A 2004 sexual harassment scandal in the Salt Lake County Clerk’s office has, seven years later, got legislators fired up. They’re not discussing the actual scandal, which involved a superior attempting to coerce an employee into having sex with him to advance in the office. Rather, they’re concerned with the fact that, in 2008, the Utah Supreme Court decided the public’s interest favored the county’s internal investigation report be turned over to the Deseret News, which had sought it. One of many arguments the justices relied on was a provision in GRAMA, Utah’s Government Records Access and Management Act, that provides for courts and other decision makers to err on the side of the public’s right to know when weighed against government privacy concerns.
Legislators who are expected to pass a new government-records law in a special session this summer were looking at the black and white legalese of the decision that has been used to potentially thwart the government’s ability to conduct investigations in advance of potential litigation. Generally, legislative intent language is meant to express the goal the legislative body had in mind in passing a particular law.
“I believe that court case destroyed GRAMA,” says Sen. Daniel Thatcher, R-West Valley City, arguing the Utah Supreme Court’s decision against protecting information for future investigations sets an alarming trend. “If we turn over [documents] that are involved in pending court cases, the state would never win a case again.” Defenders of GRAMA’s famous legislative intent, however, argue that it’s the heart and soul of Utah’s open-records law, and that the Deseret News decision would not foil pending government litigation.
The legislative intent in GRAMA currently recognizes two constitutional rights: 1. the public’s right to access information about the “public’s business,” and 2. the right of “privacy in relation to personal data gathered by governmental entities.” Where these two rights could come into conflict, GRAMA’s legislative intent favors the public’s access to such information when “countervailing interests are of equal weight”—giving the public interest the win in a draw situation between disclosure and shielding records.
But Rep. Brian King, D-Salt Lake City, also a member of the GRAMA working group, wonders if the intent language wasn’t something added into GRAMA when it was drafted in 1991 simply to mollify legislators who thought GRAMA didn’t do enough for government transparency.
“Sometimes, this is the way intent language works,” King says. “It’s a method of taking a rough edge off a bill that would otherwise not have the support necessary to pass the Legislature.”
Lawmakers’ warm fuzzy feeling disappeared when a footnote in the 2008 Utah Supreme Court decision in Salt Lake County vs. Deseret News Publishing Company case said the intent language actually trumped another legal standard that simply weighed whether more interest favored access or protection.
The public’s interest was important, the justices noted, since the evidence strongly showed Salt Lake County had circumvented the GRAMA process and that the public deserved to see the report—not for scintillating details of sexual harassment but to verify whether the department had failed to heed warning signs about the oppressive work environment or were simply protecting their 30-year employee out of political favoritism.
But these points comprise only two pages out of the 10-page decision summary—the majority of the decision points out that legislative intent language wasn’t the sole factor in ordering Salt Lake County to turn over its file. The claim that Salt Lake County was using the file for pending litigation lacked merit since it had already closed the investigation file. Privacy concerns were also moot, since the main players in the file had already been identified in a federal lawsuit and their names publicized in the media, and other key witnesses were referred to only by aliases in the report. On top of that, Salt Lake County had circumvented the GRAMA process by ignoring an initial review to confirm if the report was actually protected.”
Joel Campbell, former Deseret News reporter and editor, and current Salt Lake Tribune columnist, believes the implications of that case have been “blown out of proportion.” He points out that numerous privacy protections are already built into GRAMA—including the constitutional right to privacy of personal information that’s also a part of the legislative intent language.
“They’re using that legal language to deny requests based on privacy,” Campbell says. “I don’t see how you can have it both ways.”
Campbell is worried that losing the intent will hurt not just court decisions but also the State Records Committee, which reviews many contested records requests as an impartial part-citizen review board. “By taking intent out, it hurts or even guts the State Record Committee’s body of case law, if you will,” he says.
The State Records Committee, Campbell says, used legislative intent to the public’s benefit when, in 2001, they ordered the Attorney General’s Office turn over its investigation file of the 2002 Winter Olympics bribery scandal. The reports allowed the public to discern that unethical behavior, including conflicts of interest, use of escorts to influence decision makers and other ethical red flags were brought to the attention of Olympic organizers and city officials nearly a decade before news of the scandal officially broke. The committee argued the public’s right to know demanded that hundreds of pages of documents should be disclosed to the public—but also allowed the necessary redactions to make sure doing so wouldn’t complicate future legal actions.
Sen. Lyle Hillyard, R-Logan, who works as an attorney, says that the Legislature has moved away from putting legislative intent into bills for the simple fact that such guidelines can sometimes confuse courts and other decision-making bodies rather than guide them.
“The real problem with GRAMA is the fact that it’s broad enough and there’s enough old language being used that no one really knows [intent],” Hillyard says. “We think it means this, and I’ll tell you, I bet I can get you a lawyer that says it could mean [something else].”
Hillyard also challenges intent that recognizes constitutional rights, allowing a tool broad enough to challenge for private documents. “Is there a constitutional right to get public documents? If that’s true, then where does it stop?” Hillyard says, asking what could stop an ambitious lawyer from using the language as an opening to seek Supreme Court decision drafts or the governor’s internal litigation documents.
“I have the same argument when people come to me and say that the right to bear arms is constitutionally absolute,” Hillyard says. “Then I ask, well, why can’t inmates carry arms?”
The devil is in the details and may be what concerns lawyers both for and against keeping the intent language in a GRAMA update envisioned for summer 2011. But for Rep. King, who is also a private attorney, the Supreme Court’s reading of the intent is not a death blow to government privacy. At the same time, he thinks GRAMA’s numerous other privacy protections do more for transparency and protection than the intent language itself.
“I sort of roll my eyes and think, ‘You know what? There are lots of ways to deal with reasonable privacy concerns and in ways that protect legitimate interests of people with those concerns and allow for public information to be disclosed,’ ” King says. Unearthing secrets and protecting them are, after all, both strengths of wily lawyers.
“You can be pretty creative in protecting people’s privacy,” King says. “It happens in court cases all the time.”