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- Utah lawmakers passed HB69, prohibiting tracking politicians' ballot methods, now awaiting Gov. Spencer Cox's decision.
- The bill includes controversial language affecting legal cost recovery for government records access challenges.
- Concerns were raised about discouraging transparency, while supporters argue it protects taxpayer funds.
SALT LAKE CITY — The fate of a bill drafted in response to Utah County Clerk Aaron Davidson tracking the method local politicians used to cast their ballots, but changed by lawmakers without a hearing, is now up to Gov. Spencer Cox.
The House voted 54-18 Wednesday to give final approval to HB69, and the bill has been sent to the governor for his action. Although the bill previously passed the House unanimously, another vote was needed because of new language added on the Senate floor.
Now, as well as making it a crime for anyone in a government office to attempt to determine or disclose "any information from a ballot cast by an identifiable voter," the bill includes language seen as discouraging Utahns from challenging decisions denying access to government records.
That's because the bill would prevent someone who successfully appeals for access from recovering legal costs, unless the government is found to have acted in bad faith. Should the government prevail, a court would be able to assess legal costs against a requester.
Sen. Calvin Musselman, R-West Haven, the bill's Senate sponsor, made the change, telling senators Tuesday it made 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," Musselman said.
There was no debate or even questions about his substitute bill from senators, who passed it unanimously. None of the new language was part of the bill when it was heard in House and Senate committees earlier in the session.
A day later, House floor time was delayed by around 20 minutes as GOP lawmakers met in a closed-door caucus meeting where legislative attorneys "argued" over liability issues related to the amended provisions of HB69, Rep. Trevor Lee, R-Layton, said.
On the House floor Wednesday, the bill's sponsor, Rep. Stephanie Gricius, R-Eagle Mountain, said the new language from the Senate "does not restrict access. It just modifies how attorneys' fees are done."
She said the Senate also "narrowed the scope of the criminal penalty in the original bill. That does not impact the original policy that came out of this body, so we're good with that." An earlier change to the bill in the Senate tied the penalty specifically to voter information.
Rep. Andrew Stoddard, D-Sandy, was the only House member who spoke against concurring with all of the Senate changes.
"I have an issue with the attorneys' fees portion of this bill," Stoddard said, adding, "I think this sets a bad precedent. By requiring bad faith, it makes it a very high burden to show. What we're doing is going to discourage people from bringing these records requests and litigating them."
He said, "Obviously, attorneys are very overpriced, and these types of things cost a lot of money. So to require someone to prove bad faith before bringing this is going to have a chilling effect on people who are looking to bring transparency into government."
But Rep. Jordan Teuscher, R-South Jordan, backed the bill.
"What I like about this compromise is it doesn't get rid of the provision of attorneys' fees, it just raises the bar for when attorneys' fees are going to be given," Teuscher said, when a "government entity chooses to actively conceal or not disclose something that they should be disclosing."
He said under the current law, a court could decide that it is in the public interest to release private records, and the government would have to pick up the requester's legal costs.
"That's a problem," Teuscher said. "When we're talking about the government paying attorneys fees, what that really is, is taxpayers paying attorneys' fees. And when taxpayers are having to do that, we really need to have a high bar."
Gricius agreed.
"These are public funds," she said. "This is not the government hoarding money and saying it's ours. We are responsible for those taxpayer dollars, and it's just not judicious for us to be handing those out every time we lose a case."
Her bill was first proposed last year during the Legislature's interim, after Davidson, the Utah County clerk, told the Deseret News in October that he was tracking the ballots of politicians to see how they were being returned amid a controversy over his push to avoid using the mail.
Davidson said that's how he knew Sen. Mike McKell, R-Spanish Fork, now the Senate's majority assistant whip, had sent in his primary ballot without a postage stamp. Gricius said the clerk had approached her about not using a drop box in the primary.
Utah County Attorney Jeff Gray quickly launched an ongoing investigation into Davidson's actions, saying "it raises concerns to me, obviously."
Contributing: Brigham Tomco
