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KEEPING HOUSE 3/7/2011

The annual session of the Utah legislature ends this Thursday night at midnight.  Two major immigration bills were passed by both the House and Senate last Friday in a marathon late-night session.

Final adjustments to the state budget will be enacted this week. One of the main issues that is still pending is a new proposal to fund charter schools through a larger portion of local property taxes.

Also under consideration is an amendment to the Utah Constitution that would prohibit the state from spending any more in its budget each year than the amount it spent in the previous year, adjusted for inflation and population growth, regardless of whether the economy or tax revenues improve.

Although there are many issues I could address in this week’s column, I think it is important that I discuss a bill passed by the House and Senate this week regarding access to governmental records.

As you may have heard, the news media has been highly critical of the legislature’s action on this bill.  In this column, I will explain exactly what the bill does and why I voted for it.

House Bill 477, Government Records Amendments, is sponsored by Rep. John Dougall, who has been a leading advocate of transparency in government for many years.  Following are the main provisions of the bill.

The bill specifies that voice mails, text messages, instant messages and video chat are not government records.  E-mails are considered government records.

The bill allows state or local government to charge a person requesting a government record the actual costs of producing the record, including charging for any time spent researching and compiling the information into the format requested by the person.

The amount of the charge must be based on the wage of the lowest-paid person at the agency who can perform the task.

The agency is not allowed to charge any amount for producing a single, readily-identifiable record, or for the first 15 minutes of time spent in filling any records request.

The bill leaves in place the standard of ten business days that an agency has to fill a records request, but adds that this time period may be extended if the request requires review or compiling of a large number of documents.

The bill exempts from disclosure any correspondence between a state legislator and citizens regarding the performance of the legislator’s duties.

The bill exempts from disclosure any correspondence between a state legislator and another legislator or the legislature’s employed staff.

The bill exempts from disclosure any internal communications or working papers of the governor.

The bill clarifies that the state records committee administers only records of the executive branch and local governments, not records of the legislative branch.

The bill requires courts to balance the interests of privacy and disclosure when a records decision is appealed, and to release the record only if the preponderance of evidence favors disclosure.

The bill allows the legislature to determine the requirements applicable to its own records, including classification of records categories, time to respond to a records request, and the amounts of fees to be charged.

Finally, the bill removes the preamble to GRAMA that sets forth the legislative intent of the open records law.  This is consistent with a recent effort by the legislature to remove “intent language” in statutes in order to simplify judicial interpretation of statutes.

The reasons I voted for this bill are as follows:

1. I agree that taxpayers should not be required to pay for the expense of preparing voluminous records requests and that those expenses should be paid by the person making the request.

2. I believe that, under the current state of technology, text messages are similar to phone calls, which have never been subject to government records requests.  If a text message is used in a manner more like an e-mail or letter, however, then I believe it should be subject to disclosure.

3. I believe that government employees should not be paid overtime to fill a voluminous records request but instead should complete the request during normal business hours, even if this delays completion of the task.

4. I believe that many citizens have an expectation of privacy when communicating an individual message to their elected legislators.

5. I believe that the principle of separation of powers requires that the legislature establish and administer the rules that will govern its own records.

6. I believe that recent court decisions have unjustifiably expanded GRAMA based on its intent language, at the expense of individual citizens’ privacy.

7. I believe that this bill will still allow 90 percent of all records requests to be promptly filled, while requiring further appropriate inquiry into the more complicated 10 percent of requests.

8. I believe that Utah has one of the most transparent and informative systems of access to government records in the country, and I believe that will not be substantially changed by this new law.

9. I believe that certain citizens and media outlets have improperly made broad requests for thousands of government documents instead of narrowly focusing their request on a single document or group of documents.

Finally, I would like to comment on the manner in which this legislation was passed by the Senate and the House. I was first informed of this bill on Tuesday afternoon by House leadership in a closed meeting of all Republican representatives.

I first read the bill on Wednesday and the bill came up for a vote in the House on Thursday.  All 58 Republican representatives, including me, voted for the bill.  Three Democrats voted yes and 12 Democrats voted no.

I believe it would have been better to have much more discussion and debate on the bill.  I believe that the bill would not have passed in this exact version if it had been subjected to scrutiny for several weeks by the media and the public.

I also believe a legislator sometimes needs to cooperate with decisions that have been made by legislative leadership, especially late in the session, in order to preserve the legislator’s ability to pass important pending bills, the fate of which rests in the hands of legislative leaders.

I will write one final column next week to summarize the significant items of this year’s session.

As always, please feel free to contact me to express your thoughts pertaining to any legislative matters. 

My email address is kraigpowell@utah.gov and my phone number is 435-657-0185.


BY REPRESENTATIVE KRAIG POWELL   03/06/2011



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