There’s a fundamental concept that underlies our democracy. As citizens, we have a right to know how the people who work for us and make decisions about our future are conducting business.
That premise has given rise to open records laws at the state and federal level that have, by and large, served Utahns well.
But the laws are only as reliable as the officeholders they are intended to regulate, and a case before the Utah Records Committee recently illustrated a gaping loophole.
Mark Allen, who is a bit of Utah County gadfly (and good for him for doing it), filed a series of open records requests under the Government Records Access and Management Act regarding an attempt by a developer to acquire land at the top of Bridal Veil Falls, a treasured landmark in the county, for a exclusive drug rehab facility.
Allen requested all text messages to Utah County Commissioner Bill Lee about the proposal, but the county denied the request because Lee used his private phone and said no records existed. The county said it couldn’t force Lee to turn over his phone and check.
Allen knew that wasn’t right because he had been given a copy of one text message about the falls sent to Lee by a constituent. So Allen filed an appeal which, under the law — wouldn’t you know it — goes before the chairman of the commission, Bill Lee, who never responded to the appeal
So Allen appealed to the State Records Committee.
“This is a landmark case,” Allen argued before the committee June 10. “This is probably the most important case you’ve heard in the last 10 years.”
Committee members empathized with the situation, but said in a unanimous opinion that its hands were tied. It doesn’t have subpoena power or any other way to compel Lee to prove the records don’t exist or perhaps existed on his private phone.
It doesn’t take a genius to see how problematic this precedent might be. Government watchdogs now have to trust the subject of the request to not only have kept all the records on a private device but also to turn them all over when they’re requested.
The law is only as good as the officeholder is honest and the public only gets to see what he or she thinks the public deserves to see.
“There should be something that mandates that government entities of any form are aware of what government officials are doing on their electronic devices,” said records committee member Tom Haraldsen. “We can’t order them to, say, go to Commissioner Lee, fork over your phone. We can’t do that. They’ve asked him if there was evidence. He says there’s not. We’re not authorized to question whether he’s right or wrong or order him to prove it.”
Setting aside whether Lee was telling the truth, going forward this ruling leaves us in a place where any unscrupulous lawmaker who wants to do a deal and keep the public in the dark can do it on a private device and then either delete the messages or deny they exist. Technically, either act could be a crime in itself, but that assumes they ever get caught.
I’ve experienced this before. While I was helping to investigate then-Attorney General John Swallow, I requested Swallow’s correspondence, which argued that online gambling should not be barred in Utah, an opinion that Jeremy Johnson, a major donor in the past, was pushing for.
The office said there were no such records, even though I knew there were. I asked officials to look again and got the same answer. Months later, the records I was looking for were found on Swallow’s private computer after they were subpoenaed by investigators.
It’s not unique. Politicians frequently are trying to avoid transparency and accountability to the public.
Back in 2011, when the Legislature tried to rewrite the state’s open records law, legislators tried to exempt all text messages from public access. Can you imagine where we would be today if the public backlash hadn’t forced them to back down?
Several years ago, I was in a Republican House caucus meeting when the Legislature’s attorney advised members to “delete early, delete often.” Indeed, one prominent legislator told me at the time that his intern’s last assignment of the day was to delete everything in his email inbox.
(This, by the way, is legal because the Legislature has exempted itself from records retention requirements and is not subject to the State Records Committee.)
Today, with the proliferation of secure messaging apps, it’s easier than ever for politicians to do public business in private. There are dozens of Utah politicians and lobbyists, for example, who use Signal, an encrypted messaging service.
So what do we do about it?
The State Records Committee proposed educating officials about their obligation to maintain public records and disclose them when they are requested and recommending the Legislature address the gap next session.
“Processes need to be developed to maintain a record of the public business,” said committee member Nancy Dean.
If technology is the problem, perhaps it’s also the solution. Apps exist that can be installed on a phone to archive official communications and, at a minimum, the law should require that those who use their personal phones for government business use the software to archive records and create a log of official communications.
Politicians won’t like it — they rarely embrace transparency. So it will take public pressure on legislators to change the law to ensure that citizens have access to the information they have a fundamental right to know and that the public business is indeed done in the light of day.
June 23, 11:16 a.m. • The story has been updated to correct the name of State Records Committee member Nancy Dean.