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Ignorance of open-records law

By Betsy Ross

Published March 10, 2011 12:15 am
This is an archived article that was published on sltrib.com in 2011, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
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House Bill 477, the bill that made sundry changes to the Government Records Access and Management Act, was initially passed within three days of its unveiling to the public. Gratefully, its recall and repackaging with a somewhat delayed effective date (July 1) will allow much-needed time for education.

Because the fact is, legislator rhetoric in passing HB 477 reflected a gross lack of familiarity with the statute that has worked for the past 20 years to balance the interests of the government and its citizens in providing access to records.

The two most-related and most-mislaid arguments have been the need to modernize GRAMA to reflect emerging forms of electronic communication, and the assertion that GRAMA does not adequately address government's ability to assess fees.

Taking first the statement by several legislators that an update of GRAMA is necessary to reflect advances in technology, including text messages, instant messaging and other new forms of electronic communication: The contention is simply incorrect. GRAMA was drafted to be blind to the form of the record. The current statute defines a record to mean: "a book, letter, document, paper, map, plan, photograph, film, card, tape, recording, electronic data, or other documentary material regardless of the physical form or characteristics."

The drafters of GRAMA understood that the pace of technology would quickly outstrip current forms of communication and so opted in favor of listing examples, but making clear that the form was not a factor in deciding if a communication was a record that could be requested under GRAMA.

This simply means that, for instance, if a communication contains personal information about a constituent's sick child, as the example was given by a legislator, it is not public currently under GRAMA irrespective of whether it was communicated by email, text message or instant messaging. Focusing on the form rather than content, as this bill does, would deny the public access to any policy communications made within a text message — a result unacceptable, I am sure, to all.

Second, addressing the need for government to shift the burden of cost to the requester so that government is not "shut down" by a request for voluminous amounts of records, legislators have referred several times to a records request received by the town of Alta.

In fact, however, in the 2003 appeal to the State Records Committee that addressed Alta's ability to assess fees in that case, the committee held that "the nature, scope and complexity of petitioner's requests justifies the assessment of a reasonable search, retrieval and compilation fee when the request requires that such records be extracted from a larger document or source … ."

And in a 2004 case before the State Records Committee involving the University of Utah research labs in which the request was for "all approved protocols for all research currently utilizing baboons and/or macaques," the committee held that the university had the right to charge a fee for segregating protected information (pertaining to a researcher's proprietary data) from public information, and that the fee could include a charge for review by scientists and lawyers as necessary.

Given these examples, one has to ask whether the escalation in fees that could result from this bill is really supported by the experiences of government entities.

The bottom line is that legislators' arguments for the need to amend GRAMA are likely as much hyperbole as legislators have argued that the media's statements in opposition to the bill are.

It's time to ratchet down the hyperbole, get educated, and work together to ensure that we get right the difficult and delicate balance between the public's right to information and an individual's privacy concerns. July 1 will be upon us all too quickly.

Betsy Ross chairs the State Records Committee. She has been a committee member since 1994.



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