Estimated read time: 5-6 minutes
- Utah lawmakers passed HB69, raising the standard for awarding attorneys' fees in public records disputes.
- Critics argue the bill will decrease government transparency and increase costs for public records access.
- The bill awaits Gov. Spencer Cox's decision and could take effect on May 7.
SALT LAKE CITY — Utah lawmakers gave final passage to a bill that raises the bar for citizens to win attorneys' fees when challenging a denied request for public records, a move critics say will make the government less transparent.
HB69 was significantly altered last week to include a provision that only allows a party to recover attorneys' fees if one of the parties acts in "bad faith," which First Amendment advocates argue will make it more expensive for members of the public to obtain government documents.
Lawmakers spent just over six minutes combined considering the bill on the Senate and House floors after it was changed before it passed the House Wednesday 54-18. Four House Republicans voted with all House Democrats against HB69, after it received unanimous support from the Senate on Tuesday. It now heads to Gov. Spencer Cox to be signed into law or vetoed.
Rep. Stephanie Gricius, R-Eagle Mountain, said the new version of her bill "does not restrict access" to records covered by the state's Government Records Access and Management Act (GRAMA), saying it simply changes the standard for awarding attorneys' fees in response to a denied request.
"These are public funds," she said. "This is not the government hoarding money, saying it's ours. We are responsible for those taxpayer dollars."
Rep. Jordan Teuscher, R-South Jordan, spoke in support of the bill, calling it a "compromise," and said the state's balancing test for determining if a record is in the public interest means that government entities could lawfully restrict access to a record but still be liable to pay fees if a judge determines the public's interest in the record outweighs the government's desire for secrecy.
"What I like about this compromise is that it doesn't get rid of the provision of attorneys' fees, but it just raises the bar for when attorneys' fees are going to be given," he said.
But Rep. Andrew Stoddard, D-Sandy, said the bill sets a "bad precedent" for transparency and that it would "have a chilling effect on people trying to bring transparency to their government."
"The language in there that was existing on attorneys' fees was already pretty narrowly tailored," he said. "By refining it to 'bad faith,' it makes it a very high bar. ... I think we should be trying to seek for more government transparency."
The Utah Media Coalition, which represents media outlets in the state, including KSL.com, also spoke against HB69 after the Senate made changes to make it harder to recoup attorneys' fees related to records requests.
"We are disappointed the House passed this bill dismantling a critical part of GRAMA without any hearing or opportunity for the public to voice their concerns," said Jeff Hunt, a First Amendment lawyer who represents the coalition. "This bill weakens GRAMA and will result in less transparency and open government."
HB69 was changed Friday by Sen. Calvin Musselman, R-West Haven, to include raising the bar for being awarded fees and passed the Senate unanimously on Tuesday with no debate. All Senate Democrats who voted supported the bill, but Democrats in the House voted as a bloc Wednesday against the changes and released a statement following its passage, saying HB69 "obstructs and weakens the public's ability to hold their government accountable."
When pressed as to why Senate Democrats were in opposition to their House colleagues on the latest version of the bill, Senate Minority Leader Luz Escamilla, D-Salt Lake City, said she did not know the specifics of the bill and said the caucus often relies on the recommendation of the senator who served on the committee that heard the bill — Sen. Nate Blouin, D-Millcreek, in this case.
During an interview with KSL.com Wednesday, Blouin said he was in favor of HB69 in its original form, but the late changes caught Senate Democrats off guard.
"Frankly, I don't know if we missed it. I don't know if it was just poorly described by the sponsor on the floor, but that was not what we intended to vote on, I don't think," he said. "That's not what we believed we were voting on, and so that was frustrating to see how that kind of played out on that piece of it. Because I certainly don't support the direction they went with the fees."
The senator said when he learned of the changes, he reached out to the House Democrats to urge them to oppose it when it returned to the House floor for representatives to concur with the changes.
Blouin cast a key vote in favor of another public records bill Tuesday during a committee hearing. SB277 would replace the State Records Committee with a single person appointed by the governor to oversee appeals when requests for records are denied. Transparency advocates said that bill would also limit the public's access to records.
He said he was "strongly opposed" to an initial version of that bill but thought the sponsor was moving in the right direction by removing a provision that would have eliminated the balancing test. Blouin said he would like to see the process for appealing denied requests sped up but he's received "some mixed messaging" from stakeholders.
"I'm really concerned about the media access, so if we can get this to a place that I think allows the press to have more ability to provide accountability to the government, to political processes, that's a good thing," he said. "If the bill moves in that direction to provide accountability, I'll support it. If the bill ... moves in the direction of limiting access, I definitely don't support that."
HB69 takes effect on May 7 if the governor signs it or allows it to become law without his signature.
