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After being hammered by nearly two weeks of bad press and complaints from angry constituents, Gov. Gary Herbert said he would call a special session for Friday to quickly repeal a controversial change to Utah's open records law.
But Senate President Michael Waddoups said Monday evening that the Senate would not go along, potentially derailing the repeal, which House Republicans had already endorsed earlier in the day.
Waddoups said he hadn't talked to a single Republican senator who supported immediate repeal of HB477, which made a series of changes to Utah's open-records law.
"I'm guessing [the governor will] have to get a Democrat to sponsor the [repeal] bill in the Senate," Waddoups said. Democrats hold only seven of the 29 Senate seats, where 15 votes are required to pass any bill.
Instead of immediate repeal, Waddoups said a 25-member working group appointed Monday should be allowed to meet and discuss the issue, as was originally planned, and the bill could be repealed sometime before it is scheduled to take effect July 1.
"I think [HB477] is going to get repealed, but I don't think it's going to happen Friday. We're not going to repeal it until we have something to replace it with," Waddoups said.
The Senate majority's position was in stark contrast to House Republicans, who agreed to a special session after meeting for more than two hours in a closed-door caucus and within hours of Herbert calling for the repeal of the legislation, saying that both the process and substance of the law "resulted in a loss of public confidence."
Herbert said he would call a special session Friday at noon to enact the repeal but called for all sides the Legislature, news outlets and public to engage in a "good faith" discussion of potential changes to Utah's 20-year-old Government Records Access and Management Act, or GRAMA.
"There was concern expressed that we wanted to give the public an opportunity to be more involved in the process," said House Speaker Becky Lockhart following Monday's caucus.
"We didn't break any of the rules," Lockhart said of the lightning-fast passage of HB477, which was hidden until the end of the legislative session. She said it is "unfortunate" that the public perceives the process was flawed.
Several House Republican members broke publicly with their leaders last week and called for the repeal of HB477, and a majority of Republicans in the House caucus Monday supported repeal. The special session will cost taxpayers about $30,000.
Members of a working group created to discuss the issues related to the records law were appointed Monday. The group, scheduled to hold its first meeting Wednesday, will be chaired by Salt Lake Chamber of Commerce President Lane Beattie, who was Senate majority leader when the original GRAMA law was adopted.
It will consist of representatives of the Legislature, traditional and new media outlets, the Governor's Office, the Attorney General's Office, local governments and the public.
House Majority Leader Brad Dee assured there will be changes to the state's records law.
"We will not accept doing nothing. Period," he said. "There must be something done to GRAMA and we are expecting all the parties involved ... to come to the table and formulate what the policy should be."
Lockhart and Dee said legislators believe GRAMA has not kept pace with new technologies like text messages and has been used for fishing expeditions, trying to make public intimate details of lawmakers' private lives in order to humiliate them.
"I know of requests for other representatives that concern me a great deal," Dee said. Some members in their "other capacities" advise young people who communicate by text messages, he said, and those shouldn't be made public.
As currently written, personal information is exempt from disclosure. Lawmakers said they received 10 requests in the past year that took a total of 400 hours to process, although one request took 280 hours.
The changes in HB477 would exempt text messages, instant messages and video chats from public disclosure. People requesting records would have to pay attorneys to collect and prepare large requests. And the law struck a long-standing presumption that government records should be public unless there was a reason for them to be concealed.
Organizers of a referendum effort to repeal HB477 said they would continue that citizen ballot effort and the American Civil Liberties Union threatened to sue the state over a state law that prohibits the group from gathering electronic signatures for its effort to repeal the records law.
The ACLU believes that the electronic signatures ban in SB165 "violates the state and federal constitutions, as well as the long-standing decisional law of the Utah Supreme Court," wrote Darcy Goddard, legal director for the ACLU of Utah.
Herbert said he considered vetoing HB477 because the bill "did not meet the standard of openness and public dialogue such legislation warranted," but he said the bill passed by veto-proof margins and, if the Legislature had overridden his veto, the law would have taken immediate effect.
It is unclear if the Legislature could have overridden the veto at the time. Seventeen House members changed their votes and opposed the bill when it passed the House the final time with 42 votes. It would take 50 votes to override a veto.
Instead of vetoing the bill, Herbert negotiated a deal with lawmakers, delaying implementation of the bill until July 1, and creating a working group to work out changes to the bill before it took effect.
Waddoups said Senate Republicans had philosophical and logistical problems with repeal in a Friday special session. Several of his members will be out of town Friday, and there is a vacancy in former Sen. Chris Buttars' seat following Buttars' resignation as the legislative session came to a close March 10.
Waddoups said he shared his concerns with the governor Monday afternoon, but the Governor's Office issued a news release an hour later stating that, after consulting with legislative leaders, the governor intends to call the special session for Friday.
Herbert said that any GRAMA modifications must reflect three principles: "First, they must protect the public's right to know. … Second, they must protect every individual's legitimate right to privacy. Third, they must protect taxpayers against the cost of overreaching 'fishing expeditions.' "
Last week, Rep. Carl Wimmer, R-Herriman, called for the repeal of the law. He was later joined by four southern Utah House members: Reps. David Clark, Brad Last, Don Ipson and Evan Vickers.
Another member, Rep. Kraig Powell, R-Heber City, said last week that he voted for the records law because he felt an implicit threat that legislation that was important to him would be killed if he did not support House leaders.
Reworking state records law
The following individuals were appointed Monday to a working group created to discuss possible revisions to the state's open-records law, which would take the place of HB477. The governor and House Republicans have agreed to repeal HB477 during a special session Friday and adopt recommendations from the group. Senate Republicans are resisting the move. The group's chairman will be Lane Beattie, president of the Salt Lake Chamber of Commerce. The first meeting is slated for Wednesday.
Governor's Office • John Pearce, general counsel
Legislature • Reps. John Dougall, R-Highland; Holly Richardson, R-Pleasant Grove; Brian King, D-Salt Lake City; Steve Handy, R-Layton; Sens. Steve Urquhart, R-St. George; Curt Bramble, R-Provo; Stuart Adams, R-Layton; Patricia Jones, D-Holladay.
Attorney General's Office • Assistant Attorney General Laura Lockhart
Public members • Former Supreme Court Justice Michael Wilkins; Utah Valley Regional Medical Center spokeswoman Janet Frank; Salt Lake Community College student body president Liu Vakapuna; tea party leader David Kirkham; Phil Windley, web and technology consultant.
Utah League of Cities and Towns • Mark Johnson, Ogden City
Traditional media • Randy Wright, Provo Daily Herald; Linda Peterson, Valley Journals and Utah Foundation for Open Government; Geoff Liesik, Uintah Basin Standard; Paul Edwards, Deseret Media Group; Jeff Hunt, Utah Media Coalition
New Media • Jason Williams, KVNU talk show host and blogger; Jesse Stay, social media technologies consultant; LaVarr Webb, Utah Policy Daily