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Should records fee waivers be mandatory? Legislature puts off answering question

Published March 7, 2013 3:17 pm

This is an archived article that was published on sltrib.com in 2013, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Rep. Brian King attempted to address one of the issues that the GRAMA Working Group failed to in the wake of the HB477 debacle of 2011.

The Salt Lake City Democrat's HB122 would have required a government body or agency to waive fees for records, once it has been proven that releasing the record would benefit the public more than an individual. Currently, the Government Records Access and Management Act states that entities "may" grant fee waivers when requests are made that are deemed to be in the public's interest.

Instead, the measure has been thrown into interim study, where King and opponents of the bill are supposed to work out their differences, with the hope of bringing it back in the 2014 General Session.

When then-Rep. John Dougall, R-American Fork, unveiled HB477 in the waning days of the 2011 Legislature, one of its provisions called for including administrative and overhead costs in the "reasonable costs" of producing a document. Which meant that an entity could not only charge for the actual cost of copying the document (which, ideally, should never be more than 2 cents a copy) and the salary of the lowest-paid person who can handle the request, but the employee's benefits, the utilities for the office building and whatever else they wanted to tack on.

Fortunately, HB477, and its onerous fee schedule, were repealed amid the great public outcry from both ends of the political spectrum, and a task force was formed to address the so-called problems with GRAMA.

King, who sat on the task force, said the fee issue was one that the group didn't address, and he decided to tackle it as a legislator.

His bill left entities the discretion of determining if a GRAMA request met the public-interest test — was the person seeking the records for the greater public good or for a purely personal reason? But, once a request was deemed to be in the public interest, the fees had to be waived, no ifs, ands or buts.

Not surprisingly, the Utah League of Cities and Towns objected. Lynn Pace, a member of the league's board of directors, painted a dire picture of city recorders and county clerks getting swamped with voluminous records requests that had to be granted at no cost to the requester.

"If you broadcast in advance that whatever you are asking for is free," Pace warned members of the House Political Subdivisions Committee, "the requests will get larger." He even pointed to the Alta case, where a records request ran into thousands of pages and tens of thousands of dollars in fees.

But open-government advocates are quick to note that the Alta case was an extreme outlier, which is not a sound basis for making policy decisions.

But the current policy opens the door to potential abuse, with the fees used as more than recouping the basic copying costs.

"Fees can be charged in such a way that , even though, a document or record being requested is public, the fees that are charged could restrict access," Betsy Ross, former State Records Committee chairwoman, said in a recent interview.

And the Utah State Records Committee has agreed, arguing in one case that a Department of Corrections policy limiting inmates to 100 fee pages of documents a year was denying access to records for inmates who couldn't afford to pay for additional pages. While the committee said the department could charge for copies, it couldn't use fees to block an inmate from just looking at the records.

When Utah Democrats sought records on how the Republican-dominated Legislature conducted the recent redistricting process, it was denied the records because lawmakers chose to bill them — and others who asked for the records — $15,000. The records were eventually posted online after several media outlets requested access to the papers, convincing the legislative leaders that there was a "legitimate" public interest in the information.

Open-government advocates should use the interim meetings as a time to show legislators that waiving fees for public-interest requests is worth more in credibility and transparency than the money entities may get from a requester.