The Legislature is seeking a special exception from government transparency on the eve of the redistricting process, a function of utmost importance to the functioning of our representative government. I'll show you some of the misinformation supporters of HB 477 are using to support the bill that corrupts the intent of Utah's open-records law, GRAMA, and why you should contact Gov. Gary Herbert and tell him that HB 477 must be vetoed.
The Legislature is using misleading information to support HB 477
Many lawmakers have argued that HB 477 is needed because the public expects that their e-mails to lawmakers are private and thus Utah's Government Records Access and Management Act, or GRAMA, must be changed. This false talking point begins by stating that members of the public may not realize that Legislators' e-mails are normally public record and would be released to anybody who requests them. Those members of the public may regrettably share with their lawmaker a mental health diagnosis or a recent bankruptcy, for example, and we wouldn't want that potentially embarrassing information to be released to the general public, the false talking point concludes. HB 477 allegedly alleviates this problem, but the problem doesn't exist. Private communications—or even just portions of e-mails or letters that may contain private information--are not subject to GRAMA, just ask The Salt Lake Tribune's Robert Gehrke.
When Gehrke used GRAMA last year to request text messages that a UDOT employee sent and received on her state-issued cell phone from a representative of a state contractor, Gehrke received only one text message from UDOT along with a note that there were other text messages between the UDOT employee and the contractor but that UDOT would not release them on the grounds that all the other messages were private messages unrelated to the UDOT employee's official duties. Gehrke appealed, but the State Records Committee privately reviewed the text messages and upheld UDOT's decision citing 63G-2-103(22)(b)(i), which makes private communications not subject to GRAMA. If anyone shares personal information in one paragraph of an e-mail to a government employee or legislator and later in the same e-mail asks for an official action or favor, like sponsoring legislation, then under current law the private paragraph should be covered in black marker and the paragraph related to official duties should be released to the person who requested it.
Lawmakers either know that GRAMA in its current form is nimble and nuanced in this way and are misleading the public about the need for HB 477, or they are ignorant of what the law actually is and what HB 477 really does. One of the bad things HB 477 will do, if Gov. Gary Herbert lacks courage to veto this bad bill, is create unprecedented privacy for the Legislature and only the Legislature, a dangerous privilege that body is trying to give itself (line 389 of the bill).
HB 477 would give the state Legislature a special exception to transparency requirement that virtually all other government bodies must adhere to.
Under UCA 63A-12-103, “The chief administrative officer of each governmental entity shall establish and maintain an active, continuing program for the economical and efficient management of the governmental entity's records." Currently that includes the Legislature. The law continues that each government entity shall, “appoint one or more records officers who will be trained to work with the state archives in the care, maintenance, scheduling, disposal, classification, designation, access, and preservation of records; [and] ensure that officers and employees of the governmental entity that receive or process records requests receive required training on the procedures and requirements of this chapter and Title 63G, Chapter 2, Government Records Access and Management Act.”
HB 477 would create an exception for the Legislature and only the Legislature so that they are not subject to this law.
This very special exception, a special entitlement to secrecy the Legislature is seeking, is evidence that this is not a GRAMA reform bill, but a bloody gutting of GRAMA as it applies to the Legislature. The idea that the Legislature may operate in the shadows, away from public observation and scrutiny, even while other branches of government remain obligated to higher levels of transparency, is completely anathema to GRAMA and is indefensible.
HB 477 is radical, new, irresponsible and a dangerous precedent just as redistricting--or Gerrymandering--is about to begin.
The Legislature should not be given special privilege to secrecy, especially not as one of the most crucial duties they serve—a duty they perform only once every 10 years—is on the immediate horizon. At the closing of the session, the process of redistricting will begin in earnest. Redistricting as the Utah Legislature performed it in 2001, is an opportunity to optimize the controlling party's voting districts so that neighborhoods that are less likely to support your candidate can be pushed into a different district where they vote in a different election, and those neighborhoods that may be more likely to vote for your candidate can be brought into the fold. On a macro level, legislative leaders can create optimized boundaries for several incumbents across the state, protecting them from competitive elections they may lose, or splicing up one district the opposing party usually carries--like Tooele--that traditionally elected one Democratic Senator until the 2001 redistricting and now is represented by four Republican Senators.
