OH NO, NOT MY GRAMA!

“When you don’t live in the White House sunlight is the best disinfectant.  When you live in the White House disinfectant stings!” – Jon Stewart

So GRAMA (Government Records Access and Management Act) 

While there has always been some push for open government at all levels, since our country’s founding; the concept that the people have a “right to know” was not held to the same regard as “freedom of the Press” until Watergate in the mid 1970’s.  We owe that to the courts and their interpretation of a little discussed law passed in 1966 called “The Freedom of Information Act.” (FOIA)  Since that time it has been amended several times and several “sibling” acts/laws have been passed to clarify and expand access to government records by the public.  States have followed the example of the federal government in this, by passing similar acts for the state and all of it’s’ subdivisions.   Utah has been praised for its’ version called GRAMA passed 20 or so years ago.

Earlier this year, a bill to amend this law was presented and passed in the shortest amount of time allowed by law near the end of the legislative session.  HB477made international headlines as Utahans of all persuasions rose up in a somewhat uneducated series of protest fueled by constant media attention.  Was this warranted?  I’m not sure.  It should be noted, it has already been repealed as a result of the public tumult.

Since I decided to post about this topic I have had 3 state Representatives give me some perspective on why they voted for it etc.  All had had very different ideas, but there was one theme from all three “our current open records law has some serious flaws that need fixed.”  This is true.  Since its passage, the legislature has reexamined GRAMA no less than 5 times with 3 of those being full interim studies.  However no bill was presented until this year. 

What challenges are there with our current law?

•  Allowing every jurisdiction to set independent fee schedules
• No ability to collect for extraordinary costs in record searching, such as attorneys etc.
• An overburdening of some jurisdictions based on the allowable vagueness of requests
• Failure, on many accounts, to provide the requests in the 10 day time frame required by the law.  This is treated as more of a guideline by many jurisdictions.  There are very few cases where a jurisdiction was punished for failure to comply
• Ambiguity on what constitutes public and private communication
• Ambiguity on what forms of communications may be used or exempted
• There is no expressed privacy granted to those who submit information to the state that may be later used in a GRAMA request, such as names of individuals as private citizens etc.

These are only a few of the issues.  While HB477 addressed the above issues they also swung the pendulum to far the other direction.  Legislators have indicated that emails, txt’s and IM’s may be coming from constituents who should be allowed to have a conversation with their elected officials without fear their name and the content of that communication being public knowledge.  Simple hellos and goodbyes or happy birthdays or congratulations from other legislators or lobbyists etc, should not be in the public prevue.  Let’s for a moment agree with this premise. Does this mean all email’s, txt’s or IM’s should not be subject to GRAMA, no.  The Supreme Court has held that a phone or computer, owned by company A, and all of its contents, are reviewable by the Company.  There is no inherit right to privacy if we, as an employee, choose to use company property for personal reasons or uses.  The state of Utah is virtually wholly run with tax dollars and is accountable to the people and companies that pay those taxes. The state and its subdivisions have many more employees than elected officials.   Did HB477 make all of these forms of communication unusable in a GRAMA request, no.  However there is a fundamental mistrust when you ask the jurisdiction fulfilling the request to also be the one deciding if something is of a personal nature, arbitrarily.  Our legislators also failed to recognize that these same rules applied to all state agencies and subdivisions…So non elected people are able to use this same shield with their assigned state owned property.

I am aware of a water district, here in the Utah, that has been committing fraud for almost 30 years.  It is a small district that provides water to a subdivision in rural Utah.  The developer created the water district to ensure the members of the subdivision were equally sharing in the cost of providing water to themselves.  He was required to have a turnover in board members every 2 two years.  Since its’ inception the original developer has been changing people names and signing for them and filing these changes with the state, while the entire subdivision was unaware of their responsibilities in this matter.  This came to light only after someone requested information in emails from the state board overseeing the district.  With the exception of this GRAMA request, there has been and no real oversight of this small water district.  Based on the proposed law, it would still be required to turn that information over.  However should an employee fulfilling a request choose to say that the emails contained personal information and would therefore not be turned over, there was no provision, which met public scrutiny,  to protect the public from this potential abuse.

Additionally one could argue that it is possible with current technology for a group of elected officials to conduct a meeting amongst themselves, in plain sight, that would still be a violation on Utah’s open meetings law.  The pendulum of privacy cuts both ways.

It is also noteworthy that Utah has some of the most lax rules with regard to campaign finances and contribution limits.  This is only maintainable as a result of the great open records standards this state is so well praised for.  Any major constriction in actuality or in perception will give rise to a whole host of other public outcries with campaign financing laws, I fear.

Lastly, I would point out that the timing of this entire affair was terrible.  It is a redistricting year….Let’s gives the conspiracy theorists another reason to garner media attention about how one party abuses their power regularly. Republicans take enough flak for having closed caucus meeting at least once a week during the session.   Naturally, passing this in just a few days time close to the end of the session, with no real public discussion prior, was just plain stupid.  Were there public hearings yes….If you can call it that; a 20 minute hearing in a House committee and a vote the next day with a 2 hour Rules committee hearing only  after the Senate Republicans caucused privately earlier that same day all but guaranteed unanimous support.  A matter of this import, with the media able to garner massive support in a short time, should have pushed legislators to have brought this discussion forward in the public eye earlier in the session or even before the session; just as we did with immigration, and budget cuts this year.  This type of issue requires very thoughtful and prolonged public dialog and debate.  Most of our legislature has seen the error of their ways on this issue and we are likely to get that now.  I am very grateful.  The damage to certain reputations however, has already been done.

What to do from here.  Well this group of 25 or so representatives from many of the various stakeholders has a real task before them.  I hope they take into consideration all that is wrong.  I recommend the following solutions be incorporated;

•             Cap what may be charged in per page printing or per hour fees for research
•             Provision that unless specified by the requester that all request be provided electronically, if possible.  This will save a lot of time and money for both the requester and the provider
•             An internal or external, if the state subdivision is too small, review process be implemented in cases where a complaint about what information is provided is brought forward.
•             A clear “intent” section should be included and kept to help the court understand the legislative intent.
•             A clear right of privacy be expressed for personal correspondence.  Do not include personal correspondence from those who wield financial influence over an elected or non elected servant/employee.
•             A requirement that media get permission from people listed in requested documents before publishing the names on a personal email, txt etc unless a clear public interest is provided.

I will leave you all with this quote from the Salt Lake Tribune article on the subject and I pray for those helping to right some of the wrong with Utah’s current GRAMA law.  May they be wise and come to a good compromise that will protect the public right to know and the rights of privacy all of us deserve, no matter the station in life we are at.

"Neither free speech nor open government works unless it is used intelligently, by generators of media and, crucially, by consumers….. But that intelligence can’t be legislated. It has to be assumed."