the law is the priority and having somebody with legal training "just it feels like a better process to me." An attorney, he said, would be bound by ethical rules and the Utah State Bar.

"I want the law followed. When you look at the seven members today, that just leads to subjectivity," McKell said. "I want some consistency."

Courts have affirmed the records committee's decisions 98% of the time, so law-trained judges think the panel is getting it right, according to the Utah Media Coalition.

Joel Campbell, an associate teaching professor at the Brigham Young University School of Communications and an expert on sunshine laws, said the records committee has especially benefited ordinary people who can't afford to go to court to wage a legal challenge to denial of access to records.

For instance, students at Weber State University had questions about the school's student body election some years ago but their records request was denied. The committee allowed them access to information that forced an election do-over.

Under the proposed SB277, the records office director would have total discretion to reject holding an appeals hearing where someone could speak to a request, relying instead solely on paperwork submitted with the request for an appeal.

The bill also lets a court order confidential treatment for a record that isn't covered by a GRAMA exception if the judge believes there is a compelling reason. The judge would not be allowed to consider whether there's a compelling public reason to disclose the record or try to weigh the for-disclosure, against-disclosure interests even if the record has never been classified as not public.

SB277 will be discussed Tuesday at 4 p.m. by the Senate Government Operations and Political Subdivisions Committee at the Capitol.

First Amendment attorney David Reymann called McKell's proposal "as bad as I've seen in over a decade. And the attitude toward the public and the public's right to know and the public's ability to hold the Legislature accountable for what it is that they do is the most cavalier that I've seen," per KSL-TV.

Hunt said the bill is a solution in search of a problem, "unless you think the problem is open and transparent government." Utahns have a right to know how their elected officials and government entities are conducting the public's business, he said.

"This bill seriously undermines that right by abolishing the State Records Committee and prohibiting release of records even if a court determines there is no good reason to keep them secret," he said.

The Utah Media Coalition issued a statement over the weekend noting that the State Records Committee has served the public well. The group said that the public interest balancing test protects the public's right to know. "Public transparency laws should serve the public interest, not discard it in favor of categorical secrecy, which is what SB277 does," per the statement.

The group noted a number of cases where the public interest balancing test led courts to order release of records. They include the names of lobbyists and subcontractors who received more than $5 million in taxpayer money, records in a criminal investigation of campaign finance violations, public corruption charges against an elected official, a lethality assessment protocol record, sexual harassment allegations in a government office and records related to police shootings.

Another bill, HB69, sponsored by Rep. Stephanie Gricius, R-Eagle Mountain, could also affect the public's access to government records. Among provisions, it prevents someone who successfully gets access to records on appeal from recovering what it cost them to make that appeal, 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 access in the first place.

When GRAMA took effect in 1992, it was lauded for achieving balance between transparency and the need to keep some records confidential, such as those involving trade secrets or the identity of confidential informants. In 2005, a joint study by the Better Government Association and Investigative Reporters and Editors ranked Utah No. 3 in the U.S. for its records-access law.

Not all of the bills being proposed were criticized by the media coalition.

Sen. Wayne Harper, R-Taylorsville, has introduced legislation, SB163, that requires government entities to annually review their records retention policies and make sure they're complying with the law. It contains penalties for those that don't.

Harper 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 the annual review provision good public policy. The coalition supports the bill in its current form.

Changing the law midstream

The State Records Committee has overturned some government agency's denials of records requests, which has riled legislators. It's not unusual for legislators to make changes to GRAMA when they disagree with a records committee decision or when a government agency doesn't want to share requested records. It happened at least twice last year.

The Deseret News sought college athletes' name, image and likeness agreements between athletes and third parties submitted for review to public universities in the state, largely as a check against undue influence and in protection of Title IX and women's sports. The schools denied the request and the case made its way to the records committee. That panel unanimously ruled in the newspaper's favor and ordered the schools to release the records. The universities appealed to state court.

