Senate panel advances major change to Utah public records law

A Utah lawmaker removed a controversial piece of his legislation that critics say would gut the state’s public records law but left in an equally controversial part that would eliminate a volunteer committee that decides disputes about access to government information.

Senate Majority Whip Mike McKell made the changes just prior to a hearing Tuesday on SB277 before the Senate Government Operations and Political Subdivisions Committee.

McKell, R-Spanish Fork, told reporters before the meeting that he wants to focus on the process used to seek records under the state’s Government Records Access and Management Act or GRAMA, which he described as “broken.”

During the packed meeting, residents panned the legislation, urging the committee to not approve a bill few have had a chance to read and that would hinder transparency and give too much power to one person to decide whether government records are private or public.

Still, the revised bill passed out of committee 6-2, though some senators voiced reservations. It now goes to the full House for consideration.

Why eliminate State Records Committee?

SB277 would replace the State Records Committee — a seven-member panel appointed by the governor — with a Government Records Office. The governor would appoint the office’s director, who must be an attorney, to a four-year term with Senate approval. The director would oversee an ombudsman who would handle records disputes. The two positions would cost the state an estimated $447,900 a year.

“I think the current records committee process is flawed, and the bill that will continue to move forward with a focus on process,” McKell said. “It’s too slow, it’s too inconsistent and we just need to do better.”

State and legislative audits found few cases in the past few years were resolved within the 73 days the law requires and last year the average time was 156 days, he said.

“The goal of this legislation is to make sure we have the ability to be efficient and responsive to these record requests. We have missed the mark today and we have to improve and do better,” McKell said.

Passing the bill, he said, would reduce delays and increase confidence in government transparency.

GRAMA more beloved than Jerry Sloan?

The Utah Media Coalition, a consortium of news outlets that works to keep government records open, says the State Records Committee has served the state well, noting the courts have affirmed the panel’s decisions 98% of the time.

“GRAMA’s a marvel. This room is full because people love GRAMA. If you polled the public about GRAMA, it would poll higher than ice cream, it would poll higher than (the late Utah Jazz coach) Jerry Sloan, it would poll higher than Zion National Park,” Mike Judd, a lawyer representing the media coalition, told the committee.

Judd said the records committee gets things right and disagrees that a lawyer would make things better. “This is a citizen-led process,” he said.

Utahns of various political persuasions lined up at the hearing to express opposition to the bill and ask lawmakers to keep the records panel intact.

Some suggested that if McKell is concerned about a lack of law training on the committee, that one member be a lawyer. Others said the state should spend the annual cost for the two new jobs to provide training for committee members and county clerks who are often tasked with responding to records requests.

They also lamented the possible loss of the committee’s independence in favor of one person beholden to the governor. The bill allows the governor to fire the director “with or without cause.”

‘Last bastion’ of transparency

Veteran journalist and former State Records Committee member Tom Haraldsen said decisions are better when a group of people share their thoughts. He said the Legislature not filling vacancies on the panel last year contributed to the backlog of cases.

“I think that the SRC is the last bastion of transparency in this state. It gives an opportunity for every citizen who has a complaint to be heard, to be seen, to voice their concerns, not just simply file paperwork that one person looks at and decides if it’s true or valid,” he said.

Sen. Daniel Thatcher, R-West Valley City, was one of two senators to vote against the measure. He said he agreed that the records committee could benefit from legal advice but that that could be accomplished with a staff position.

He said there is a significant benefit to having diverse backgrounds of opinion on a volunteer committee rather than a person’s whose “at-will employment is contingent upon keeping somebody happy that may or may not be happy with certain rulings.”

Thatcher also said there’s a lot of things right in the bill “but there’s just one thing just I can’t get past. … The public does not feel heard and it’s something that we are seeing more and more and hearing more and more. If we listen, what we’re hearing is they are concerned about power grabs, they’re concerned about not being included in the process. They’re concerned about bills not having enough time or enough input, and I agree with them.”

Speaking in favor of the bill

The Utah League of Cities and Towns and the Utah System of Higher Education support the bill.

“Of course there’s going to be disputes about whether we classify records correctly,” Geoff Landward, state commissioner of higher education, told the Senate committee. “We think that the question of whether a record is classified correctly is a legal question that requires legal analysis and a determination that’s properly handled by legal professionals.”

He said that would bring great clarity, consistency and predictability government agencies are seeking in the GRAMA process.

Public interest balance test remains

Before Tuesday’s hearing, McKell pulled one of the most controversial provisions from the bill. His initial version would have removed a longstanding part of the law known as the “balancing test” used to determine whether public interest warrants releasing records that would otherwise be classified as protected or private.

The balancing test — in the law since it took effect in 1992 — is the “beating heart” of GRAMA, according to the Utah Media Coalition. Without it, government could withhold records even if the public interest in disclosure was compelling and the interests favoring secrecy were nonexistent or minimal.

Senate leaders said another lawmaker intends to address the test in separate legislation, though it would likely be limited to records regarding workforce harassment.