Utah left the national freedom of information movement on March 4. If HB477 is signed into law, it's no stretch to say that there will now be 49 state public record laws -- and Utah's pending deformity.
The scope and breadth of the damage done to Utah's once-proud Government Records Access and Management Act is unimaginable to this observer of open government law. Its sudden regressiveness so at odds with national trends that I find myself fumbling for adjectives.
Twenty years of victories won, of judicial reprimands of legislative malfeasance and requests for information granted and exemptions beaten back, gone in an instant.
I read in the news that Sen. Mark Madsen, a Republican from Lehi, Utah, said the bill would merely inconvenience the media and called the anticipated impact of the bill "hyperbole."
Well, then let me engage in some non-hyperbolic analysis of this atrocity.
HB477 represents the most backward, retrograde legislative proposal to the status of a state's public records law, a topic have studied fairly myopically for 20-plus years. It's not the least bit hyperbolic to say that it puts Utah in a class of one, alone in an anti-democratic zone in which the governors enjoy almost carte blanche over what information they deign to share with the rabble.
Let's begin with perhaps the most startling section, which would exempt a variety of electronic communications, including text messages, voice mails or video chat from disclosure, regardless of whether public officials are conducting public business.
This is a lobbyist's dream, and a citizen's nightmare, an untraceable communications channel in which the privileged have exclusive, real-time access to lawmakers on the floor. It's also a real boon for the city council that wishes to hash things out in private rather than debate publicly. Imagine your school board, heads down, texting away while doing "the public's business." It's coming to a public meeting near you, soon, if this bill becomes law.
Unlike every other state in the country, Utah is now embracing the concept that the medium, rather than the message, is what's important when it comes to openness.
The law your legislature wishes to scuttle wisely provides that public access depends on the content, not the physical form, of the record. That's more important than ever in an era of fast-changing communication devices.
For example, text messaging may already be giving way to even faster and more personal one-to-one messaging as the tool of choice for corrupt officials bent on doing things in the dark.
In 2009, three Florida Public Service Commission staffers were reassigned or put on administrative leave because they gave their Blackberry PIN numbers to a Florida Power & Light lobbyist.¬
That story broke after a Florida state senator began asking questions about the devices after sitting through a meeting of his chamber's banking and insurance committee and watching a fellow lawmaker field instant messages from a lobbyist spoon-feeding questions to ask the Office of Insurance Regulation witness before them.
Think the public is going to have that chummy level of access with these officials? Wouldn't you think they all might behave just a tad better knowing that text messages that concern the public's business are subject to disclosure under the GRAMA?
In their rush to pass this law, I've read as lawmakers talk about their protecting their own privacy, and the privacy of constituents. Balderdash -- I can read as plain as day in the current statute that private communications unrelated to the public's business are already exempt from GRAMA.
In an era in which more and more governmental business will be conducted through electronic means, this is a stunning reversal. It removes any semblance of public and press scrutiny from a whole range of government communications, forever, in a single section.
And that's not the worst thing HB477 does. The real disaster lies in some muddled language about the costs of accessing public information. Under the current law, requesters are responsible for paying direct administrative costs. This apparently rankles some Utah public servants -- whose salaries and records are paid for by you, Utah taxpayers. The new law presents you, the taxpayer, with a double taxation, making requesters responsible for administration and undefined "overhead costs."
Again, Utahns, give your legislature marks for boldly going where no state has gone before. By creating such vague and overreaching language regarding fees, Utah citizens can rest assured that even the simplest public records will cost a fortune, and pricing will be determined solely at the whim of officials who might just be disinclined to grant your request. HB477 takes the sovereign self-governance embodied by freedom of information law and turns it on its head. Bureaucrats, who will hold all the power, will dictate to the citizen.
The bill also strips from GRAMA language stating clearly that government records are presumed to be public and that the burden is on government to show why records should not be disclosed. This is critical language, language recognized by the statutes or common law of every state in the country.
Space forbids me from fully articulating every outrage created by this anti-democratic, arrogant, condescending act by your legislature. It's enough to say that henceforth, if HB477 is signed into law, Utah will stand as the nation's laggard when it comes to open government.
Charles N. Davis, Ph.D., is an Associate Professor at the Missouri School of Journalism who studies access issues, and a former national Freedom of Information Chair for the Society of Professional Journalists.
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