A subcommittee looking at the most hotly debated aspects of Utah's open-records law will recommend eliminating inconsistency in the standard to be used when balancing competing interests a glitch that led to a Utah Supreme Court decision some lawmakers viewed as usurping their authority.
The statutory definitions subcommittee will suggest the Legislature clarify that in any balancing test, records are deemed public when the interest in access is "equal to or outweighs" the interest in protecting them. Currently, the Government Records Access and Management Act provides conflicting guidance to the state Records Committee and courts reviewing records disputes.
The act's introductory intent language favors public access when competing interests are "of equal weight." But later sections say interest in access must "outweigh" the interest in restricting access. The Utah Supreme Court held in a 2008 ruling that the intent language trumped the rest of the statute.
Those recommendations as well as suggestions from three other subcommittees on how to update the law will be vetted by the GRAMA Working Group at its final meeting on Wednesday.
The subcommittee also will propose that a higher "preponderance of evidence" standard be used in the balancing test for protected records, as proposed several years ago in a bill sponsored by Sen. Curt Bramble, R-Provo. One of the notable categories of protected records: personal files of lawmakers, including "personal correspondence to or from a member of the Legislature."
Other records currently classified as protected in the statute include real estate appraisals, bids submitted but not yet awarded for public projects, ongoing investigations involving civil, criminal or administrative enforcement actions and operation of correctional facilities.
Former Utah Supreme Court Justice Mike Wilkins, a member of the subcommittee, also is drafting language that may provide greater protection and may even recommend disclosure exemption of emails lawmakers receive from their constituents, an issue of concern to many lawmakers.
"I'm not sure it's a bad idea to consider carving out constituent emails to legislators as a separate category," Wilkins said Thursday.
Jeff Hunt, a media attorney and member of the statutory definitions subcommittee, "strongly disagrees" with suggestions that constituent emails should be put off-limits, arguing that GRAMA already provides for a case-by-case review that protects the most sensitive information from being publicly disclosed.
"It adds integrity to the process to know the public can get those," he said.
There are competing ideas from the subcommittees on how to address constituent emails. One group is suggesting the Legislature adopt a notification system that lets people know emails to lawmakers could become public in a records request. Another group objects to that approach because of its "chilling effect."
The statutory definitions subcommittee also will recommend that the GRAMA Working Group suggest the Legislature modify the open-records statute so it more clearly protects documents exchanged between elected officials and their attorneys and not related to official business. It also will suggest a requirement that government entities be notified simultaneously when appeals are filed with the state Records Committee.