The Salt Lake Tribune
Wednesday, February 25, 2009
H.B. 122 takes a turn...
From our woman on The Hill, Cathy McKitrick:

A bill that would restrict public access to some government records, cleared the Senate Government Operations Committee on Tuesday after significant changes were made.
"The measure originally sought to prevent the balancing test" weighing public access vs. privacy interests, said Jeff Hunt, an attorney representing the Utah Media Coalition. The coalition initially opposed HB122, which is sponsored by Rep. Douglas Aagard, R-Kaysville, and backed by state Attorney General Mark Shurtleff.
When a government record is classified as protected or private, someone can argue that the public benefit of disclosing the information outweighs the need for privacy.
After reaching consensus on new language for the bill Monday, Hunt said he is on board with what he views as a fair compromise.
"We had frank discussions that went clear into the night," Hunt said, crediting Shurtleff for hearing the concerns of media and other public interest groups.
The new version of the bill requires that only one category require clear and convincing evidence for disclosure -- namely, records that would jeopardize the life and safety of an individual.
"We feel this compromise gives protection in investigations where a life could be at stake," Shurtleff told committee members Tuesday.
For seven other categories, the requestor would have to prove by a preponderance of the evidence -- or slightly more than 50 percent -- that the records should be made public, Shurtleff said.
The measure moves to the full Senate for further consideration.

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Monday, February 23, 2009
The bad week that was


Thank God it's Monday. You don't hear that often, but after everything that happened to me last week on the records front, I want a fresh start.

I confess I don't like House Bill 122, though I'm trying to remember the arguments in favor of it. The bill passed the House last week, but it's still just a problem for another day.

Last week, I received word from the Ogden Records Board that it denied my appeal for certain employment records related to former police officer Ken Hammond. Ogden does not subscribe to the State Records Committee appeal system, so The Tribune has to file suit against the city if it wants to pursue this further. My bosses have not given me an indication the newspaper will do that.

The board's denial, a copy of which is attached below, probably ensures the pending criminal and civil court cases against Hammond will be the only vehicles for learning details of his time on the police force.

To ensure I would be beaten down by three levels of government, the feds sought to crush my spirits, too. The Mine Safety and Health Administration sent me a copy of a 2001 report about the Martin County Coal impoundment failure, which was one of my first FOIA requests to Obama Administration. The problem is: I asked for the 2003 report — which the government (now under two presidents) has been withholding from release.

And I'm not the only who had problems last week. Check out this article about meetings in Highland. In my experience, when one member of a governing body complains about transparency issues with the rest of the board, there's some kind of problem.

— NC

OgdenRecordsReviewBoardDecision.pdf

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Friday, February 20, 2009
H.B. 122 heating up

The legislation which would limit access to some public records has passed the Utah House and that's intensifying opponents.

Joel Campbell, an assistant professor of communications at BYU, sent an e-mail to journalists on Thursday asking for them to get loud and organized. Maybe Campbell was inspired by some fishermen.

The Spectrum in St. George published an editorial Thursday opposing the bill. Other Utah newspapers have published similar editorials.

The attorney general's office, which is backing the bill, says House Bill 122 will preserve attorney work product and protect criminal investigations.

An excerpt of Campbell's e-mail and his talking points are below.

— NC


Dear Friends of Open Government

You can make a difference by making a call or writing something today. Its (sic) time to alert everyone we know, citizens, journalists and officials about HB122, sponsored by Rep. Doug Aagard, R-Kaysville.

HB122 passed the House yesterday. We need to contact Senators. I have attached new talking points that address the bill as amended in the House. Please editorialize on it, blog about it, facebook it, twitter it and distribute widely and, most importantly, call, fax or write your senator! We should also call and write Mark Shurtleff, whose office is pushing this bill and ask the Governor to veto this bill if it comes to his desk. We are going to lose this one if we don't start communicating our concerns to senators.


H.B.122.Talking.Points.02.18.09.pdf

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Friday, February 13, 2009
Hiding all over

The state's two big newspapers published editorials today opposing HB122.

Click here to read the Salt Lake Tribune editorial.

The Deseret News editorial is here.

While HB122 might discuss hiding documents, Cache County opted to hide its discussions over a new county attorney. News organizations asked the county council to hold the discussions in public.

— NC

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Tuesday, February 10, 2009
The arguing will be over
UPDATE: A Standard-Examiner editorial on Wednesday voiced strong opposition to HB122. The newspaper also published this editorial cartoon.


The debate over public records legislation sounds a lot like an argument about whether government is always right.

HB122 — filed at the request of the Attorney General's Office — would remove avenues of appeal for records associated with law-enforcement proceedings, government audits and personnel matters.

In other words, if the bill passes, and you want a police report or a copy of a government audit, and the government denies your request, you may be out of luck.

There's no more administrative appeals — which is currently a cornerstone of Utah's records laws, called GRAMA. Or, from another perspective, there's no more "second guessing."

From the Standard-Examiner:

Patrick Nolan, of the state Attorney General's Office, said during a legislative committee meeting Monday morning that the court system and state boards are "second-guessing" law enforcement's classification of restricted documents.


Nolan may have been talking about the Utah Supreme Court. In a 2008 ruling on a GRAMA lawsuit, the supremes effectively said just because a government agency classifies a record as exempt from disclosure, doesn't mean the government is correct.

I cited this ruling today when I appeared before Ogden's records board. Ogden has classified some personnel records as exempt from disclosure. I argued the city is wrong and the documents should be disclosed.

If HB122 passes, I may not get to make this argument again. The government will be right — whether it is or not.

— NC

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Sunday, July 27, 2008
Hazardous material
Rep. Steve Urquhart has a noteworthy posting on his blog about transparency in the Legislature.

He points to the institution's wonderful website -- and it really is terrific -- with a wealth of information. It contains everything from the full text of bills to audio of floor and committee speeches to voting records. All easily searchable.

Urquhart's point is that transparency makes for better government because it opens up the process to the governed. He leaves out any mention of the deliberation and decision-making that takes place out of public earshot or cyber-viewing. But still he raises a very legitimate link between transparency and good government.

I also give Urquhart credit for honesty. He quickly admits a large hole in the website that existed until relatively recently.

"When I entered the Legislature 8 years ago, information was hidden from voters," Urquhart said. "Though the Legislature had an advanced website, the decision was purposely made to not make legislators' votes readily accessible on the site. Why not? With straight faces, legislative leaders would say, because such information, taken out of context, could confuse voters."

I remember it well. And the arguments were even more ludicrous than he suggests. Some members claimed the release of such information on the Internet could be downright dangerous.

"Sometimes too much information can be as damaging as not enough information," then-House Majority Whip David Ure said in 2001.

The Legislature's top senator was right there with him.

"I can see all kinds of problems coming out of that," then-Senate President Al Mansell said.

Democrats pushed hard for the initiative though. And when Republicans saw that it was inevitable, they took it over as their own and made it happen.

Now it's hard to imagine that tracking a lawmaker's voting record would be any more difficult than a click of the mouse. And the good thing about technology -- it will never revert to the old way.

-dh

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