New legislation passed last week by Utah lawmakers and signed on the evening of March 8 by Gov. Gary Herbert will have the chilling effect of legally allowing our state government to operate under the shroud of secrecy. And while HB477 will certainly make the work of journalists – and especially those working for small media outlets such as The Times-Independent – far more difficult, the biggest loser in this legislative fiasco is the public.
Gov. Herbert has said an amendment passed Monday delaying HB477 from being enacted as law until July 1 will give ample time for further discussion and changes to improve the legislation. But it seems unlikely that those who pushed the bill through in the Legislature will readily relinquish the new veil of secrecy they’ve built into this legislation.
Under HB477 average citizens seeking information about state or local government matters are far more likely to find their requests delayed or outright ignored by government entities – both state and local – that do not want their dealings to be subjected to public scrutiny.
Last week, HB477 was brought to light, with a fast track to committee, the House floor, and Senate approval. Available in its entirety at http://le.utah.gov/~2011/bills/hbillint/hb0477.htm, the bill basically nullifies the state’s Government Records and Management Act (GRAMA), severely limiting the information to which journalists – and citizens – have access.
The 20-year-old GRAMA law allows the public – and, of course, the media – to request records from government sources.
How do we operate an effective democracy if the people have little or no access to what happens in government? And why the secrecy? What are Utah legislators trying to hide?
The bill exempts electronic records, including text messages, voice mails, instant messages and video chat recordings, that lawmakers claim should be excluded from disclosure because they may include personal information not meant for public view. But that claim is false. In truth, information not pertinent to the workings of government is already excluded under existing GRAMA laws.
To exclude a whole broad category of communications media from public access is unacceptable, and invites corruption. With a wink and a nod, lobbyists and other special interests could communicate with legislators solely by email, cell phone and instant messaging, thereby avoiding any possibility that the content of their discussions will ever be made public.
Lobbyists will be allowed unlimited secret access to legislators, while citizens and the media will find it next to impossible to keep tabs on the legislative process.
Two national freedom of information act (FOIA) experts, Charles Davis at the University of Missouri and David Cullier at the University of Arizona, have been reviewing the bill and say it is now the worst law on the books in the U.S.
“I’m reading HB 477... it’s the worst statutory proposal on FOI in our LIFETIMES,” Davis said.
Cullier said: “This legislation is the most horrific anti-FOI legislation I have ever seen. I think, in all seriousness, that Mexico FOIA law is probably better. Maybe even China’s FOIA law.”
The bill also expands government’s ability to charge fees for GRAMA requests, and reduces the public’s ability to obtain fee waivers. Fees for “direct administrative costs” would be increased to charge for “processing” requests in an “amount sufficient” to cover actual costs, including “costs of overhead and administration.”
Basically, any piece of information that government officials would prefer to keep secret could be easily priced out of range for all but the most wealthy and well-connected. Under current law, government may not charge for inspecting a record to determine if it is subject to disclosure.
HB477 repeals GRAMA’s Legislative Intent Section, which has provided important guidance for government officials, the State Records Committee, and the courts in interpreting and applying GRAMA. This section protects the public’s right to access information concerning the conduct of the public’s business, and the right of personal privacy in relation to personal data gathered by governmental entities.
HB477 broadens several GRAMA exceptions and creates new ones. A substantial amount of information that is now public would be put off-limits to the public under new exceptions.
We believe that there should be a compelling reason before making more information about our government off-limits to the public. No such case has been demonstrated regarding any of these new exceptions.
Under HB477, the burden would fall on the person requesting information to show that public interest outweighs the government’s interests of nondisclosure. The bill also raises the standard that must be met to obtain a court order for the release of records based on the argument that making those records available is in the public’s best interest.
Perhaps worst of all, this legislation was developed in secrecy, and revealed to the public less than 72 hours before being approved and passed on to the governor for his signature. In the committee hearing, all the citizens who spoke opposed the bill, yet HB477 passed out of committee with a unanimous vote. Both the House and Senate voted overwhelmingly to pass.
We thank our representative Christine Watkins for opposing this bill.
When the governor calls a special session of the Legislature in June, we urge all Utah lawmakers to vote to rescind the draconian changes to GRAMA that are written into this bill.
If they don’t, and the governor allows it to become law as written, those legislators and Gov. Herbert can never again claim with honesty to be friends of the people.