This is an archived article that was published on sltrib.com in 2011, and information in the article may be outdated.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.
Editor's note • This is the first in a series of occasional stories that will examine claims and issues raised in the public debate on Utah's open-records law.
In 1992, the first appeal brought before the State Records Committee under Utah's newly adopted open-records law came from The Salt Lake Tribune, which wanted the Department of Transportation to hand over a year's worth of traffic-accident reports stored on nine-track computer tape.
That's right, nine-track tape.
In the two decades since, the committee has settled about 218 records disputes using the state's Government Records Access and Management Act (GRAMA) to sort out competing interests, even as data moved from tapes to floppy disks to instant messages and email.
A Tribune review of appeals decided by the committeefound it has dealt with nearly every issue now up for debate as the Utah Legislature considers updating the state's records law: massive records requests, disputes over fees, concerns about privacy and even appeals that some might characterize as "fishing expeditions."
Inmates, parents, reporters, businesses, nonprofits, branches of government seeking records from one another and even one lawmaker Sen. Margaret Dayton, R-Orem have brought appeals to the committee. Sometimes, government prevailed. Just as often, the public did.
The process • Many government entities, from water districts to counties and redevelopment agencies, have their own GRAMA ordinances that include an initial in-house appeals process. In general, someone seeking a record has three options after being rejected: drop the request, appeal to the State Records Committee, or go to court.
Some entities, such as Duchesne County and Ogden, bypass the State Records Committee and require additional appeals to go to court. Since 2008, the legislative and judicial branches of state government have also relied on their own appeals process, with courts, rather than by the records committee, serving as the final remedy. There have been no appeals, however, within the past 2 ½ years.
But appeals to the State Records Committee still provide a window into how GRAMA has held up since its adoption in 1991. The committee's caseload has grown substantially in recent years, with more than half the appeals it has heard coming in the past five years. In 2010 alone, the committee received 72 appeals it heard 23 of them.
Those appeals represent a sliver of the total records requests made in the state under GRAMA, although the total number of requests is difficult to quantify.
"Many requests don't even rise to having to be a GRAMA request," said Betsy Ross, the State Records Committee chairwoman. "Someone asks for something that is available and gets it."
Other agencies ask those seeking public documents such as a jail booking statement to routinely file a GRAMA request to cover any liability concerns.
Few entities track the number of requests they receive, or the time and costs associated with fulfilling them. The Utah Department of Corrections, for example, says most of its records requests come from inmates, but it doesn't keep a count.
"It's fairly substantial, but there's no easy way of getting this figure," said spokesman Stephen Gehrke.
Who sought records • By far, individuals trying to keep tabs on local governments filed the greatest number of appeals heard by the committee more than 90. True, there are a few some might consider gadflies in the bunch.
The committee heard seven appeals brought by William T. Jacob against American Fork between 1998 and 2000. Jacob, who lost five of those appeals, sought such records as investigative reports and qualifications of job candidates, and he once asserted that an official's "memory" constituted public record.
Many requests for information involve an issue beyond the public spotlight.
Lawrence Jackson, an inmate, used GRAMA to spot-check discrimination in job assignments at the Utah State Prison's furniture and upholstery shop. He asked for a count of black inmates holding skilled jobs, their education levels, highest-paid inmate positions and the number who were black. He also asked for a waiver of the $150 fee that corrections wanted to charge him.
Jackson appealed after the department refused to grant a waiver or provide all the information, saying his request "did not primarily benefit the public, he was not the subject of the records and his legal rights were not directly implicated."
The committee disagreed and told the department to hand over the documents.
In some instances, individuals filed appeals to get documents related to very personal mattersfailing to get tenure, being passed over for a state job, property assessments and being denied information needed for court-ordered visitation with noncustodial children.
Pam and Philip Roundy, of Price, appealed after initially being refused medical records for their son, Spencer, who contracted a rare form of meningitis during treatment for a brain tumor. The drug used to battle the infection caused hearing loss and other problems while delaying Spencer's cancer treatment, Pam Roundy said.
By the time of the hearing, the hospital had agreed to turn over the boy's medical records, but the family also wanted investigation reports on the meningitis outbreak, and the committee ordered that those documents be released. The Roundys learned the infection had been traced to unsterile handling of a tissue implant their son received.
"Without those records, there was no way we would have known where the infection came from," said Pam Roundy. "Once we got the records, then we knew. We would never have been able to prove … that this wasn't just a fluke. Hopefully, it made them fix those problems so it never happened to anyone else."
The panel rules •In numerous instances, the committee has granted "partial" appeals, ordering records released, but with some information redacted to protect privacy. It also has denied appeals for privacy reasons, such as Mr. Pooper Scooper's request for names and addresses of all registered dog owners in the cities of Murray and Sandy. The committee ruled that releasing the information to the business would invade dog owners' privacy.
