In what some consider a surprise hearing yesterday, mediarep resentatives and members ofcitizen watchdog groups spoke against a bill announced less than 24 hours earlier that would dramatically overhaul Utah’s government records access laws.
Rep. Dougall opened his comments for House Bill 477 by presenting a scenario in which a constituent e-mails a legislator concerned about a program and discloses information about their child having a disease. “That could be disclosed and put on the front page of a newspaper,” Dougall said. “I would suggest that that constituent believes they are communicating in private.” Beyond that Dougall lined out other situations whereby legislative business could be gathered and by citizens and media who utilize the Utah Government Records and Access Management Act, or GRAMA that allows for the request of most government records.
Dougall argued that communications with certain legislative staff and even research on possible bills could be disclosed to the public. Dougall who introduced himself as champion of government transparency argued that if he was drafting legislation to overhaul the GRAMA law, then it must be a serious problem. The second component of his bill would shift cost burdens more on to document requesters. He cited the example of a developer who requested every document produced by city officials in the resort town of Alta since it was incorporated in 1970. “When [a records request] becomes expansive and excessive we need to do something to protect taxpayers from just footing the bill,” Dougall said.
His bill would change existing law so that government entities could charge professional service rates to process requests. Currently governments can only charge a processing rate for the lowest-wage employee who can gather the records. Dougall’s bill would allow government’s to charge professional rates, meaning they can charge attorneys rates if legal involvement is needed in reviewing records requests.
Current law also allows media the opportunity to receive free records if they benefit the public, Dougall’s bill would revamp that so the litmus textfavors taxpayer resources.
Dougall’s third portion seeks to definitively exclude voicemail, text messages and instant messages from being considered records. He argued that when Utah’s current GRAMA law was drafted in 1991 that “this was before Al Gore invented the internet,” Dougall said. “The whole nature of text messaging, instant messaging….that was not envisioned at that time.”
Jeff Hunt, a Media attorney and spokesman for the Utah Media Coalition told the committee however that when he helped develop GRAMA in 1991 e-mails were envisioned and the bill, which eh told the committee has served the state well the past 20 years. “Utah has one of the strongest open-government laws in the nation,” Hunt said. “This bill would do serious damage to that.” Hunt challenged the blanket exemption given to all text messages as being records, citing that public officials are doing public business through text message.
He also pointed out that the language of Dougall’s bill could exempt a lot of e-mail communications between public officials when the subject matter is not an “official” statement. Hunt referred to the example Dougall made of a constituent disclosing personal health information to their constituent in an e-mail only to have that information splashed upon the front page of a newspaper, Hunt said that existing privacy exceptions would not let such information be discloses. Dougall’s bill he said however might close off records to the public about individuals seeking to unduly influence a lawmaker. “[But] if the constituent is seeking to influence a legislator and engaging in a debate, that should be public,” Hunt said.
One of Hunt’s greatest concerns was with a two-line change at the end of the bill that Dougall failed to mention in his opening comments. The bill would change the legislative intent of GRAMA. Currently the litmus test of GRAMA is a balancing test that guides the courts and government agencies to disclose documents if it benefits the public interest. Dougall’s bill would re-write this balancing test to require a “preponderance of evidence” to support disclosure.
“For the last 20 years government officials, the state records committee and the courts have relied on this legislative intent language to give it guidance,” Hunt said. “You do great violence to the statute if you repeal it.” Multiple editors and publishers representing papers from the Salt Lake Tribune, in Salt Lake City to the Sun Advocate in Price, Utah as well as representatives of news stations and citizen groups testified against the bill.
“This attempts to address specific problems with sweeping legislation,” said Linda Peterson of the Utah Foundation of Open Government. She cited the Alta example Dougall mentioned as an isolated incident. “This is an anomaly, GRAMA works. With these proposed changes GRAMA will no longer be the light on the hill to people in the state and other states.” She also warned against ruling out text messages as records at a time when the technology is still so emergent. “When it comes to expertise in electronic media the only experts anymore are six-year olds,” Peterson said. “To go forward and make these sweeping changes without great consideration and study could be very perilous.”
Joel Campbell, a Communications professor at Brigham Young University and former reporter and editor at the Deseret News testified that better communication might be a simple fix for journalists who ask too much in records requests of government agencies. “We have some common ground here, we’re closer than we think,” Campbell said, recalling a time as a reporter he required an entire database of accidents from the Utah Department of Transportation, “we ponied up and paid for it.” He also challenged the rushed nature of the bill. “GRAMA is about openness and transparency. To me this is the bedrock open government law in our state and it deserves more than 24 hours to consider.”
Committee members seemed to agree with Dougall that GRAMA needed to be updated to recognize text messages as private.
“I really believe that if someone is replacing what was once common speech with a text message,” said Chairman Mike Noel, R-Kanab, “that is private speech.”
Rep. Ryan Wilcox, R-Ogden, prefaced his commitment to transparency by disclosing having 1,500 Face Book followers and over 900 twitter followers in expressing support for the overhaul. “Nothing in this hurts the transparency I have access to,” Wilcox said.
In summing his bill Dougall said criticssuggestion to study his bill in the Legislative interim was simply a delaying tactic. “We all know what that means, kick it down the road, stall it and delay it,” Dougall said. “I find that unacceptable.”
The committee agreed and unanimously passed out his bill. H.B. 477 now goes to the House floor for debate.