State Legislatures Shutting Down Transparency

Crossposting my guest blog for the Sunlight Foundation on anti-transparency legislation passed in Utah.  Read more about similar secrecy grabs taking place in Maine and Tennessee at the Sunlight Blog.

Utah Legislators' Secrecy Grab: Transparency Under Attack

With a 21-7 vote, the Utah State Senate last week approved an overhaul of the state's Government Records and Access Management Act (GRAMA). HB477 would shield lawmakers' voicemail, text messages, instant messages possibly even email from public record. Only one Republican voted against the bill. Senate sponsor Sen. Lyle Hillyard explained in an email exchange with a constituent his reason for co-sponsoring the bill:

Some people who know me don't know there is a difference and some think that when I am out of the office that my senate e-mail is the only way to contact me. Our staff is tired of the threats from the media and we plan on working with them if they want after the bill is passed if there are changes to be made but let's do it without threats of going to court.

First introduced in a surprise hearing by House sponsor Rep. John Dougall, the bill would also allow agencies to charge "professional rate" fees for requests, and guide courts to seek a "preponderance of evidence" justifying a releasing documents. The current GRAMA law instructs courts to focus on the public benefit of release. The bill passed the house 61-12 on Thursday, and the Senate less than 24 hours later so as to avoid, in the words of Senate President Michael Waddoups, letting it "fester" over the weekend. Sen. Hillyard declared proudly, "I'm doing this for future legislatures!". The House released this statement after final passage:

A core concern with GRAMA is the distinction between a conversation and a record. When GRAMA was created it wasn’t fathomed that day-to-day conversations would be considered as records. But what you and we now consider a digital conversation is now considered public record: text messages, voice mails, instant message logs. If that’s the case, why not just mic up every elected official and the tens of thousands of public employees across the state? Not only is it an impossible task, it’s also a gross invasion of privacy. And so we come to Rep. John Dougall and House Bill 477. The bill resets GRAMA with today’s technology in mind and clarifies legislative intent where court decisions have swung the pendulum dangerously far in one direction.

The Senate majority issued a statement, as well as the audio of Rep. Dougall's bill introduction. Lawmakers quickly moved on to controversial immigration reform bills, hoping to regain control of the narrative. What they didn't count on was an enraged public.  This bill has drawn criticism from both progressive and conservative state organizations. Even Eagle Forum president Gayle Ruzicka, normally kind to the legislature, said "I hated the process," and called parts of the bill "outrageous." Reaction was broad, bipartisan and decidedly against the changes proposed. By Monday morning, the Governor's office had been flooded with calls and emails demanding a veto of the bill, an online petition had garnered nearly 1,000 signatures in a matter of hours, and two separate rallies had been planned for the final few days of the legislative session. Even after a veto threat from Governor Herbert resulted in a rare recall of HB477 to change the implementation date a rally organized on Facebook by local blogger Bob Aagard drew more than 150 protesters to the Capital Rotunda. But that night, the Governor signed the bill into law, promising a non-binding "work group" will be formed to consider amendments before implementation. The Utah Chapter of the Society of Professional Journalists responded:

Perhaps worst of all, HB477 strips from Utah’s public records law language stating clearly that government records are presumed to be public and that the burden is on government to show why records should not be disclosed. This is critical language, language recognized by the statutes or common law of every state in the country. “With one scribble of a pen, the governor made his state the most secretive in the nation, as well as more backward than most countries, including Mexico and Albania,” said SPJ FOI Committee chairman David Cuillier. “This will price citizens out of their government, encourage corruption and online sweetheart deals, and embolden those who would undermine democratic principles.

Legislators have responded to the backlash from transparency advocates, angry voters and journalists by scapegoating local media as unable to report objectively on the issue, accusing the public of not understanding the bill, and anecdotal misleading justification for the changes. Bill sponsors Dougall and Hillyard have said they only seek to protect legislators' private communications. What they don't explain is that the current law already does.

HB477 represents an arrogant legislative body placing their own position and power above the right of citizens to know what business is done in their name. In a state already challenged by one of the lowest voter turnouts in the country, legislators have acted selfishly and in bad faith, placing themselves above increasing the confidence of voters in the integrity of their public institutions.

With the Governor's signature, the law is set to take effect July 1st.  A citizen group has filed a referendum petition to repeal the law entirely, and has 40 days to collect enough signatures to get it on the ballot this fall.

Tags: FOI, Utah, Sunlight Foundation, Secrecy, transparency (all tags)

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