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Bill would cut off access to some records

Published February 2, 2009 9:01 pm

HB122 » Attorney work products should be off limits, AG's Office argues.
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Lawmakers may consider a bill that would raise the bar for releasing government records to the public, making certain categories of documents unobtainable even through a court challenge.

Rep. Douglas Aagard said his HB122 -- launched at the request of the Attorney General's Office -- would clarify and strengthen the law to restore the original intent of the Government Records Access and Management Act (GRAMA).

"The issue of attorney-client privilege is the nuts and bolts of this thing," Aagard said. "If you're doing your internal work in advance of anticipated legislation, that information needs to be protected."

Aagard, who in 2005 was co-chairman of a legislative task force on GRAMA, said he was contacted by the AG's Office in December to run the bill.

Two recent rulings -- one from the State Records Committee, the other from the State Supreme Court -- forced the AG's Office to release records it considered protected as attorney-client privilege and attorney work product.

On Monday, spokesman Paul Murphy said his boss, Attorney General Mark Shurtleff, was unaware of the particulars of HB122, which got pulled mid-afternoon from a committee agenda scheduled for today.

"Right now we're in a holding pattern," Murphy said, adding open-records advocate Joel Campbell asked to have a meeting to review HB122.

Campbell teaches journalism at Brigham Young University and represents a media coalition that includes The Salt Lake Tribune . He voiced concerns about possible infringement on the public's right to due process.

The bill prohibits a government's chief administrative officer, the state Records Committee and the courts from releasing records via the balancing test -- the weighing of the public interest against the government's need to conceal the information.

"Miscategorization would be the only argument to make a protected document public," Campbell said, describing the balancing test as the release valve for extraordinary cases where the public has the right to know.

"This bill is a step backward and would restrict our current law significantly," said Steve Bloch, an attorney for the Southern Utah Wilderness Alliance. The environmental group pushed for AG records on wilderness road designation and won access to the records in the Utah Supreme Court in December.

"The intent of the GRAMA statute is to favor disclosure," Bloch added.

HB122 would also extend records protection to "anticipated" legal action.

"Any entity could say they're thinking about a lawsuit," Bloch said. "This really would allow the exceptions to swallow the rule."

Attorney Jeff Hunt, an open records expert who also represents the media coalition, said HB122 would deny access to records of vital public interest, including audits, investigations and personnel proceedings.

"Allowing the court to view those records and determine whether they should be released -- it serves the public interest to keep that discretion," Hunt said.

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HB122 GRAMA amendments

Records could be withheld if they are associated with pending or "anticipated" litigation.

The law would prohibit using a "balancing test" weighing public interest versus privacy concerns to force open protected government records.