If the records bill passed by state legislators becomes law, here's one thing the government or the courts may have to decide: What is "reasonable anticipation"?
Applied liberally, the words could shield records the public currently can access.
HB477 says government does not have to disclose records prepared in "reasonable anticipation of litigation that are not available under the rules of discovery." Rules of discovery are the laws and administrative codes dictating what materials plaintiffs, defendants and third parties must share with one another before trial. The next paragraph in the bill says government may withhold most documents created by an attorney for "reasonably anticipated" litigation.
Under the current version of the Utah Government Records Access and Management Act (GRAMA), such documents can be withheld only if a lawsuit has already been filed or a plaintiff has given notice one will be. The change could mean cities, counties, school districts, the state and other government bodies can deny record requests if they suspect the subject matter will be in a future court case.
The "anticipation" language in HB477 has not received as much scrutiny as changes affecting fees and access to electronic records. That might be because attorneys seem divided on what the language's impact will be.
Mike O'Brien, an attorney for The Salt Lake Tribune, a statewide media coalition and who also has practiced municipal law, said in an e-mail he does not think the changes are significant. He said the new language is "consistent with the long-standing definitions of work product commonly understood in the court system."
Work product is the material prepared by an attorney and is hidden from other parties under what's known as the attorney-client privilege. HB477, however, would not limit the document preparation to attorneys.
If taken at face value, the bill would extend the protections to other government employees who suspect a lawsuit. Then there is the definition of "reasonable anticipation" of litigation.
"Basically what they're saying is if we know we're doing something really wrong and we know someone is going to sue us for it, then all the documents in preparation for that eventual suit can be protected," said April Hollingsworth, a Salt Lake City labor law attorney who has sued local and federal agencies. "It seems like an attempt to hide corruption."
Hollingsworth said she has a pending GRAMA request on behalf of a client who says she was sexually harassed. The suspect was criminally prosecuted, and Hollingsworth wants records from the prosecution file. No lawsuit has been filed, and Hollingsworth said that if HB477 were law, the prosecutor could refuse the request out of concern they will pertain to a lawsuit.
Attorney Edward Havas, whose personal injury law firm has represented families from the Crandall Canyon Mine disaster and the 2009 Logan canal slide, finds the new language vague. He said just about everything could be claimed to have a reasonable chance of being subject to a lawsuit, allowing materials to be cloaked from public disclosure.
"My personal view is public documents should be public," Havas said.
Lawyer Peter Stirba sees the language as giving government the same protections private citizens have in the courts. Stirba, who has represented cities and counties, said currently people can request records prepared by attorneys that cannot be acquired through discovery.
Stirba could not recall an example where that happened but said he has feared the possibility enough that he has curtailed giving some advice to clients knowing it could be released through a records request. Stirba believes the HB477 language would result in more record requests being denied but said that may be to the taxpayers' advantage.
"It will help the government make a wise choice given the prospect of litigation," Stirba said.