In the meantime, the Legislature passed a law making name, image, likeness deals private and made the law retroactive, voiding the records committee's order that the schools divulge the records. That took the appeal out of the court's purview, as well, and slammed the door on challenging the denial.

Interestingly, a bill this year would make direct name, image, likeness payments from universities to athletes public records subject to GRAMA. HB449 would treat direct payments differently because the contract doesn't involve a third party such as a business that compensates an athlete for name, image, likeness.

However, a new version of the bill out Monday does away with that provision.

So legislative proposals can go both ways, though most often the attempt is to decrease rather than increase access.

In another instance, KSL-TV was in a prolonged legal fight with former Attorney General Sean Reyes over his work calendar. While a judge ruled in the station's favor, lawmakers passed a bill concealing all elected officials' schedules going forward.

"We work with legislators and leaders in the Senate and House to establish fair procedures for public access that results in good law and transparency. GRAMA and the records committee are good results of that work," said Doug Wilks, Deseret News executive editor. "But there's no other way to say it: Lawmakers who disagreed with the decisions of the records committee and didn't want to leave it up to the courts said, 'Let's just change the law.'"

Hunt fears transparency and open access to records in Utah is dying from a long series of alterations that makes how government functions more opaque and dims the vitality of the sunshine law.

Slowly obscuring transparency

GRAMA was created by a committee that included members of the public, the Legislature and other stakeholders, such as media representatives, local governments and nonprofits. It originally contained about 50 exceptions — categories of information that were not deemed publicly accessible because their release could cause tangible harm.

In the Open Government Guide, Hunt and other attorneys from Parr, Brown, Gee and Loveless note two constitutional rights that were recognized by the Legislature within the law: "the public's right of access to information concerning the conduct of the public's business and the right of privacy in relation to personal data gathered by governmental entities." Lawmakers also recognized that the public's interest is served by restricting access to some records.

But when "countervailing interests" are about equal, the law is supposed to lean toward making records available.

Former Utah legislator Curt Bramble served 24 years in the state Senate before retiring last year. Bramble told the Deseret News that earning Utah GRAMA Watch's "Shining Light" Award in 2012 was among the highlights of his time as a state lawmaker.

That distinction came in the aftermath of HB477, thanks to a Bramble-sponsored bill from the 2012 legislative session, SB177, that made improvements to GRAMA. Changes included clarifying distinctions between the personal and public calendars of public officials and strengthening a test that gave more weight to the public-interest factor in open records decisions.

There are now more than 230 exceptions to GRAMA, created by amendments that add new categories to the information the public can no longer learn. That count only includes information set behind a wall of secrecy by the act itself. There are other rules that govern different types of information, like child welfare records or those pertaining to consumer complaints to the Division of Consumer Protection. At least 30 statutes have restricted access to information outside of GRAMA.

There's a lot the public now has no right to know. Lawmakers keep adding items to the list.

Transparency is fading, Hunt told the Deseret News, the balance tipping to government secrecy.

"You just keep cutting and cutting and cutting, creating all these exceptions, and eventually the patient dies," Hunt lamented, likening the situation to "death by a 1,000 cuts."

Kate Lahey was one of the principal authors of the original GRAMA legislation and a private lawyer working on behalf of a consortium of media outlets when the bill was crafted.

The work group that collaborated on the law in the early 1990s included a wide range of stakeholders representing both public and government interests, Lahey said. The panel's task was to craft rules that guaranteed robust public records access while ensuring appropriate protections where they were necessary.

Lahey said a common dynamic in that work was for state agencies to bring records forward that they believed should be "locked down" in their entirety from public access. When the work group dug into the specifics of those concerns, Lahey said it was frequently determined that only an aspect of the document, like the name of an individual or company or a reference to some proprietary information, justified redaction and the majority of the record remained accessible for public review.

