Utah lawmakers passed new legislation to hide their official duties from the public

Lawmakers passed numerous bills during the 2024 legislature session to make elected officials’ information more private and to keep more of their public business a secret.

(Trent Nelson | The Salt Lake Tribune) The Utah Capitol in Salt Lake City on Wednesday, Feb. 28, 2024.

On the same day a state judge ruled that Utah Attorney General Sean Reyes’ official calendar should be public under state records law, the Legislature passed a bill rewriting the law to keep the calendars of any elected official or government employee secret — including their own.

Gov. Spencer Cox signed the legislation, SB240, almost as soon as it hit his desk, immediately turning it into law.

It reversed a decades-long precedent during which calendars of attorneys general and governors were provided without protracted litigation or attempts to change the law.

The decision to deny the public access to official calendars was just one of many pieces of legislation that will make Utah government more secretive. According those who have followed Utah’s transparency laws for years, this year’s effort to cast a greater shadow over elected officials harkens back to 2011 when lawmakers rushed through HB477, a law that would have gutted Utah’s open records law had they not repealed the measure after furious public backlash.

“I think it has been the worst session for government transparency since the HB477 debacle,” said Dave Reymann, an attorney who has handled numerous public records challenges, including the attorney general’s calendar case.

The case stemmed from a request by KSL for Reyes’ calendars that his office refused to provide and went to court to block the release. The Salt Lake Tribune also requested the calendars as part of an investigation into frequent, lavish campaign trips Reyes had taken.

Judge Patrick Corum ruled that Reyes’ official calendar is a public record and ordered them released. The attorney general’s office said it would appeal. But the Legislature pushed through legislation that, going forward, would prevent the release of any calendar to the public.

“The Legislature felt very strongly that that was never the intent of the [law] and so this was a clarifying piece for them that was important to them. So, that’s why I signed the bill,” Cox told The Tribune, adding that he would continue to voluntarily make selected events from his calendar public.

The Legislature went a step further, adding “intent language” to the bill — and sending a message to the appellate court — that lawmakers never intended calendars to be public when they passed the Government Records Access and Management Act in 1991.

“We’ll certainly leave whatever the judges do to the judges,” said Rep. Brady Brammer, R-Lehi, “but we have seen that the judges are oftentimes looking to what we say on the floor and in debate, sometimes even more closely than what we put in the bills.”

(Trent Nelson | The Salt Lake Tribune) Rep. Brady Brammer, R-Highland, speaks at the Utah Capitol in Salt Lake City on Friday, March 1, 2024.

“The public should know where its elected officials are doing business,” said Dave Cuillier, director of the Brechner Freedom of Information Project who studies government transparency at the University of Florida.

“They have a right to know if their highly paid government officials are out cavorting in the Bahamas or meeting with special interests,” he said. “That’s why calendars are public throughout the country. To make those secret is just bizarre.”

Heather Sawyer, executive director of the nonpartisan public records watchdog American Oversight, said calendars can provide insight into who officials are meeting with and who is trying to influence their decisions.

“Most states and the federal government recognize calendars as public records that are subject to public release,” she said. “Utah’s contrary decision to exempt calendars from public release is a blow to government transparency and a disservice to the public.”

The secrecy measures passed during the 2024 session, however, go well beyond official calendars, impacting the future of water management in the state, college athletics, information on public officials and lawsuits against the state.

‘Secrecy instead of transparency’

“That [2011] session was bad for GRAMA because of one very bad bill,” said Reymann, who is representing KSL in the lawsuit for Reyes’ calendars. “What has been unusual this session is just the sheer number of bills that are moving in the direction of secrecy instead of transparency. Any bill that touches on government records, they are just trying to add provisions that take the records outside of GRAMA entirely.”

Take, for example, SB211, sponsored by Senate President Stuart Adams and deals with major planning and strategy about how Utah deals with water, one of the state’s most vital and pressing needs.

Adams’ bill creates an appointed board of water district officials to a new water planning board to strategize about big water projects like dams and pipelines — issues critical to the public. Then it exempts that board from Utah’s Open and Public Meetings Act, meaning the public is not informed of when or where they meet, what they discuss, and cannot attend the meetings.

It also gives the board broad exemptions from GRAMA, meaning the public cannot get records to find out what they discussed, what decisions were made, who the board met with or which interests might be trying to influence the board’s decisions.

