There's disheartening news for advocates of transparent government this morning from this morning's Salt lake Tribune, wherein Cathy McKitrick reports that Governor Huntman's office has intruded itself at the eleventh hour into legislative negotiations regarding Rep. Doug Aaagard's HB 122. Aagard's bill is of course only the latest effort of secrecy-loving Big Government Republicans on the Hill to diminish the rights of members of the Utah lumpencitizenry to obtain important government documents -- documents that we pay for with our own hard-earned tax dollars, of course -- documents which we rely upon to find out what our equally secretive local elected officials are really up to. Huntsman has evidently decided to "pile on" and "up the ante" by suggesting the removal of this language from the current GRAMA Act: "63G-2-102. Legislative intent... (3) It is the intent of the Legislature to: ...(e) favor public access when, in the application of this act, countervailing interests are of equal weight..."
We've ranted in our opposition to this citizen-unfriendly legislation during the past month or so, and so have the Standard-Examiner, the Salt Lake Tribune and the Deseret News, among other news media stakeholders.
Nevertheless, this bone-headed legislation seems to be rolling on full steam ahead. Only governor Huntsman's proposal (which would actually further weaken GRAMA protections,) seems to exist as any obstacle to rendering this bill a legislative slam-dunk.
In this connection, we'll incorporate some text from Utah GOP Vice Chair Todd Weiler's excellent February 24, 2009 Davis County Clipper guest commentary, which squarely addresses the real problem with Rep. Aagard's ill-conceived bill:
... Rep. Doug Aagard’s bill will broaden the definition of records that are protected from disclosure to the public. In the current version of the law, only records prepared “solely” in anticipation of litigation are classified as protected. But by striking the word solely from the equation, government officials may be entitled to retroactively place government records out of the public’s reach by claiming that the preparation of the documents was at least partially motivated by a fear of potential litigation. Remember that these are records prepared at taxpayer expense.(In addition to being at least one of a seemingly vanishing breed of old fashioned Republicans in GOP leadership who still believe that "sunshine" is the best disinfectant for the infection of secretive Big Government, by the way, Todd is also one danged fine Utah lawyer too; so we listen very attentively when he offers free legal advice such as that offered above.)
I was immediately suspicious of the GRAMA legislation because the Legislature just underwent a substantive rewrite of the law in 2005. And all of the changes weigh against public access. The motivation for the latest changes appears to stem from three events: the police standoff in Farmington that resulted in the death of Brian Wood, the Utah Supreme Court’s December 2008 decision in favor of the Southern Utah Wilderness Alliance (SUWA), and the media’s request for the personnel files of Officer Hammond in Ogden.
While the bill’s proponents tout the fact that there were 12 requests for records the day after Mr. Wood’s death, they typically fail to mention that all of those requests were promptly denied under the existing law. And even if there are problems that exist under the existing law as it relates to police personnel records, then the fix ought to be specifically tailored to that narrow exception. Instead, the bill proposes sweeping changes that creates the potential for abuse.
The SUWA case shows that the existing law is working. The records request was denied, and was considered by the state records committee. The committee upheld the denial and the dispute went to the state court. The district court also upheld the denial but that decision was overturned in a very detailed ruling by the state supreme court. The top court concluded that requested records were created by a Legislative mandate that did not restrict access to them or otherwise designate them as non-public.
Having been involved in both sides of many GRAMA issues over the years, I tend to lean toward public access and disclosure. I fear that many lawmakers are supporting HB 122 this year merely because they don’t support SUWA. Unfortunately, the impact of this bill does nothing to overturn the SUWA decision, but will create new opportunities for the government to shield documents from its taxpayers. [Emphasis added.]
During the course of the past few weeks Big Government GOP legislators have been working hard to curb the public's right to public information access. Last week, some of them indulged in diversionary tactics to distract the public's attention from the real issue here. In short, they reached a small compromise, throwing opponents of the bill a bone or two. We believe Governor Huntsman's proposed "amendment" is only the most recent of these diversionary sideshows. Keep your eyes on the ball gentle readers, and heed the words of Mr. Weiler: "...the impact of this bill... will create new opportunities for the government to shield documents from its taxpayers."
We've put off the posting of this latest WCF article until this evening, so it will appear somewhere near the top of the page when the Monday morning news rolls in. If you're a lumpencitizen who cares about transparency in government, now's the time to take action. Once again we provide appropriate legislative contact links:
• House contact informationThankfully, the passage of HB 122 isn't quite a done deal yet. There's still time to drive a stake through its heart.
• Senate contact information