She said among the scores of exceptions that have been added since the passage of GRAMA, there are some that are "probably appropriate" but she believes many of the carve-outs represent a grievous erosion of the public's right to access records that account for the work and conduct of public officials and agencies.

For example, state lawmakers have added additional exceptions under GRAMA restricting access to, among other things:

• Official calendars of public officials;
• Garrity reports, which involve internal investigations after police shootings;
• Initial police reports;
• Police body camera footage, particularly in cases deemed sensitive or ongoing;
• Correspondence and internal memos between government agencies about policy recommendations or the decision-making process;
• Information regarding "at risk government employees;"

"I'm really concerned about the constant efforts to restrict access," Lahey told the Deseret News. "There seems to be a deep opposition on the part of legislators that the public really shouldn't be putting its nose in that sort of business. And that's dangerous. Government operates better with more public involvement … it's not like we don't have an investment in how things are run."

The outcry from the public in 2011 — not just the media or organizations like Eagle Forum and the American Civil Liberties Union — was so ferocious that elected officials walked the action back almost immediately. Members of the public clearly felt protective of their right to know and to govern the governing bodies created to represent them. They expressed it loudly with public protests and complaints about the action.

Confidence in government

Records that are not deemed part of GRAMA don't even have to be kept, Hunt said. If the rules were to change to favor transparency, they might not even be available.

Garrity reports — the internal investigations after a police shooting or other serious law enforcement event — are among records walled off from public access, a legislative move taken just two years ago. Before that, they were public, though they have never been admissible in court. That possibility was removed to encourage officers to be open and honest about the event being examined.

"That's different than saying the public can't find out about them," Hunt said of making them inadmissible in court. He added that Garrity reports are designed to help law enforcement improve procedures and learn from interactions. "How is the public supposed to know whether they're actually learning from these and putting new procedures in place if you don't get those kinds of records?"

Although members of the public testified the Garrity process should be open, Hunt said the Legislature walled it off.

Along the way, access to body camera footage in some cases, notes or internal memos that are part of judicial (or quasi-judicial) deliberation and booking photos, among other things, have been removed from public view.

Some GRAMA-related changes may be prompted by a constituent request or complaint, as well. Harper told the Deseret News that SB163's origin story began with a conversation with a constituent who was displeased with an experience in an open records appeal.

When the United Kingdom was considering its own freedom of information law, the biggest selling point was that it would improve both confidence in government and government systems, Campbell said. The U.K. pondered academic research showing freedom of information raises accountability and lowers corruption, improves the quality of decision-making and how the public understands it, and also increases public participation. It also, researchers noted, improves security.

"Transparency I think is good," Campbell said. "We call them sunshine laws. We say sunshine and showing how things happen is good. I think it also makes sure there's balance in government."

But Campbell said the other freedom of information law, the Open Meetings Act, has also seen its list of exemptions grow. It started out with about nine, he said, and now there are at least 20.

In Utah, Campbell can think of only one time lawmakers expanded access to records or broadened what counts as public information. Usually, they narrow it down. The exception was when the Legislature decided information on the five finalists for any Utah university presidential search must be open. While critics of the move predicted candidates might drop out rather than have current employers know they're considering a job change, it allows people to see how diverse the candidate pool is and what those making the decision seek. And Utah universities have never not hired a suitable candidate because the process was open.

Campbell remembers when young reporters on the "night police" beat regularly looked through police reports at the local police station to see what had happened that day in their communities. Access to information about arrests and crimes and related issues that the public unquestionably cares about was available.

"I've seen police reports kind of disappear," Campbell said. "Instead, police departments may write their own summary, containing what they want to put in it. It's like a press release," he said. "It's not the original police report. We can no longer get access to that."

If someone does manage to get an initial report, it's often heavily grayed out and it's hard to tell what kind of information has been redacted or if the redaction is appropriate, he added.

He said access should be a concern for people who care about safety in their communities, among other reasons.

