Are lawmakers’ texts and tweets public or private? That depends
May 3rd, 2011 Posted in OpinionWorking group of citizens and officials will decide GRAMA’s future this summer
By Kate Rouse
LOGAN — When Joel Campbell walked into a Utah House of Representatives committee hearing on March 3, he had no idea the bill discussed that day would be passed by the House in less than 24 hours, that it would fly through the Senate and that Governor Gary Herbert would sign it into law within 72 hours.
Before that, he also could not have imagined the public furor that this particular bill would generate — culminating in its eventual repeal in a special legislative session on March 25 — or the questions that the bill and its passage would raise about the legislative process in general.
“We had no idea the bill was even in the works,” said Campbell, a BYU associate professor of communications and a lobbyist for the Utah Press Association. “Ninety percent of laws had a longer time in the Legislature than this.”
The bill was Utah House Bill 477, a series of proposed amendments that sought to redefine Utah’s Government Records Access Management Act, or GRAMA. While those legislators who supported the bill saw the changes as necessary to keep up with advancements in technology and increasing privacy issues, some citizens saw it as an attempt by the government to hide behind an ever-increasing fog of legislated secrecy.
“Things had changed since 1992 when we passed this bill, and we didn’t have instant messaging, and texts and all of the stuff we have now,” said Cache County Senator Lyle Hillyard, who sponsored the bill in the Senate. “We defined better, I think, what is a public document.”
But Salt Lake Tribune Editor Nancy Conway said the new restrictions that House Bill 477 would place on public access to records was like “throwing the baby out with the bathwater.
“HB477 would have exempted public officials’ text and instant messages and video chats, required record requesters to pay more for staff and attorney time for large requests — and most importantly would have eliminated language on the intent of GRAMA that says government records are presumed public,” Conway said in her April 2 editorial, which ran in the Salt Lake Tribune. “Under HB477, public records — your records and mine — would be presumed closed and government officials could conduct our business in secret.”
Regardless of it’s merits or shortcomings, the 59-page bill passed the House, the Senate and the governor’s desk in near-record time, while legal scholars were still hashing out exactly what those amendments would mean. A strange way of doing things, when, according to Campbell, all of the experts who presented before the Legislature during its short time in the House committee hearing opposed its passage.
“It’s an education in the way the Legislature works,” Conway said. “There was one hearing (in the House), seven people spoke, all of them were opposed to House Bill 477.”
“Over the past history of the Legislature, there’s been a lot of bills done like that,” Hillyard said. “When I sponsored the bill, I fully expected the Legislature and the news media would spend the summer going through this to see if we needed to fine-tune it any further and clarify it.”
But some said the bill was introduced at the tail-end of the session, then rushed through the House and Senate, for a reason.
“(The bill) had already been talked about in caucuses and they didn’t tell the public,” Campbell said. “They thought it would be a 72-hour story in the media and then it would die down, and they would have a new law.”
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Back up to 1991, when, after nearly three years of debate, Conway said, Utah’s Government Records Access Management Act was passed by the Legislature and signed into law.
“Utah passed the Government Records Access Management Act in 1991 to balance the public’s right to know with the public’s right to privacy,” Utah Attorney General Mark Shurtleff wrote in his 2008 handbook, The Open Book. “GRAMA promotes access and defines when privacy or security issues outweigh the public’s right to know.”
The original law defined records as public, private, protected and controlled; established a way for individuals to request public records and allowed for fees to be assessed when records requests would require longer than 15 minutes to compile; and outlined that, when there was a conflict of interests where the public’s right to know was equally as important as the interests to keep the records confidential, the pendulum would swing in favor of public disclosure. “Personal” communications between legislators and members of the legislative staff were not considered public under the 1991 law.
According the legislative intent, on the books as Utah Code Title 63G, Chapter 2, Section 102,
“It is the intent of the Legislature to:
-promote the public’s right of easy and reasonable access to unrestricted public records;
–specify those conditions under which the public interest in allowing restrictions on access to records may outweigh the public’s interest in access;
–provide guidelines for both disclosure and restrictions on access to government records, which are based on the equitable weighing of the pertinent interests and which are consistent with nationwide standards of information practices;
–favor public access when, in the application of this act, countervailing interests are of equal weight; and
–establish fair and reasonable records management practices (http://le.utah.gov/~code/TITLE63G/htm/63G02_010200.htm).”
