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As the work of a group charged with recommending changes to Utah's open-records law draws to a close, it's clear there's a major sticking point among its members: whether written correspondence from constituents to lawmakers should be public at all.
Most people don't realize the letters and emails they send to legislators are public records under the state's Government Records Access and Management Act, said GRAMA Working Group member Sen. Stuart Adams, R-Layton. He argues an attempt to alert them to that fact may only serve to chill communication from some.
"Is that constitutional?" he asked at a recent group subcommittee meeting. "You cannot talk to your legislator in an email without it being a public document?"
After nearly three months of discussion, Adams and numerous other lawmakers are not convinced the law does enough to protect personal information disclosed to them on a daily basis by constituents or to avoid subjecting people to what Sen. Curt Bramble, R-Provo, calls "pre-emptive intimidation" of those who don't like their views on hot-button issues.
Efforts to shield such communication have been successful elsewhere. Across the country, nearly a dozen states, including Kentucky, New Jersey and Pennsylvania, have walled off constituent communication. Those states specifically say such correspondence is not public record, or they provide broad protections for personal, private disclosures.
New Jersey law, for example, states that "a government record shall not include information received by a member of the Legislature from a constituent." Rhode Island exempts "correspondence of or to elected officials with or relating to those they represent, and correspondence of or to elected officials in their official capacities." Pennsylvania's law directly states its correspondence protection does not include those from "a principal or lobbyist."
Utah's statute allows public entities to redact information or withhold records when releasing them would constitute a "clearly, unwarranted invasion of personal privacy" and protects "personal files of a state legislator, including personal correspondence to or from a member of the Legislature."
What is bothersome to some lawmakers is that definition of "personal" is not spelled out, and while it has not been read to include constituent communication, the issue hasn't been tested in court.
The act also doesn't provide a distinction between regular citizens and lobbyists, but Working Group member and media attorney Jeff Hunt said "private communications are going to get caught in the catch-all protections."
"People will draw the line differently on how wide the deliberative process should be," Hunt said at a May 31 subcommittee meeting. Making constituent communications private would be a major shift in Utah's law and would be "bad public policy," he said.
The law already covers "extreme cases" when people share deeply personal information. The question is whether the state wants a "blanket policy making it all secret to cover the exceptions" or continue to address it on a case-by-case basis that protects personal, private communications, Hunt said.
"There is some confidence to the public process by just the fact that those are open," Hunt said. "People may not ask for them, but they can."
And that, some lawmakers say, is what potentially shuts down public discourse.
Gayle Ruzicka, president of the Utah Eagle Forum, said the issue was a topic of discussion at the group's board meeting last week, and she has shared her concerns with one lawmaker and plans to speak to many more. People need to be able to "go to their elected officials for help," she said, and not worry it will be "tomorrow's headline."
Adams said most of the sensitive emails he receives concern health, mental health and family services issues all problems few would want to risk having made public. "Put yourself in the position of a person who has visited a mental health facility and needs help," he said.
Constituents need to be able to speak freely and privately with lawmakers by whatever means they choose, said Sen. Stuart Reid, whether that's by telephone, text or email.
"Those should be private if that is what the constituent wants, and the form of communication should not matter," he said.
But under the current law, the form does matter. Call a lawmaker, and the conversation isn't subject to GRAMA; write to a lawmaker and, depending on the substance of the correspondence, it may be.
"I think it is a valid concern to wonder if a constituent who contacts you knows that when they contact you in writing it is subject to GRAMA," said Rep. Brian King, D-Salt Lake City and a member of the working group.
An increasing amount of correspondence is by email, and some members of the GRAMA Working Group have suggested the Legislature adopt an alert system that first provides notice that correspondence may be disclosed publicly and then gives people an opportunity to decide whether to proceed.
"I like that better than saying no communications from constituents are subject to GRAMA," King said, which potentially limits "communications with legislators that people want to know about and should know about because they deal with inducements and deal-making."
Lane Beattie, a former legislator and chairman of the GRAMA Working Group, says all that is likely to do is reduce email correspondence and increase the public's interest in speaking directly with lawmakers something Reid and others say lobbyists already do to avoid having their conversations exposed in records requests.
"They are fully aware of that, whereas constituents aren't," said Reid. "Subjugating our constituents to exposure, I think, is unfair and, for me, that is a missed priority."
Rep. John Dougall, R-Highland, calls the ability to speak freely and without concern of being identified publicly "an American tradition" that could be dampened as people understand written communication is subject to disclosure.
"There are constituents who, if they knew when they sent an email it might be disclosed, would not send it," Dougall said.
But, he added, "Whatever we end up choosing at the end of the day, I can live with as long as the public knows what the status is. If they think it's confidential and it's really not, that is dishonest to them."
For Charles Davis, an associate professor at the University of Missouri and records-access expert, distinguishing constituents with personal problems from people trying to influence state policies is problematic.
"I'm not sure how you peel that back to protect the privacy rights while also protecting access and accountability," he said. "If you say constituent email is protected in GRAMA, you've created a beautiful, secret communication channel."
P The statutory definitions subcommittee of the GRAMA Working Group will meet 9 a.m. Thursday in the Senate Rules Room at the Capitol. The working group will next meet 9 a.m. June 22 in Senate Building Room 210 at the Capitol. It could be the group's final meeting. –
What happened with emails constituents sent Sarah Palin?
Only a fraction of former Alaska Gov. Sarah Palin's emails released to media last week were from constituents.
The reason for that? Most emails sent to the governor's public account were handled by staff which is how the system works in Utah, too and were not forwarded to Palin; the records request sought only emails received or sent by Palin.
A few examples of those made public: a courtesy notice letting Palin know a home near the governor's mansion was up for sale; an email from a child who wanted to know what Palin's middle name is; an invitation for Todd Palin, the governor's husband, to speak at a school health fair; and one from a constituent concerned about the lack of African-Americans in her administration.
Some constituent emails included in the released documents were redacted because they raised issues that are confidential by law or fall under the privacy provisions of the state's constitution, according to Linda Perez, director of administrative services.
Also of note: The Alaska Legislature is not subject to the state's open records act.