Utah Repeals Electronic Communications Transparency Exemption Law

Published April 4, 2011

Utah legislators prompted a statewide public outcry by passing amendments to the state’s Government Records Access Management Act (GRAMA), which would exempt officeholders and their staffs from releasing emails, voicemails, and other electronic communications to the press and would increase fees for copying and releasing eligible documents. Public disapproval lead to the bill’s repeal three weeks later.

House Bill 477 was passed in the waning hours of the Utah Legislature’s 2011 General Session on March 7 and signed into law by Gov. Gary Herbert (R) the next day. It was scheduled to become law on July 1, but a special legislative session called by Herbert repealed the law on March 28.

Public disapproval for the law as passed registered immediately, prompting Herbert to declare he had signed the bill only to prevent a “symbolic” veto from being subsequently overruled by the legislature.

“It is now clear to me that HB477, both in process and substance, has resulted in a loss of public confidence,” Herbert wrote in a March 21 letter to Utah newspaper Deseret News. “The Utah State Legislature now has the opportunity to work with the media and the public to restore that confidence by forming a working group to create a replacement for HB477. This group should consist of legislators, new and traditional media representatives, and members of the general public.”

‘Signed on Stone Tablets’
Because the Utah legislature is part-time, many state politicians concurrently hold positions in private businesses and the Church of Jesus Christ of Latter-Day Saints. Those who voted for HB 477 state they oppose the public release of their personal communications with spouses, business partners, friends, and youths they may counsel as part of their church responsibilities.

Linda Peterson, spokesperson for Save GRAMA, an activist group established in opposition to HB 477, and president of Utah Open Government, disagrees. “HB 477 is nothing more than politicians granting favors to each other in order to keep the public in the dark,” she said.

Save GRAMA attempted to gather 96,000 signatures to overturn the legislation, but the organization was given only 40 days to complete the task by Utah Lieutenant Governor Greg Bell’s (R-Davis County). Peterson says the undertaking has been made even more difficult by Bell’s refusal to allow electronic signatures.

“We were given 40 days to gather 96,000 signatures in 16 counties,” Peterson said. “I’m surprised they don’t require us to bring in all of our signatures signed on stone tablets.”

‘Stampede of Backpedaling’
 “Anyone daring to venture to the Utah state capitol in Salt Lake City should beware of being run down by a stampede of backpedaling legislators who pushed through HB 477, slapping a ‘secret’ label on lawmakers’ emails, tweets, text messages, and on-line chats,” said Maureen Martin, senior fellow for Legal Affairs at The Heartland Institute, which also publishes Infotech & Telecom News.

“One justification being floated by the back-pedalers is that their intent was to ‘modernize’ the Government Records Access Management Act in accordance with its original ‘intent,'” Martin continued. “Its disclosure requirements were never supposed to apply to conversations, just government records.”

Martin explained the legislators’ reasoning behind HB 477 is the perception modern social network communications and emails are more akin to conversations than to written communications, so they shouldn’t be disclosed.

‘Sunlight Best Disinfectant’

“Legislators are vowing this time there will be public input and the bill will be revised to fulfill its purposes of ‘transparency’ while still modernizing it,” Martin said, referring to the governor-appointed workgroup and special legislative session.

The first workgroup met on Wednesday, March 23. The 25-member panel is required to conduct meetings each Wednesday for the following three weeks.

“Government is either transparent or it is secretive, and Utah government took a major step in favor of secretive government, which it seems unlikely to revoke. It’s often said sunlight is the best disinfectant, but not in Utah,” said Martin.

“Hopefully, reporters and government watchdogs filed their GRAMA requests before the bill was scheduled to go into effect on July 1,” Martin said. “Legislators must be hiding something important, which the public deserves to know.”

Patrick Wright, senior legal analyst for the Mackinac Center for Public Policy, a Midland, Michigan-based educational and research institution, agrees with Martin. “President Nixon went all the way to the Supreme Court in a failed attempt to hide his tapes,” Wright said. “Why should Utah’s politicians be able to hide more than he did?” he asked.

“After Watergate, the public decided it must monitor what its government was doing,” Wright said. “Allowing the public to access a primary means of communication allows it to make sure politicians are behaving legally and acting in the public interest.”

Bruce Edward Walker ([email protected]) is managing editor of Infotech & Telecom News.

Internet Info

“House Bill 477,” Utah State Legislature, March 7, 2011: http://www.heartland.org/infotech-news.org/article/29666/Utah_House_Bill_477.html