House Bill 477, when signed into law, repealed the above legislative intent in its entirety.
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But members of the Legislature did not seem to know what that original intent was, or much about the 1991 act itself, before signing significant changes into law in March.
While the original GRAMA legislation provided that information “properly classified as private, controlled, or protected” may be disclosed “if the interest favoring access outweighs the interest favoring restriction of access (Utah Code 63G-2-401, Subsection 6,” Hillyard, for one, did not believe the plain language of the statute matched the original intent of the law. He said the courts had erroneously interpreted the law that way, citing a recent court case involving the Deseret News (http://www.deseretnews.com/article/695265544/Utah-Supreme-Court-orders-county-to-hand-over-sexual-harassment-report.html).
“The Utah Supreme Court chose to disregard the plain language of the statute that said that anyone requesting the information had the burden of proof to show that it was a public document,” Hillyard said. “The court went by intent language and not the plain language of the statute, and said if there’s a close question, you err on the side of giving out the information.”
The person requesting the information did not originally carry the burden of proof in the 1991 act, but under House Bill 477 would be required to establish “by a preponderance of the evidence (that) the public interest favoring access outweighs the interest favoring restriction of access (House Bill 477, Subsection 6).”
“That deeply concerned me that the courts can change significantly the intent of the bill,” Hillyard continued. “The Legislature created GRAMA, we ought to clarify GRAMA, not the courts. It ought to be the Legislature that decides.”
Hillyard also continuously mentioned his concern that emails sent to his state computer while the Legislature was in session could be requested and published, even if the information contained in them was of a private or sensitive nature.
But while text messages, instant messages and voice mail messages would no longer be considered “records” and would be not be subject to public disclosure under House Bill 477, the classification of emails would remain the same in both the original legislation and the proposed amendments. Even under House Bill 477, emails would still be considered records and would be still be subject to the same kinds of requests. Furthermore, private and sensitive information was already protected under the 1991 law.
Although medical records, Social Security numbers and a list of sensitive information was already defined as exempt from public disclosure, Hillyard and many legislators were particularly concerned about the time it takes to go through and determine what information was public and could be shared, and what information was private and needed to be redacted, and the cost that extensive records searches could incur to government agencies.
“Basically, the newspaper, the news media, can request about whatever they want from GRAMA and there’s not really a lot of cost (to them), we have to bear that,” Hillyard said, claiming that anyone could request any emails regarding the budget of the state of Utah during the last two years, for example. “We have the duty now to go through and get all of that done, all free, no charge to anyone who asks the information.”
Contrary to Hillyard’s statements, the original GRAMA law allows an agency to assess a fee if the time needed to compile the request exceeds 15 minutes, and “may not exceed the salary of the lowest paid employee who, in the discretion of the custodian of records, has the necessary skill and training to perform the request (http://le.utah.gov/~code/TITLE63G/htm/63G02_020300.htm).”
A clerk at the 1st District Courthouse in Logan said the current fee for copies of public documents is 25 cents per page if it’s a printed document, $15 for an older recording of a hearing and $10 for a newer recording. She said if the request takes longer than 15 minutes to fill, the charge is $15 per hour beyond the copying fees. Since House Bill 477 was repealed and she was told not to worry about it, she didn’t know what the new fees would have been had the law taken effect.
While the first 15 minutes would have remained free under House Bill 477, the fees assessed, while no longer limited to the salary of the lowest-paid employee, could have also included administrative and overhead costs, according to Campbell’s April 22 column published in the Salt Lake Tribune. “That,” Campbell said, “would have undone Utah GRAMA’s current and narrowly drawn “actual cost” provision, which is among the best in the United States.”
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Finally, Hillyard and other legislators blamed primarily the news media for what they saw as an unchecked deluge of records requests that could slow government functions to a grinding halt.
