This is an archived article that was published on sltrib.com in 2011, and information in the article may be outdated.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.
Stuart Reid says he voted against repealing a controversial open records law for one reason: To protect private communication that staff attorneys warned was subject to public disclosure.
It was the core issue for him, and his colleagues, according to Reid — not records fees, fishing expeditions or a desire for secrecy.
"Our intent was to protect privacy rights of ourselves, our families, clients and constituents who think they communicate with us privately," said Reid, a freshman GOP senator from Ogden.
Reid said he finds it galling that a staff attorney or some other government official could be asked to search his private phones and computers to determine if anything involves public business — a problem not solved by later excluding a record as private or redacting personal information.
The intrusion comes in the review, said Reid, who does not have a state-funded phone or computer.
"What if my wife texts and asks me at 3 o'clock to rendezvous with her?" he said. "Some government official gets to read that text."
Reid was among eight Utah lawmakers — five in the Senate — who voted against recalling HB477 during a March 25 special session. The bill changed the presumption in the state's Government Records Access and Management Act (GRAMA) that records are public, added new fees and exempted text messages, instant messages and video chats from public access.
"I've been called un-American, I've been called a traitor and worse because I voted for HB477, when, in fact, what we were trying to do is resolve a legitimate issue," Reid said in explaining his vote.
HB477 wasn't perfectly worded and the process of passing it could have been better, Reid said, but the media ignored its primary intent and was unbalanced in coverage of the issue.
Reid said he was persuaded to vote for the bill after staff attorneys advised legislators their private communications, including those occurring on privately-owned devices, aren't safeguarded under the law — a disputed contention.
Reid also said he was concerned the law hampers his ability to provide oversight of state agencies and investigate allegations of wrongdoing. What if a government employee has tipped him off about something amiss in a state agency? Reid fears such investigations could be compromised by a GRAMA request.
"I'm now trying to protect my sources, and now I can't do that because I've been GRAMA'ed," he said.
But Jeff Hunt, a media attorney and member of the GRAMA Working Group, said the law already protects information related to investigations.
Reid is not a member of the working group, which is currently reviewing the act. But his concerns about how GRAMA treats private electronic devices and lawmakers' personal communications is figuring in the group's discussions.
Records experts say it is not who pays for the device that matters, but how a lawmaker uses it.
"If you are doing the public's business on a device you own, those records should be subject to GRAMA," said Hunt.
Putting private devices outside GRAMA's reach just "creates potential for the public's business to migrate to those devices," he said. A simple solution is for government officials to not conduct public business on their private devices and vice versa.
"If there is no reason to believe a public record is on a private device, why would you ever search it?" he said. "When the records are mixed, that's where you have the challenge."
Even then, narrow search terms can be used to filter records to ensure that only specific documents related to a request are reviewed — and others aren't read, Hunt said.
Hunt also disagrees that "having your own lawyer look through your emails to find search terms is a Fourth Amendment violation," as Reid and other lawmakers have suggested.
Michael Wilkins, a former Utah Supreme Court justice and working group member, sent a memo to the group Thursday that touched on the privacy debate. State and federal constitutions and laws spell out those rights, and sometimes put limits on them, he said.
Judges, for example, forfeit their right to express political views, make political contributions or support political causes under Utah law, Wilkins said.
"This is one of the 'costs' of accepting the job," he said. "Other public officers and employees also pay a price for accepting public positions."
Public officials are given less protection against false claims and also are "subject to greater disclosure of private and personal information" because of their positions, Wilkins noted.
"However, the right to conduct one's private affairs in private is not usually forfeit by election," he wrote.
That's what Reid says he wants clarified, a point he said the media refuses to acknowledge.
He also thinks the public doesn't understand that, in general, their correspondence with lawmakers is not confidential.
People say things in emails they would never say in conversation, Reid said, and "most would be mortified if they understood that their communication could be caught up in a GRAMA request."
GRAMA should provide a way for lawmakers to alert constituents about the potential for disclosure and let them make that choice, Reid said. But he doesn't expect that will get addressed by the working group.
"I have zero hope anything will come out of that group," said Reid. "There is no interest on the media's part to protect privacy of legislators and their constituents."
Twitter: @Brooke4Trib —
GRAMA group gets new website
O The GRAMA Working Group's website debuted Monday, with a public comment forum, video feeds of meetings and links to articles about the state's open-records debate.
Gramarevisited.com • The site also offers links to policy questions the group is considering, a list of committee members and a live Twitter feed of GRAMA-related commentary.
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Working groupto meet again
P The working group will next meet on April 13 at 9 a.m. in Room 210 of the Senate Office Building. —
Editor's note
This is part of a series of occasional stories that will examine claims and issues raised in the public debate on Utah's open-records law.