At the same time, the new law establishes a state water agent tasked with scouting for water outside Utah that the state might be able to acquire and import. Last month, for example, a legislative committee discussed the feasibility of building a pipeline from the ocean to the Great Salt Lake — that would cost an estimated $60 billion to $100 billion to build and $300 million a year to operate.

Under the law, much of the water agent’s work will be exempt from GRAMA.

“Water is probably the No. 1 issue of the West,” said Cuillier, who taught for years in Arizona. “How our water is protected and divvied out is going to be more and more important, and to hide that sort of thing … that’s just going to causes suspicion, it’s going to cause corruption and it’s going to cause water to be wasted.”

(Francisco Kjolseth | The Salt Lake Tribune) Senate President Stuart Adams, R-Layton, answers a question during a news conference on the final night of the Utah Legislature’s 2024 general session on Friday, March 1, 2024, at the Utah State Capitol, in Salt Lake City.

Lawmakers also sought to influence another open records case making its way through the courts.

Last year, the Deseret News requested records related to “name, image and likeness” deals — paid endorsements involving college athletes. The schools refused but the Utah State Records Committee, an the organization who adjudicates GRAMA disputes, ruled NIL contracts should be released. The colleges have sued to overturn the committee’s ruling.

But HB202, sponsored by Rep. Jordan Teuscher, R-South Jordan, and passed on the final day of the session, prevents the release of not only contracts, but any information or communications about these NIL agreements, including compliance information, summary information, the aggregate amounts being paid, breakdowns of men’s versus women’s sports or comparisons of which programs generate the most money.

“It’s extremely troubling that nobody up there seems to make government transparency a priority this year and I don’t know why that is,” Reymann said. “I know there’s been stoked political hostility toward the media that I think is unwarranted.”

During the debate on the calendars bill, for example, Rep. Kera Birkeland, R-Morgan, said restricting the records was necessary to stop “slanderous” attacks from dishonest news media.

“Let’s call a spade a spade,” she said. “The media wants to exploit us. We do not have an honest journalism system, with a few exceptions, in this state. ... The majority of our media wants to criticize and make something out of nothing.”

If constituents want to know what she is doing, she said, they can call or email her and ask.

But Birkeland also sponsored legislation that would enable elected officials like her to ask the state’s Division of Technology Services to hire a third-part contractor to delete the official’s personal information — name, birthdate, address, email address and phone number — from websites.

While HB538 is awaiting Cox’s signature, the bill makes information on who has asked to have their information scrubbed and what information was deleted exempt from the open records law.

Another bill, HB539, sponsored by Brammer, would exempt any documents or correspondence about “anticipated” litigation from public release. GRAMA already had a litigation exception, but those records could still be released if there was a compelling public reason. Now, under the bill that also passed on the last night of the session and is on Cox’s desk, those documents would automatically be withheld and they would stay secret even if a lawsuit is resolved or an anticipated suit is never filed.

“It’s hard to understand how we even have a government that serves the people if the people don’t know how it works, and it just seems to be kind of a bedrock, fundamental truth about open government,” said Eric Peterson, founder and executive director of the Utah Investigative Journalism Project.

‘A secret government’

The move away from that truth also comes when transparency is already in heightened demand and records are harder to get.

In the 10 years from 1994 to 2003, the records committee heard 101 appeals. During the following 10 years, the number rose to 175. And in the last decade, the number of denials being appealed has shot up to 528, triple the number from a decade earlier.

A backlog in appeals now means that any resident who wants a case heard before the committee will have to wait months. The same trend is unfolding nationwide.

Based on his organization’s research, Cuillier said someone who requested a public record 10 years ago had about a 50-50 chance of getting the records. “Still a failing grade,” he adds.

Today, that has fallen to a 30% chance in state government and 10% at the federal level, Cuillier said.

“The trend is a line going down,” he said. “So when are we going to hit zero as a nation? When are we going to have a secret government? That will cause huge problems for our country because if you look around the world at countries that have had secret governments throughout history, really bad things happen.”

– Salt Lake Tribune reporters Emily Anderson Stern and Bryan Schott contributed to this report.

Correction: Wednesday, March 6, 10:12 a.m.• This story has been updated to correct Eric Peterson’s title.