HB477 Put On Hold; Lawmakers Say Goal is Privacy, Not Secrecy 

• erik daenitz

Rep. John Dougall, R-Highland, is a legislator who does not like Big Brother snooping into the private lives of citizens—or Big Media, for that matter. In introducing his sweeping rewrite of Utah’s 20-year-old open government law, Dougall asked his fellow legislators: “Are you aware that when a constituent sends you an e-mail, concerned about a program and they disclose that their child has a serious disease, that that could be disclosed and put onto the front page of the newspaper?"

Less than 48 hours later, Dougall’s bill had shot like a laser from committee to the Senate floor, where Senate President Michael Waddoups, R-Taylorsville, made the same argument in favor of constituent’s privacy, as he cast the final vote to send the bill to the governor’s desk. As of press time, due to public pressure and negotiation from Gov. Gary Herbert, the Senate recalled House Bill 477 with a plan to delay implementation until July 1. They plan to form a working group to study the issue more carefully and hope to call a special session to address final changes before that time.

The issue of privacy will likely be at the forefront of these discussions, including how to better protect the privacy of constituents. One media representative says the issue is a distraction and that there’s a simple solution to address constituents’ privacy concerns that could be put into place immediately.

Dougall’s bill also includes a provision that says text messages and instant messages are not records that can be requested, and an added exception meant to ensure legislators and other officials can effectively conduct government business without fear their internal deliberations will be scooped—and possibly sabotaged—by the media.

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Joel Campbell, former Deseret News reporter and editor and current Salt Lake Tribune columnist, says the media are willing to work with the Legislature on making better, more fine-tuned requests. He worries, however, that the constituent-privacy concern is clouding the issues. He cites Dougall’s example of the e-mail about a sick child as erroneous.

“Under current law, that’s private information. There’s no reason that would be exposed,” Campbell says. As to whether constituents are aware their communications are public, Campbell says a simple fix—used by the federal government and many other states—is simply to post a warning on the Legislature’s Website next to legislators’ e-mail addresses saying that correspondence with legislators are a public record. He says this remedy was discussed with legislators several years back, but no legislation was brought to make the change.

Dougall’s bill specifically takes aim at voluminous or “fishing expedition” records requests that legislators say divert their understaffed offices away from important projects—legislators have cited staff working 400 hours in the past year on records requests.

“Government is starting to screech to a halt,” Dougall says. But it’s not only the scope of the requests that troubles Dougall, but also the chilling effect requests have made on government business.

“I have colleagues who literally will delete every e-mail they get and have no record, of any information they’ve gleaned, because when somebody requests it, they have to give it,” he says. “It’s like some in the media want us to walk around with a microphone and camera on us wherever we go.” That’s why his bill gives government added protection to shield “informal” communications about public business from the public.

One record request this session, for example, sought communications between House and Senate leadership and the Governor’s Office on all budget-related issues. As an Executive Appropriations Committee chair, Dougall says people send him information about efficiency or waste in government and want the communication confidential. If such communications made it on the 10 o’clock news before policymakers have reached a final decision, it could throw a wrench into the budget-making process, he argues.

But the new Government Records Access and Management Act (GRAMA) bill would protect more than in-process policy discussions or constituents’ privacy. Critics fear it would also shield communications from a special interest seeking to sway a legislator.

For example, in 2009, City Weekly, along with other media, had been investigating the friendship between Rick Koerber, a Utah County businessman now being indicted by the federal government for operating a $100 million Ponzi scheme, and Rep. Carl Wimmer, R-Herriman. One story, reported by Robert Gehrke of The Salt Lake Tribune, used a GRAMA request to obtain an e-mail that had personal information about Wimmer’s family blacked out; included, however, were Wimmer’s comments “I want to help get you through this garbage”—i.e., Koerber’s investigation by the Utah Division of Securities. Such e-mails would enjoy greater shielding under Dougall’s bill for the sake of protecting constituent privacy.

Text messages and other forms of electronic communication enjoy exclusion from being considered a record in Dougall’s bill, a measure he says is meant to update the GRAMA law, which could not anticipate such technology when it was drafted in 1991.

“In the old days you picked up a phone and talked to somebody; that’s what texting is like today,” Dougall says. “That’s why I wanted to put texting in as ‘not a record.’ ”

Critics worry that Utah would stand alone as the only state to rule such messages as not being records, and that to do so would redirect secret conversations through text messages.

In September 2010, ABC 4 reporter Chris Vanocur used a GRAMA request to obtain a text message that was sent by the attorney for former Senate Majority Leader Sheldon Killpack to the Utah Attorney General’s Office. Killpack received a ticket for driving under the influence and was fighting to keep his driver’s license, despite having a reported blood alcohol level of .11. In the records Vanocur obtained was a text message Killpack’s attorney sent to a legislative liaison to the Attorney General’s Office that read: “Sheldon thinks you might be able to persuade Shurtleff to help w the length of his suspension. Anything to that? [sic]” The request was rejected by both a deputy attorney general as well as Attorney General Mark Shurtleff.

While Dougall acknowledges these kinds of interactions happen through e-mails and text messages, he believes they happen infrequently. “My contention is that these conversations take place in the hallways, not in e-mails. They’re in a process where there aren’t records anyway.” He also argues that even with current legal privacy protections, journalists and their attorney can still attempt to obtain private information.

“There’s a potential that they can be [disclosed],” Dougall says.

For Campbell, however, the current government-records law has provisions that have protected personal privacy well for the past two decades. He believes there’s a simple reason legislators keep repeating the constituent-privacy claim in arguing for Dougall’s bill.

“I think it’s a red herring,” Campbell says. “It’s meant to scare constituents.”