Don't expect them to break out in a chorus of Kumbaya, but three months after their divisive first meeting some members of a group tasked with looking at Utah's open-records law say the process worked and is likely to yield some improvements that benefit both government entities and the public.
At what is expected to be its last meeting, the GRAMA Working Group on Wednesday will decide which proposals to forward to the Utah Legislature to consider as changes to the Government Records Access and Management Act.
Among the ideas: adoption of a standardized fee structure; require annual training on the law; eliminate a conflict between the act's intent and statutory sections about when to favor access; ensure as many public records are easily available online, at no cost, as possible.
"It's been a good process," said Sen. Stuart Adams, R-Layton. "Did I learn something? Absolutely. Have my opinions changed? Yes, somewhat. I can see a little more of the other side of the issue. Do I think there will be resounding, unanimous agreement? I don't know if we are there yet. I think there are still some unanswered questions and there will continue to be."
The unanswered questions include whether to define text messages and other new types of instant communication as public records and what protections, if any, to extend to emails from constituents.
Lane Beattie, a former legislator who chaired the working group, was adamant from the start that its charge was merely to make suggestions, not to propose legislation. Today's meeting will determine which ideas, if any, move forward.
"If you can't get a consensus out of the [working group], I don't think there will be much action," Adams said. "If all the media folks vote one way and lawmakers the other, there is not going to be much interest."
The furor that erupted in the waning days of the 2011 legislative session over lawmakers' attempts to modify the state's open-records law without much public scrutiny has subsided; in fact, only a handful of activists who stormed the Capitol this spring followed the GRAMA Working Group's proceedings.
Jeff Salt, of the Jordan River Restoration Network, was one of them, and became a quasi-official participant in one of the working group's subcommittees. He predicts the process will yield refinements not the overhaul that played out as the legislative session ended.
"What we found through the process is there isn't much in the statute that needs overhauling," Salt said, though "there may be a need for an ongoing, continual review of the statute to make sure the public records law is in step with technology and with the way people access records and how they get involved in government affairs."
Lawmakers also now know there is "extreme and high interest in public-records law and the people's business," he said. "Messing around with the law has consequences, and the public is watching."
Lesson learned, said Rep. Stephen Handy, R-Layton and a working-group member.
"We should have put the yellow flag, the caution flag, out and taken more time," Handy said. "I don't want to ever be part of anything like that again."
Numerous lawmakers have said they acted to change the law because of concerns raised by John Fellows, the Legislature's general counsel; some also objected to having legal staff vet their email in response to records requests, going so far as to call that a Fourth Amendment violation.
"I think John Fellows confused us," Handy said. "In the heat of the battle, as the session was winding down, we were confused. I don't think it was bad counsel, but it was confusing and there were a lot of moving parts."
Mike Wilkins, a retired Utah Supreme Court justice and working-group member, told several lawmakers during a subcommittee meeting last week they were free to do their own culling in response to a records request. Counsel would likely propose the most conservative approach because "it's safer for you," Wilkins said, before adding that Fellows had interpreted the law "in a more conservative way than I might."
"It is a convenience to have lawyers on staff who can advise you, but I don't think you're obligated to follow their advice," he said.
Fellows said he can't speak about legal advice he gives lawmakers, but he and his staff seek to give advice based on sound interpretation of the statute and case law.
"But we also are aware other lawyers may disagree with that interpretation," Fellows said.
Going forward, Handy said there is little passion to pursue major changes in the act at this point, though "we clearly see there are things that can be brought that will be improvements to the statute." And some tweaks are needed, he said, to ensure the GRAMA process is understood, works efficiently and isn't a financial burden on government entities or citizens.
Jeff Hunt, a media attorney who served on the working group, said he never expected "earth-shattering legislation" or "magic bullets to solve everyone's concerns" to come out of the working group.
"What I was hoping for was that through dialogue and face-to-face encounters, people would gain understanding and empathy for the status of open records," Hunt said. "I think that has been accomplished."
The group has come up with a number of good ideas that Hunt and others expect the Legislature will "look hard at."
Most of the recommendations are small changes that largely leave GRAMA alone, "which is what needed to happen in the first place," said Linda Petersen, president of the Utah Foundation for Open Government and a working-group member. "What we needed all along was clarification."
"There has been some good work done, and hopefully the Legislature will take the recommendations of the working group and next year infuse a bill with these clarifications included," Petersen said. "For the Legislature to go back and ignore this working group, that's always a fear, but that would be too unfair to their colleagues and others who have invested a lot in this."
And the proposals are â¦
The GRAMA Working Group and its four subcommittees have come up with numerous proposals, which will be discussed Wednesday at 9 a.m. in room 445 of the State Capitol Building. The ideas that have emerged from the subcommittees but have not yet been adopted by the whole working group include:
Put more records that are clearly public online and available at no cost.
Adopt a standardized fee formula, perhaps based on the size and scope of a public entity, that better accounts for costs.
Adopt the same attorney/client privilege that protects work products in the private sector to the public sector.
Revise the statute so there is no conflict between the balancing test governing access described in the act's intent language and other sections.
Require simultaneous notification of the government entity by the requester who appeals a records denial to the State Records Committee.
Require those who respond to records requests to complete training annually; also, provide annual training to lawmakers.
Add a "safe harbor" provision to protect government employees who make a good faith effort to comply with the law.