Raising the cost of open government

Government bodies also sometimes block records access simply by making it very expensive to obtain. GRAMA allows for reasonable charges to copy material and even for staff time, but reasonable seems subject to interpretation.

Campbell said he knows of cases where reporters were told the cost would be thousands of dollars. He cites a specific recent request where $7,300 was the announced charge. Most members of the public — who are again the most apt to make a public records request — can't afford that. There are provisions for fee waivers and the State Records Committee can allow that, too. But the panel itself is under attack.

Sign of the times or of politics?

When asked about the increasingly long list of exceptions that have been passed by Utah lawmakers since 1992's landmark GRAMA legislation, Bramble said he believes many changes have been attempts to keep up with innovations in technology.

"This is a statute that must remain current as technology, business models and processes change," Bramble said. "Look at calendars as an example. When GRAMA was introduced, most of us were still using Franklin day planners. No one was anticipating body cameras, Ring doorbells or cellphone text messages."

But Bramble also acknowledged that some of the backslide in records access and government transparency could be due to the "ebbs and flows of the political landscape."

He said the current effort to remake the State Records Committee could be a response to some manner of perceived bias or tendency and that "sometimes perception becomes reality."

"When there is a perception from various political factions, and this is true whether you're a liberal or conservative, when there's a perceived weaponization of government, a perceived slanting or tipping the scales based on particular membership or affiliation, you lose confidence in the system," Bramble said.

Utah was at the forefront, protecting the public's right to know from the moment GRAMA was enacted, said Katharine Biele, president of the League of Women Voters of Utah. From the beginning, however, tension has existed between public access and the right to privacy, she said.

Parent organization the U.S. League consistently supported open meetings and open records as a "hallmark of our democracy." Biele shared the group's position, adopted in 1988. It heralds the public's right to know, understand and be part of decisions around health, the environment and education, among other issues.

While much of the statement focuses on environmental issues, it states that "public records should be readily accessible at all government levels." And it adds, "Mechanisms for citizen appeal must be guaranteed, including access to the courts. Due process rights of the affected public and private parties must be assured."

Rick Hall, whose career as a Utah journalist spanned four decades before his retirement as managing editor of the Deseret News, called the right to know when it comes to government records "part and parcel to our Republic," adding that "if we're not an informed people we are in trouble."

Hall added that all the institutions, including those of the government and the media need to be accountable.

Bramble echoes that. The longtime senator said he believes transparency is a critical element of government operations and that with "freedoms and authority comes responsibility and accountability."

"I think our system provides for enduring policies to begin with," Bramble said. "We have these skirmishes, but long term, the system tends to survive and prevail. I think what we're seeing now is a manifestation of a whole bunch of dynamics happening in the political landscape."

All or nothing solution?

Lahey said she believes some of that all-or-nothing viewpoint has been in play when it comes to the creation of new GRAMA exceptions, an approach in which entire records or categories of records are deemed out of reach for public access, due to one objectionable item or subset of information.

"I think sometimes the Legislature does the same thing," Lahey said. "It gets agitated about the release of some part of a record, or doesn't like the fact that they are not winning with the records committee, and there's a knee-jerk reaction to just shut things down."

Lahey said the constituent response to 2011's HB477, and what she's heard from members of the public before and since that time, reflects an ongoing concern about government transparency issues and public records access and it's one she believes transcends the lines of partisan politics.

"I think people do believe that access to public records is important and I also think trust in our Legislature has been greatly eroded, and appropriately so," Lahey said. "It's a bipartisan sentiment, as far as I can tell. Both Democrats and Republicans, liberals and conservatives, think they should have access to and be able see what the government is doing.

"And they don't like it when things are concealed."

Correction: An earlier version named Sen. Calvin Musselman, R-West Haven, as the sponsor of HB69. The bill is sponsored by Rep. Stephanie Gricius, R-Eagle Mountain, but Musselman is the floor sponsor.

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