Utahns who are denied a records request may soon have a new way to appeal the decision.
SB277 would replace the seven-member State Records Committee with a single lawyer with expertise in government records who is appointed by the governor and approved by the Senate. That person will also be the director of the newly-created Government Records Office. The bill passed the Legislature March 6.
Eliminating the committee will, in the words of Republican Mike McKell, the Senate sponsor, streamline a process that is “too slow and too inefficient.”
“We have a significant increase in appeals [in recent years],” he said during a Feb. 18 Senate committee hearing. “These appeals are taking longer and longer to move through.”
Utah’s Government Records Access and Management Act was passed in 1991 and gives the public access to information maintained by state and local governmental entities. It allows journalists and everyday Utahns to request records like police reports and correspondence between elected officials, as well as data obtained by state agencies. It also details guidelines for managing that access and in some cases, restricting it when a request seeks sensitive or private information.
Lawmakers tried to make changes in 2011 but eventually repealed them after backlash from Utahns of all political stripes.
Despite many lawmakers and government officials throwing their support behind this year’s efforts, public reception has been frosty.
There was near unanimous public opposition to the changes. Some were skeptical of the consolidation of the appeals process to one person. Others spoke highly of the diversity of viewpoints inherent in the seven-member committee.
Speaking on the House floor on March 5, Republican Rep. Michael Petersen said he’s heard an earful from his constituents.
“I have to say, I'm really bewildered because every bureaucrat I have spoken with … they all love what we're doing here,” he said. “But every citizen I've spoken with, every email I've received from people who actually make the requests, the people who actually have to trust that the system is working, they hate it.”
Peterson and several other Republicans voted against the bill, but it still passed the House with a vote of 44-23.
The bill has undergone significant changes during its legislative journey.
The original version would have done away with the “balancing test” used to determine whether a record should be released to the public. In short, the test requires officials to release protected records if it’s determined that the public interest is greater than or equal to the reasons for keeping it secret. That test remains intact.
Mechanisms have also been added to help insulate the new position from political influence. Now, the individual charged with overseeing the appeals process can only be fired “for cause.” An independent performance evaluation process for the position has been added to create more public transparency in how the office will operate.
Speaking to reporters on March 6, McKell said he was confident that the bill is now in a good place.
“I think [the House] made the bill better because they added a review of that administrative law judge,” he said. “I thought the idea, in the end, where it landed, to provide more oversight, more involved the public, was better.”
The Utah Media Coalition, which represents several media organizations in legislative matters, was originally opposed to the bill. It is now taking a neutral stance.
“While the State Records Committee has a strong legacy, the Media Coalition also understands there could be some advantage to a law-trained Administrative Law Judge making record-access determinations,” wrote attorney Michael Judd.
The bill now heads to Gov. Spencer Cox.
