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Nation criticizes Utah's call for records secrecy

Published March 7, 2011 11:22 am

Legislature • Experts say Utah's record laws would be no better than a Third World country's and allow corruption.
This is an archived article that was published on sltrib.com in 2011, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Chip Stewart is 950 miles from the nearest Utah town, but he still weighed in on a bill that would restrict access to Utah records.

"Let's be real," Stewart, a media law professor at Texas Christian University, said in a Tweet on Saturday, "what's happening in Utah is more of a threat to democracy than anything in Wisconsin or under Obama; we must be transparent!"

Criticism of the bill spread beyond Utah over the weekend as open-government experts elsewhere took notice. Law schools and journalism schools often have faculty members who study government transparency and laws like the federal Freedom of Information Act, as well as state statutes.

"Point after point, Utah's record laws are going to be more backward than a Third World country's," David Cuillier, an associate professor of journalism at the University of Arizona, said Sunday. "That's not hyperbole."

Cuillier pointed out that the Mexican Freedom of Information Act specifies that electronic records be public, greatly restricts what the government can charge for records and places the burden on the government to show why something should not be disclosed.

The Utah bill, HB477, would prohibit the disclosure of text messages and instant messages, allow government agencies to charge fees that can include administrative and overhead costs and require requesters wanting records protected by the government to show with a preponderance of evidence the records should be released.

"In Mexico they favor disclosure, not secrecy," Cuillier said. "In Utah it would be the other way around."

Cuillier's comments were sent to members of the Utah chapter of the Society of Professional Journalists, who said they forwarded them to Gov. Gary Herbert. Herbert can veto the bill but has not yet indicated whether he will.

The Utah Senate heard just a sampling of the out-of-state concerns Friday when Utah media attorney Jeff Hunt relayed to a Senate committee information from the Reporters Committee for Freedom of the Press. That organization, based in Arlington, Va., said it was not aware of another state that completely seals text messages the way HB477 would.

"It's gotta be a lobbyist's fantasy," said Charles N. Davis, a University of Missouri professor specializing in open-government laws. " 'Give me your cell phone number, Mr. Legislator, and we can have a private text conversation 24/7, even if you're on the floor.' "

Criticism escalated over the weekend. The Associated Press wrote a story about Friday's passage in the Senate and distributed it to its members across the country to place in their newspapers or websites.

Critics took their displeasure to Twitter.

The Student Press Law Center, also based in Arlington, in a website post Sunday referred to HB477 as "The Great Utah Railroad Job."

"The bill by Rep. John Dougall … was sneaked through the Legislature under circumstances suited to a national-security emergency," the Law Center wrote, "from initial committee hearing to enactment by both houses of the legislature in three days flat."

"To be clear," the Law Center added, "this bill is about protecting the ability to govern corruptly and about nothing else."

Stewart learned of HB477 on a friend's Twitter feed. Then he read the bill for himself.

"It was so shocking and I had to go and reread what I was reading," Stewart said in an interview Sunday.

Stewart said that while President Obama riled conservatives with healthcare reform and the Wisconsin governor has angered liberals by trying to limit collective bargaining for public workers there, at least those politicians ran on those platforms. But Utah legislators, Stewart said, never ran on a platform of limiting records or gave other warning of what was coming before unveiling their bill Tuesday.

As for the provisions of HB477, Stewart said exempting the Legislature and any text messages and instant chat from Utah's records law, as well as permitting government to charge more fees, would prevent citizens from obtaining records.

The provision for charging fees is "unbelievably and purposely vague," Davis said. "It was written in a way that places all of the discretion on the government clerk to price [a request]. ... Pricing will be dependent on whether the clerk likes you, whether the clerk likes your request, whether the agency likes you, whether or not you are with news media, whether or not you're the local gadfly. It's a recipe for disaster."

Even worse, he said, is the elimination of language in the original GRAMA (Government Records Access and Management Act) law that explains what lawmakers intended when they passed it in 1992. The repealed section declares constitutional obligations to provide public access to government information and protect personal information. It also declares that, when all interests for releasing and protecting a record are equal, the record should be public.

Supporters of HB477 said that language would allow for too much interpretation in courts. But Davis said striking that section would reverse the philosophy of a law that previously favored public access to information and put the burden on the government to prove that a record should be hidden.

"What it is saying is, 'You, the citizen will fall prostrate before us and we will make decisions.' It is a complete reversal of sovereignty," Davis said. "This is a return to the English monarchical view of freedom of information."

Stewart said Utah's current record law placed the state in the top half of the country for openness. With HB477, "I think it drops you into a bottom five," Stewart said.

Davis went further.

"I want Utahns to understand they ... have exited the ranks of states that have a functioning freedom-of-information law," he said. "People always ask which are the strongest FOI laws and which are the weakest. Utah won't even be ranked. There's the 49 states and the District of Columbia — and then there's Utah, which has decided to leave the business."

Cuillier worries other states may follow Utah and close records. "That stuff can spread, and I just wonder if people care," Cuillier said.

ncarlisle@sltrib.com

Erin Alberty contributed to this report. —

What's next • Psst, pass it on: Rally at the Capitol

P A rally protesting government secrecy is scheduled for noon Tuesday at the Capitol. It is being organized by Bob Aagard, a former Utah Democratic Party staffer.