Government records access task force issues final report

By Sun Advocate

The Utah Government Records Access Management Act task force created by state legislators last year presented the panel’s finding in a final report.
The task force was assigned by the Utah Legislature to look at an array of issues related to GRAMA.
The panel forwarded the task force findings to the government operations and public utilities and technology interim committees on Nov. 9.
In the report to the committees, three bills were proposed that would change how Utahns are able to access public records and it also seeks to redefined what some of those records are.
The first proposed bill changes the definition of what records are subject to the act.
If passed, the bill would amend the act so that certain communications between citizens and elected officials should be classified as protected records.
Currently, those records are not classified as public or protected.
The proposal designates that internal communications that are part of the deliberative process are part of the legislative process between members of the governing body or between legislators and staff are protected records.
The bill clarifies that this only includes the deliberative process, and would not include administrative matters.
Rep. Neil Hansen explained that the deliberative process should be privileged communication.
However, the state representative pointed out that since the process concerns public policy, it may need to be public.
The proposed bill defines the governing body as the Utah Legislature, county commissions or councils and city and town councils.
Any communications between the individuals or with staff would be classified as protected, meaning that the public does not have access unless people are personally named or have some other clearance to view the information.
“If we receive communication from a member of the public, and that member of the public wants that public, then it becomes public,” said Douglas Aagard.
The portion of the amendment clarifies that the member of the public has control over the information. The legislator could also make the information public. Otherwise, the information is protected.
The proposed bill changes the language of the act by requiring that governmental entities give notice to persons who are providing private or controlled information as to how the information is currently used and shared.
Currently, government entities are only required to explain information.
In addition, the amendment proposes that the notice explain the the classes of any government entities or individuals that will receive the information.
The notice would be required to be posted in a prominent place at the location where information is collected and in all documents that are used to collect the information.
Further, government entities would be required to explain the reason the information is collected, the intended use, the consequences for refusing to provide information and the reasons and circumstances under which the information would be shared.
The proposal also clarifies that certain government entities would be required to submit record retention schedules for approval by Utah’s records committee. The bill provides that entities that do not submit retention schedules shall be governed by a model retention schedule which is to be maintained by the state archivist.
The Utah Legislature and judiciary, however, would be allowed to set retention schedules and records management, notice and amendment policies.
The proposed bill defines elected officials for the purposes of GRAMA as a “person elected to a state office, county office, municipal office, school board or school district office or special district office, but does not include judges standing for retention election.”
At the presentation, the bill was criticized by members of the public who felt that the bill would create secrecy within the government.
Representative Ann Hardy responded that the purpose of the bill and the purpose of the task force was not to take government into a secret hiding place, but to address changes in technology and protect the privacy of citizens.
Representative Carol Moss added her opinion on restricting correspondence between the public and lawmakers.
“It is the public’s business, and if people don’t want to risk having something they like made public, they should contact us in a different way. These aren’t our computers; it’s not our email system. It belongs to the government, which is paid for by the taxpayers,” said Moss.
Constituent correspondence has not been classified as protected under GRAMA. As such, it would remain public. Further, email correspondence was not an issue in 1991, when GRAMA was passed. Members of the task force explained that the purpose of the amendment was to clarify that issue. Correspondence with constituents rose out of that issue.
Various members of the task force pointed out that members of the public will likely consider the communication as protected, and to open all email correspondence to the public would take away privacy rights of constituents.
Moss advocated that email correspondence between lawmakers and the public should be, in general public. Moss, Rep. Carl Duckworth and Sen. Fred Fife opposed the bill, but it passed and will go through the normal committee review process before it can be brought to the legislative floor in January.
A separate bill would amend GRAMA to designated requests under GRAMA for records that relates to a notice of claim under the Governmental Immunity Act of Utah as an extraordinary circumstance.
Another change the bill would make to GRAMA is opposed by media. It would require that appeals be heard by the state records committee before being appealed to the judiciary. Currently, if a GRAMA request is denied, the requester can appeal the process through the state records committee or through the judiciary system.
If the requester chooses to appeal to the state records committee, that decision can then be appealed through the judicial system. The law would require all appeals to be heard by the records committee before they could be heard in a courtroom. That process could lengthen the time it takes to get a record if the denial is eventually overturned in court.
At a panel hosted by the Utah Headliners Chapter of the Society of Professional Journalists in October, media attorney Jeff Hunt explained that this bill would eliminate an expedited route that many entities choose.
Normally, the appeals process to the state records committee takes approximately one month, and the judicial process could add an additional two months to that.
Some entities feel that the state records committee would adhere to the initial denial to access the record and they take their case directly to the judicial system. That process saves time in getting the request.
However, in cases where timeliness is a factor, the requester would be required to exhaust all appeals and would lengthen the time it takes to get certain information.
The bill also clarifies language relating to time requirements for the filing of appeals and requests for judicial review. Requesters would have 30 days to file appeals after the government entity makes its determination.
In addition, the bill would remove the procedure for filing a notice of intent to appeal before seeking judicial appeal of a records committee order and modifies the act’s language related to attorney’s fees to accommodate the requirement for records committee review.
The bill would change the wording of GRAMA so that if a government entity receives a request and that information is not contained in a government record, the government entity would not be required to create a record.
Also of a person request information that is included in a public publication or product would not have to be released. Instead, the requester would be required to look in the publication or product that contained the information.
The third bill that has come out of the task force adds protections to individual privacy rights by protecting individuals’ home address, home telephone number or personal mobile phone number. if the information is required by law and if the subject of the record has a reasonable expectation the the information will be protected by complying with the law. Records with that information would be classified as protected.
The bill allows government entities to disclose an individual’s home address or phone numbers that are otherwise protected if the head of the governmental entity determines that the disclosure is mutually beneficial to the subject of the record, the governmental entity, and to the public by serving a public purpose related to public safety or consumer protection. Also, the person who receives the record from the governmental entity must agree not to use or allow its use for advertising or solicitation purposes.
In addition, the bill provides that in response to a request, a governmental entity is not required to compile, format, manipulate, package, summarize or tailor information. The government will not be required to provide a record in a particular format, medium, or program.
That portion of the bill stands in stark contrast to a decision by lawmakers in Massachusetts to require that all records be stored in a format that is open to the public. Under the law proposed by the task force, if a requester asks for information stored in a database, the government can release a copy of the database without regard as to whether the requester can access that information.
The government entity can release the information in a different format if it determines that it is able to do so without unreasonably interfering with its duties.
Also, the government can charge additional fees above the actual costs if the request is from a nongovernmental entities for a series of records if the records are provided in an electronic spreadsheet format, in an electronic database format, or for the purpose resale of the records.
Those additional fees must be reasonable and the bill would prohibit that those fees be designed to compete with a private business that provides substantially similar services.
However, if the information requested is stored in a database or spreadsheet, and the government provides them in those formats, the government can charge additional fees.
One concern raised by Hunt at the SPJ panel in October was that the language of the bill is that the government entity can charge additional fees “if the records are provided for the purpose of re-sale of the records.” Hunt explained that the wording could be interpreted to include any information that is to be used by the media. Since newspapers and magazines are sold, they could be considered as re-sale of the record.
Finally, the bill allows contractors and private providers to receive private, controlled or protected records under certain circumstances and provides that improper use of a record is a class B misdemeanor. Previously, it was only a misdemeanor to release a record that should be protected. With contractors and private entities having access to some protected information, that change will place legal limitations on those entities as well.
The decisions of the GRAMA task force were forwarded to the appropriate committees and the three bills presented could be heard on the floor of the legislature in January.