It came to the same conclusion when The Tribune requested text and emails exchanged between a Utah Department of Transportation employee and a principal in the company that won the Interstate 15 reconstruction bid.
"The committee was not persuaded by The Tribune's argument that an employee of a governmental entity has no expectation of privacy when the messages at issue are sent from a taxpayer-funded phone, through a taxpayer-funded provider or from a taxpayer-funded computer," the committee ruled.
Several of the requests for "massive" amounts of records have come from businesses, such as Equifax Services. In 1993, the company asked for, and conditionally received, the entire licensed-drivers database, with individual names, birth dates and addresses it planned to provide to insurers. The committee also granted Salt Lake City's 1994 appeal for a count of all employees at each business in the city, data maintained by the Utah Department of Employment Security.
The Jordan River Restoration Network's request for records about a proposed regional sports complex also qualifies as massive. The group asked Salt Lake City for every record about the project from 2002 to the present a 3 ½ page, single-spaced request that covered 21 categories of documents. The city's initial refusal to grant a fee waiver was overturned by its own appeals board, but the board then gave departments an extra 45 days to comply with the request.
The committee sided with the activist group, upholding the fee waiver and compressing the deadline for the city to respond, though allowing it more than the 10 days set by statute. Jeff Salt of the Jordan River Restoration Network received 500 pages of documents on the day of the hearing. He's since been given an additional 6,000 pages in the case, which has now moved to court.
"The committee ruled you can still have a voluminous request and get a fee waiver and get documents in a timely manner," Salt said. "If it weren't for an objective third-party panel, we would just be subject to the government entity making its own rules."
Some appeals involved wide-ranging requests for records, such as one that sought "all communications between the Office of Recovery Service and their legal counsel; all records that show ownership of property, business, stocks, bond or title to anything with a monetary value; and all protected and nonprotected government information in a petitioner's file." The committee denied the appeal.
Earlier this year, the committee granted TheTribune's request for "all records" related to a fatal shooting by Salt Lake City police, although the city argued the request was overly broad.
In 2000, inmate Adrian Hickey asked for eight year's worth of decisions and rationale used in Board of Pardons hearings and to waive any fees associated with providing the data. The department refused to waive the fee, and the State Records Committee backed that decision given the "extraordinary amount of records" and the time and expense required to provide them. The board made 11,000 decisions in 1999, the committee noted in its ruling, and making copies of those decisions alone would cost $2,000, not including staff time to research and make the copies.
All about fees • The current GRAMA law allows a governmental entity to assess a fee that includes staff time spent researching and preparing documents. But fee disputes are infrequent and mostly involved relatively small sums.
Among fee waiver appeals: Inmate Thomas Garcia fought the Department of Corrections over the $194.90 bill it wanted to assess for copying his medical records. The state Department of Agriculture asked Colorado Legal Services, which was looking into a migrant farmworker's death, $53.65 for documents. The Deseret News disputed a 50-cents-per-page copying charge, which totaled $61, for five years' worth of records related to highest-paid employees at the Utah Transit Authority.
The State Records Committee denied each of those requests for fee waivers, saying the charges were reasonable.
Lawmakers have held out The Tribune's request for Salt Lake City's parking-ticket database as an example of a "fishing expedition," along with another media organization's purported request for every legislative record mentioning "immigration."
And what about other expansive requests that have made their way to the committee, such as the News' request for any tax liens against political candidates, or KSL-TV's attempt to check on the state's 10-hour workday using six months of building entry data? Both were denied.
Determining what is or isn't a fishing expedition isn't easy.
"Just because someone asks for a lot of records doesn't mean it's a fishing expedition," Ross said. "It could be a legitimate check on government abuse. When you request a record under GRAMA, you do not have to explain why you want it because access is not based upon purpose … [but] whether the public's interest favoring access outweighs the interest favoring restriction of access."
Behindthe big stories
Some of Utah's biggest news stories during the past 21 years triggered disputes over records that were brought before the state Records Committee. Among them were requests for:
Licensing documents for cold-fusion technology issued by the University of Utah in 1993 (denied).
An unbroadcasted segment of videotape of Cody Judy's assault of LDS Church Apostle Howard W. Hunter in 1993 at Brigham Young University's Marriott Center (denied).
Presidential search records at the University of Utah in 1997 (denied).
The Utah Attorney General Office's investigation into the state's bid for the 2002 Winter Olympics (granted).
Hiring of outside counsel to represent Utah in tobacco litigation in 2001 (granted).
Initial police reports in the Lori Hacking murder investigation in 2004 (denied).
A copy of a 1988 letter that convicted bomber Mark Hofmann wrote the state parole board in 2010 (granted).
By the numbers
The Tribune reviewed decisions of the State Records Committeesince 1992 and categorized record seekers based on information available online. The ranking:
Individuals • 92
Media • 40
Inmates • 27
State employees • 22
Organizations • 12
Businesses • 10
Attorneys • 8
Government entities • 5
Legislators • 1