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Lawmakers make it easier for Utahns to search court cases online, as one change to public records laws this session

But state legislators limited the release of arrest booking photos before a person is convicted.

(Francisco Kjolseth/The Salt Lake Tribune) Members of the House of Representatives are partitioned by Plexiglas as the Utah Legislature opens the 2021 legislative session at the Capitol in Salt Lake City on Tuesday, Jan. 19, 2021.

Utahns will be able to more easily search court records online, under a new law passed by the state Legislature, but they won’t be able to access booking photos as often as they could before.

Critics of both bills said they worried about unintended consequences — as arrest photos of people who have not been charged, or charges against people who have not been convicted, could be widely shared online before a defendant has his or her day in court.

“Once it goes out to 20 people or gets posted on social media, it’s never coming back,” Steve Burton, a criminal defense lawyer, told a legislative committee in February, while speaking against the court records bill.

Others argued that these are public records, which means they should be available to Utahns.

“Anytime you have public records, there’s always a potential for abuse. And I think any legislation should be targeted at the abusers, not at the people who are lawfully accessing and using public records,” Jeffrey Hunt, a First Amendment and media attorney at Parr Brown Gee & Loveless in Salt Lake City, told The Salt Lake Tribune earlier this month.

This past session, legislators also worked on bills related to public access to property code violations, the names of college president finalists and Board of Pardons and Parole deliberations. Gov. Spencer Cox signed some of these pieces of legislation this month, including the bills limiting access to booking photos and opening up access to online court records.

Access to Xchange

The goal with HB249, according to Rep. Steve Handy, is to help Utahns vet the people they meet on dating apps.

Under the bill, people could pay a small fee — roughly $5 or so — to perform a limited number of searches on Xchange, the state’s online public court system. Currently, users have to pay for a more expensive monthly subscription to see the records online. The public also can go to courthouses to look up cases for free.

It’s unclear when exactly Utahns could start searching court records online, since the bill doesn’t include a specific date. But Michael Drechsel, assistant state court administrator, said in an email earlier this month that the funding that would make this access possible becomes available July 1, “so that is the earliest that the project could officially begin.” He added, “it will be a priority for our development team.”

Handy, R-Layton, said the impetus for the bill came from a woman named Lara Wilson, who reached out about creating a domestic violence registry, similar one for sex offenders already in place in Utah.

“If I had known my ex-boyfriend’s violent history, I would not have dated him, and I would not have suffered the abuse that I did,” Wilson told a legislative committee.

Rather than creating a registry, Handy determined that access to Xchange and records already available to the public could accomplish the same goal.

(Rick Egan | The Salt Lake Tribune) Rep. Steve Handy speaks on the steps of the Capitol on Wednesday, Feb. 10, 2021. Handy proposed a bill last session, which was signed by the governor, allowing Utahns to search court records online for a small fee.

Burton, who’s the director of the Utah Association of Criminal Defense Lawyers, said he worried that these searches would not be limited to cases where there’s been a conviction. Searchers will see if a person has an ongoing case and may assume they’re guilty, before that person is afforded their due process rights and while they are presumed innocent, he said.

The bill also isn’t limited to criminal cases, and people could see other filings, such as for hospital liens, debt collections and divorce proceedings, Burton said.

At one point during the session, HB249 was narrowed to just allow access to domestic violence cases. After it moved to the Senate, though, “the Senate sponsor and the Senate did not agree with that, and in consultation with the courts, brought the original language back,” Handy told his colleagues on the House floor.

Releasing arrest photos

Another bill signed by Cox last week, HB288, would make photos taken by police after someone is arrested a protected record, and would prohibit police from sharing these photos with the public or media unless that person is convicted or a judge orders its release. Law enforcement could still use the images, though, if a suspect poses an “imminent threat” or is a wanted fugitive.

Rep. Keven Stratton, R-Orem, said his bill “seeks to address the inequality” in “today’s high tech world when a mug shot is released based on arrest or accusation,” causing a person to have “a virtual scarlet letter.”

Supporters, including Utah County Attorney David Leavitt and Lex Scott, leader of Black Lives Matter Utah, said they worried about how these mug shots can remain online years after a person is arrested. Scott also pointed out that these images are often released after people are killed by police, even if they have not committed a crime.

(AP Photo/Rick Bowmer) Rep. Keven Stratton, pictured in 2018, ran a bill during the 2021 session addressing when mug shots can be released.

Utah’s Media Coalition, which includes The Tribune, opposed the bill, arguing that the media regulates itself when using these photos, which can help journalists see whether a person was injured during an arrest.

“These are records that are created by the government at taxpayer expense. They document a very important part of the law enforcement process ... and they should be public records,” said Hunt, who represents the coalition.

Hunt said he thinks the discussions around this bill stem from a law passed by the Utah Legislature in 2019 to stop websites that post arrest mug shots from demanding hundreds of dollars to remove them.

One difference between HB249 and HB288 is that mug shots are generally taken after a person is arrested and before official charges may have been filed, while Xchange largely provides access to cases that have been reviewed for charges.

Still, Hunt said even if a person is acquitted or has their charges dropped, “that doesn’t mean we deny access to those court records.”

“It’s vitally important that we have access to the records and the proceedings so that the public has confidence in the process. And the same is true with law enforcement,” he said.

Other public records bills

A bill from Sen. Karen Mayne, which would have made residential zoning violations a protected record, didn’t move in the Legislature this year. But she plans to bring it back next session, she said, after she has time to do more research.

Mayne said she drafted SB111 after hearing about “people that aren’t reputable” looking up these code violations and going after Utahns, scaring them that they’ll buy their homes away. They try to swindle vulnerable people, such as the elderly, she said.

Another bill passed by the Legislature and signed by the governor, HB379, exempts the “deliberative process” of the Board of Pardons and Parole from the state’s open meetings and records laws. This doesn’t make anything inaccessible that was previously accessible, according to Mike Haddon, the board’s administrative services director. It just makes the distinction clear in state law, he said.

Legislators also scrapped a provision in a bill that would have shielded the names of finalists applying to become president at one of the state’s public colleges.

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