October 1, 2012

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How Open Should Government Be?

A Look at GRAMA Amendments

Gretta Spendlove, Gary Thorup

October 1, 2012

Are there any reasonable expectations of privacy for an elected official? Who should pay the increasing legal costs as government entities respond to records requests? How should modern-day channels of communication like text messages, IMs, email, video chat, Twitter DMs, Facebook messages and voicemail be classified under the GRAMA statute?

These are merely three of the 36 questions posed by Utah legislative staff in March 2011 to the GRAMA working group, appointed by the Legislature to consider changes to the Government Records Access and Management Act (GRAMA).

Finding Balance
Open government was a hot topic in the 2011 General Session, as the Utah Legislature first enacted and then repealed HB 477. Many considered HB 477 a draconian attempt to limit public access to government records, particularly legislative records. It prohibited the disclosure of text messages and instant messages, allowed government agencies to charge fees for information that could include the agency’s administrative and overhead costs, and required those requesting records maintained by the government to show—by a preponderance of evidence—that the information should be released.

Enactment of HB 477 was greeted by 200 protesters marching on the Capitol and by an outcry from journalists.

The GRAMA working group met throughout the spring and summer of 2011, delivering its report in August 2011. Some of the working group’s recommendations were included in legislation introduced in the 2012 General Session as S.B. 177 by Sen. Curtis Bramble and Rep. John Dougall. S.B. 177 was enacted unanimously.

“GRAMA balances rights of privacy and confidentiality with the public’s right to transparency,” says Bramble. “After enactment of S.B. 177, I think the balance is about right.”

Since Utah legislators and many local officials govern part time, with private professions on the side, one of the difficult GRAMA issues is whether and how to require disclosure of an official’s communications when dealing on governmental business, but maintain privacy for the official’s personal and business dealings.

Under S.B. 177, a “record” subject to GRAMA does not include the personal communications of government officers and employees prepared or received “in a capacity other than the employee’s or officer’s governmental capacity, or that is unrelated to the conduct of the public’s business.”  That language will keep letters and emails from clients of legislators who are CPAs, lawyers or realtors private, unless those communications deal with legislation.

“As a CPA, I do tax work,” says Bramble. “I’m not at liberty, under the professional rules governing CPAs, to disclose my clients’ names or their tax issues, although the public might want to know. S.B. 177 keeps that tax information private.”

S.B. 177 also shifts the test for governmental entities in determining whether they can/must provide documents. Previously, governmental entities had to determine that use of the record produces a public benefit that “outweighs” the individual privacy right that protects the record. Under S.B. 177, the test is whether the public benefit “is greater than or equal to” the individual privacy right. The S.B. 177 test should result in more governmental records being released.

In addition, S.B. 177 provides for appointment of a records ombudsman to help people making or responding to government records requests, and for annual training of governmental records officers.

Continuing the Process
Open government requires more than merely defining the types of information that must be disclosed. It also requires the availability of technology for making governmental information more accessible to the public. H.B. 337, which was introduced in the 2012 General Session, would have created a Utah Public Records website as a central location for the public to access public records. This legislation would have required publication on the website of various categories of records, such as municipal ordinances, minutes and agendas of public meetings, records circulated at the public portions of meetings, and governmental manuals and feasibility studies.

H.B. 337 was not enacted, according to Bramble, because of “financial concerns.” The cost of governmental entities posting public information has to be weighed against the value of that information to the public.

What does the future hold for GRAMA and other open government laws? “Legislation is a process, not a destination,” says Bramble. “We regularly fine tune our state laws. GRAMA is no different.”

As technology changes, GRAMA may need to be amended to deal with those new technologies. A trend towards more governmental information becoming available online will most likely also continue, so long as state and local government budget constraints can be overcome. The scope of document review for different types of governmental entities, such as universities, may also be addressed. The balancing process will continue. 

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