In 2001, virtually everyone including the conservative-leaning editorial board of the Wall Street Journal recognized the Legislature's redrawn district boundaries for what they still are: a "scam" and blatant Gerrymandering, a term used to describe redistricting that's done to benefit the politicians, not the voting public. It is an incredibly powerful tool that can be used to greatly damage our representative democracy for a decade at a time.
On Septemeber 27, 2001, The Salt Lake Tribune reported:
Expected Democratic losses in the plan ... come mostly from new districts that combine two Democrats in the same area -- forcing one to retire or both to face off in a primary. The maneuver is sometimes described by political scientists as an "elimination gerrymander."
Minority Whip Patrice Arent, D-Holladay, will be merged into the district of Rep. Karen Morgan, D-Cottonwood Heights; Salt Lake City Democratic Reps. David Litvack and Fred Fife will be combined; and Rep. Max Young, D-Moab, appears to be lumped in with Assistant Minority Whip Brad King, D-Price.
In a Nov. 13, 2001, editorial from The Standard-Examiner, it was reported that at least one Legislator had learned the error of their ways and that an independent body would redraw the lines in 2011.
The good news out of all this is that Rep. Ron Bigelow, a West Valley City Republican who served on the Legislative Redistricting Committee, has announced he will sponsor a constitutional amendment in the 2002 session of the Legislature that would create a 15-member independent commission to redraw political boundary lines in 2011 and thereafter.
But that never was accomplished and we're headed for the same "scam" process we suffered in 2001. Only this time the Legislature wants privacy while they do it.
When citizens tried to create an independent redistricting commission, the Legislature blatantly targeted the group's efforts and changed the rules to make it harder than it already was for Utahns to create law without "help" from their legislators. Because the Legislature has a track record of very poor performance in redrawing districts, and a track record of jealously protecting their privilege to continue doing it nonetheless, we the public absolutely must not allow them to perform this duty in secrecy.
Lawmakers rushed this bill through both chambers of the Legislature in only four days because they know the public will be outraged by HB 477 if they have enough time to understand it.
Senate president Michael Waddoups said HB 477 would “fester” over this weekend if the Senate failed to pass the bill Friday—which they did. It's festering anyway.
The language of HB 477 was released on March 1, in the second-to-last week of the Legislative session. It was considered in the House committee March 2 and voted on on the House floor March 3. On March 4, a senate committee approved the bill and later the same day the Senate voted on it as well. This is lightning speed for the Utah Legislature, an entirely unusual rapid-fire pace. The governor will have the bill on his desk Monday.
Senate sponsor Lyle Hillyard said revisions to GRAMA provoke immediate “sky is falling” messages to the public from the media and that's why the bill had to be rushed.
Rather than considering a bill during interim meetings held months in advance of a session, gathering insight from experts in the field including journalists and attorneys on how best to improve the law, and coming to some agreement on how to better manage very large requests—a discussion which should include technological solutions as well as reasonable limitations—the Legislature took a linebacker approach of just muscling their way through public opinion. This shotgun speed combined with the dishonest talking points like the one I discussed earlier, is a corruption of democracy and self-governance. The people of Utah can not govern themselves if their representatives quickly push through a bill that could secure privacy for the Legisalture so fast that the public can hardly participate.
There's too many problems with HB 477 to discuss them in one weekend. Alas, that is all the Legislature has left me to inform you of the pratfalls of this terrible bill. If the problems I've discussed were the only ill parts of HB 477 and the process used to promote it thus far, then they would be reasons enough for Gov. Gary Herbert to veto the bill. Unfortunately, these problems discussed are only a portion of a very bad bill.
Tell him the Legislature must maintain the highest duties to transparency and not be granted special privilege to secrecy that HB 477 gives them, especially not at the very moment that they begin redistricting, one of their most crucial duties that is also so susceptible to poor governance. Click here for contact information.
Special note: the same Robert Gehrke mentioned above was, to my knowledge, the first person to mention the suspicious timing of this bill, that it's being forced through right before redistricting. I tip my hat to him.