“During the session, in numerous conversations with our staff, they were deeply concerned with what was happening with GRAMA requests from the press,” Hillyard said. “We had to cut back our staff, like everyone else had to cut back, with budget reductions, and our staff was really being swamped just trying to keep up with what we need to do with legislative work. And it really felt like they were being pressed for time to respond to GRAMA requests.”
But Logan City Senior Attorney Lee Edwards said the majority of GRAMA requests that he reviews for the Logan City Police Department, Community Development Department and the Logan City Fire Department do not come from the media. He said a lot of requests that come through the city attorney’s office come from victims in criminal cases or developers who want to see what land use decisions have been made regarding the land they want to develop.
“There’s certain records that are public documents and we just work things out with the media (without filing a formal request),” Edwards said. “I haven’t had complaints from departments (regarding the amount of records requests), it’s just something I do as part of my job.”
Nate Carlisle, an investigative reporter for the Salt Lake Tribune, said a GRAMA request he filed with the Salt Lake City Recorder for GRAMA requests filed in Salt Lake City revealed that jounalists are “a percentage point” of the requests that go through the Salt Lake government agencies.
According to the information provided through Carlisle’s request, about 589 GRAMA requests from 11 different Salt Lake City government agenices were filed through the Salt Lake City Recorder’s office since last summer. Thirteen of those, or 0.02 percent, were filed by employees of news media agencies.
Even Hillyard said he files GRAMA requests from time to time to get police reports for accidents and criminal investigations for his law practice, but he said he was not aware that House Bill 477 applied to any other government agency other than the Legislature.
But changes in GRAMA would, in fact, mean changes in the way public records can be accessed through any governmental entity in the state, such as police departments, universities, courts and airports, to name a few.
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Conversations with Hillyard and a detailed review of the proposed amendments under House Bill 477 raise the question that perhaps legislators don’t spend enough time researching the bills they are supposed to be voting on. With full-time jobs and other responsiblities, perhaps they don’t, in fact, have the time to consider each bill as they should, and especially not within the 72 hours that House Bill 477 was up for debate. As Cache County Representative Curt Webb said in a public meeting with consituents, “I’ve never spent so much time trying to keep up on things and felt so far behind.”
But with so much hanging in the balance, some things might be worth giving a little more time and consideration. The way in which House Bill 477 was presented and ultimately signed into law causes one to wonder how many other bills are passed this way, and do those who represent the people really understand what they are voting into law?
After the public uproar from both sides of the political spectrum, many legislators claimed they signed the bill expecting to make changes later.
“As I said on the floor of the Senate when I sponsored the bill, I fully expected the Legislature and the news media would spend the summer going through this to see if we needed to fine-tune it any further and clarify it,” Hillyard said. He later voted for the repeal of the bill “because the governor convinced me that in his conversation with the news media, who were really pushing it, that they would cooperate and that working together, they would come up with the solutions that I thought we’d get during the summer anyway.”
But others saw this approach as one that made little sense.
“I think they should’ve had more public input before passing the law and then having to repeal it,” Edwards said. “I think it should have been fully debated so they could have worked those things out.”
Edwards was confident, however, that things would be ironed out in the working group this summer.
“I think the working group will come up with a good compromise,” Edwards said. “I think there needed to be some issues addressed when it comes to new forms of communication. It’s hard to know when a tweet becomes a government record, or a voice message, or a text message.”
Perhaps the scariest issue of all in the controversy surrounding House Bill 477 was the fact that Hillyard voted to repeal the bill at the governor’s request, and did not seem concerned about the flood of negative emails he received from constituents regarding his Senate sponsorship of the bill, nor the petitions circulating through the state in an effort to repeal the bill through a citizens’ referendum.
“Oftentimes you find that people will contact you if they disagree with you. But the people who agree with you will never contact you,” Hillyard said. He then added jokingly, “I represent 90,000 people. So if I get 25 emails against me on a position, I assume the other 89,975 people support what I’m doing.”
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Tags: GRAMA, HB477, Joel Campbell, legislative process, Lyle Hillyard
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