This is an archived article that was published on sltrib.com in 2011, and information in the article may be outdated.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.
When Shane S. Doyle emailed Utah Gov. Gary Herbert to protest the firing of two workers suspected of leaking names of people alleged to be undocumented immigrants receiving state benefits, he hoped the governor, or at least his staff, would read it.
What Doyle didn't count on: so would many other Utahns.
Doyle said this week he didn't realize his email was a public record — nor that his call for the workers to be awarded medals later ended up in a front-page story in The Salt Lake Tribune.
"I'm OK with it," said Doyle, of Sandy. "What goes on in the Governor's Office affects everybody."
But people should be warned their communications are public information, he said. "That's just decent disclosure," Doyle said.
In fact, the Working Group reviewing Utah's Government Records Access and Management Act is likely to suggest lawmakers adopt a notification system warning people emails are public records.
The state website has a link at the bottom of its home page to a "privacy policy" that notes "certain communications may be subject to public disclosure" under GRAMA. But the notice is easy to miss and not as direct as, for example, this advisory posted by the City of Durango, Colo., on its website: "E-mail messages sent to any City of Durango address will be treated the same as any other written communication, and may be subject to public review."
Doyle's letter was among more than 325 emails The Tribune obtained through a records request for messages sent to Herbert about his decision to fire the two workers. The request has been cited during GRAMA Working Group discussions of how the records law treats email and privacy.
Before releasing the documents, the governor's staff redacted each sender's mailing address, email address and telephone number.
"When the story came out, constituent services [staff] got calls from people upset about their names being released," said John Pearce, the governor's general counsel.
That highlighted some lawmakers' arguments that most constituents aren't aware letters and emails to elected officials are public records subject to disclosure.
"In my discussion with folks, about three-quarters of them think it is confidential and about one-quarter of them think it is public," said Rep. John Dougall, R-American Fork, a working group member. "The big thing for me is making sure the public knows what the rules are."
David Kirkham, founder of the Utah Tea Party, came to a similar conclusion about the need for education after speaking with party members and others.
"I don't think it is ever good policy when the public thinks one thing and the law says something else," he said. "There should be no surprises."
Rep. Chris Herrod, R-Provo, said his constituents share personal information about topics including divorce, services for the mentally ill and handicapped, or act as whistle-blowers.
"I understand that there is a need for balance and would not mind having some sort of committee to [oversee] whether the email was really in the 'public's best interest' but I don't think the press or some individual should automatically get to determine what should be released," Herrod said in an email.
Herrod also is concerned open-records laws will be used to disclose people's political positions, which potentially decreases participation in public debates.
That's what The Tribune did in reviewing Herbert's emails to find the "overwhelming sentiment was one of frustration and outrage." Of those contacted for this story, just one — a person who works for the state — knew emails to officials were public records. All said they would still have communicated their views.
"I will probably choose more carefully in the future what email address I use so if it does become public I won't have to worry about being flooded with spam because of my political views," said Lesley A. Sebastian, whose email called the state workers' actions "truly despicable."
Sebastian and the others said they favor some kind of notice that alerts constituents that their communication may be disclosed publicly.
"I think it would cut down on the inflammatory and aggressive comments people sometimes make," said Sebastian, a former Utahn living in Washington, D.C.
Andrew J. McDonald, of Mapleton, agreed. "It's not that it would have stifled my comments or changed my thinking on it because I wanted to make a public statement, but in certain circumstances I can see where it might give someone pause to rethink or rework some of the comments," he said.
Although Stephanie Lynn Smith wasn't concerned about her email being released, she was bothered that her comments were used in the story without her knowledge.
"I just think it would be polite to call and say, 'Hey, we're going to use this,' whether that's by phone call, email, Facebook, whatever," she said. "I think that would be fair."
Linda Petersen, president of the Utah Foundation for Open Government and a Working Group member agreed, though there is "certainly no legal requirement on the part of the media."
"Hopefully, [the notification] being suggested by the group will be accepted," she said. "That way, over time people can be educated."
Tribune Managing Editor Terry Orme defended the decision to identify those who wrote the governor on the volatile issue, saying their perspectives added to the debate.
"We know that those are public documents and, rightly or wrongly, we assume that the public knows that they are public documents," Orme said. "If members of the public are unaware of that, I would put the onus on making them aware on the government agency with whom they are communicating."
Twitter: @Brooke4Trib
Blog: The GRAMA Debate —
State Records Committee rejects e-mail request
In at least two recent instances, the State Records Committee has ruled emails are not public records.
On May 12, the committee rejected an appeal by The Salt Lake Tribune to get Southern Utah University President Michael T. Benson to release communications that might shed additional light on why he retained men's basketball coach Roger Reid despite four losing seasons.
In its decision, the committee said the university had properly classified the records as protected and cited privacy concerns involving students and third-parties who were likely unaware they had been mentioned in the correspondence.
Earlier this year, Tribune sports reporter Bill Oram filed two GRAMA requests with the university seeking the program's financial reports and "memoranda, letters, emails, voice mails and text messages" received and sent by Benson, Reid and other university officials about the coach's continued employment.
The university provided the financial reports but twice denied the rest of Oram's request, arguing that releasing the correspondence would constitute a "clearly unwarranted invasion of personal privacy." It also asserted that Benson's deliberative process was privileged under a section of GRAMA that addresses retention issues.
"I believe that the information you are requesting would not add in any significant way to future articles and public dialogue that have already ensued," Benson wrote in the second denial.
Oram appealed to the records committee, citing a Utah Supreme Court decision in a case involving the Deseret News and Salt Lake County that found to "qualify for nonpublic classification a record must not only invade personal privacy, it must do so in a 'clearly unwarranted manner.' "
"Public university administrators must be open about what, if any, external pressures influence their decisions," Oram wrote to the committee. "Why and how President Benson came to the conclusion to retain Reid should not be shielded from public view."
At the hearing, Oram said sources had told him Benson might have reached a different conclusion if he had not received "influential correspondence."
D. Michael Carter, an assistant attorney general representing SUU, argued that releasing the emails might chill public interest in "expressing their feelings."
"It may be they would choose not to write if they were disclosed outside the private context," he told the committee.
The committee sided with the university. It took a similar stance in 2009, when The Tribune sought e-mails between an employee of the Utah Department of Transportation and a contractor, stating it was "not persuaded by The Tribune's argument that an employee of a government entity has no expectation of privacy" when using government-funded equipment.
Brooke Adams