This is an archived article that was published on sltrib.com in 2010, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
Open-government advocates are concerned that a Utah Judicial Council proposal to allow the council to review nonpublic records in secret may be in conflict with the spirit and letter of Utah's open-meeting law.
The Utah Courts' top administrative body has proposed a rule that would allow members to discuss nonpublic records in executive session. This idea of melding Utah's twin "Sunshine Laws" — the open-meetings law and records law — raises several red flags. It may also have broader policy implications for other government bodies.
Since the Legislature enacted Utah's records law, the Government Records and Management Act (GRAMA), nearly 20 years ago, there have been attempts to apply GRAMA record exemptions to the Open Meetings Act. However, lawmakers have rejected such amendments. Open-government advocates have opposed such moves because they believe there is a big difference between information that is "protected," "private" or "controlled" under GRAMA and the discussion about such information by a public body.
The Judicial Council simply views the proposed rule change as a technical fix that wouldn't be used often, according to Nancy Volmer, the Utah Courts public information officer.
"The key here is that would be used in rare circumstances. The Council feels it would be advantageous, at times, to discuss a private document in a closed session," Volmer said noting any final decision relating to the records would be made in open session.
However, others see room for abuse.
Linda Petersen, president of the Utah Foundation for Open Government, said, "This Judicial Council rule would effectively create hundreds of new exemptions to the Open Meetings Act, unnecessary exemptions. Under GRAMA, these records are handled appropriately. Discussion of them should not need to be done in a closed-door meeting."
The records law, GRAMA, declares that government records are classified public unless otherwise exempted by law. The long list of exemptions includes everything from personal medical records to blueprints for the state prison to names of researchers who use animal subjects.
First Amendment attorney Jeff Hunt said potential for closing meetings based on a record classification is too great and there is no need for such a "breathtaking exception."
"Public bodies typically do not need to close meetings for their members to review nonpublic records; closure should be limited to the already existing exceptions," Hunt said.
Under Utah's Open and Public Meetings Act, there are 10 exceptions public bodies may use to convene an "executive" or closed session. The most frequently cited reasons for closing meetings include the discussions of the character or professional competence of an individual; collective bargaining; pending or reasonably imminent litigation; and sale and purchase of property.
While it may be a bit cumbersome, practice has shown discussions about nonpublic records can be made in public. For example, Utah Public Service Commission refers to "protected" documents and information in open meetings.
The state Records Committee does discuss some document contents in closed meetings. Committee members must review nonpublic documents to determine if they should be released to the public. They often discuss the substance of documents in closed session and then openly debate the merits of releasing records in an open meeting, said Betsy Ross, a records committee member.
Public comment on the proposed Judicial Council rule change can be made at http://www.utcourts.gov/cgi-bin/mt3/mt-comments.cgi?entry_id=1442. The public comment period ends Oct. 19.
Joel Campbell is a former reporter and current associate professor of communications at Brigham Young University. His reporting does not necessarily reflect the views of BYU. He writes on First Amendment and open-government issues for The Tribune. He can be reached at foiguy@gmail.com.