The undoing of Utah's records law -- HB122

HB 122 should concern anyone who cares about proper checks and balances on government power. This bill would expand the legal exception for attorney-client records under the Government Records Access and Management Act, the state's public records law to include "anticipated" litigation. Even worse, it is a wholesale elimination of several categories of records from GRAMA's public interest balancing test.

Among the records that would not be subject to the balancing test under HB122 are law enforcement investigatory records, employee disciplinary records, audit records and licensing records. This robs the public of "due process" to request opening of records that have great public interest. GRAMA properly allows these records to locked up, but this bill throws away the key. The public loses is right to challenge such closures if this bill becomes law.

The government officials have expressed fears that the balancing test would allow a judge or the State Records Committee to second guess or overrule a legitimate "protected" classification. That's the point. The law is working the way it was designed to work. It has been used very rarely and only in cases when requesters were able to make a case for an overriding public interest including the Olympics bribery scandal investigation, disciplinary records at Salt Lake County and wilderness road designations . If there were ever cases where the public had a right to know, these were it. Maybe, it's because government attorneys never like to lose cases that the Attorney General is behind this bill, but the power of government officials to classify records, including attorneys, is properly checked by the State Records Committee and state courts.

The balancing test is a check and balance by the judiciary on the executive, a process that has a long and honored place in the American system of government. Deference to public disclosure is also appropriate in a democracy. In fact, this bill would run amok of the legislative intent. GRAMA was written to "favor public access when, in the application of this act, countervailing interests are of equal weight." That means, all things being equal, that the public interest should prevail.

That balancing test was a result of a five-year process that involved discussion of many record users and government agencies. Yet, the AG's office never sought to discuss this measure with most of the public-interest groups that were involved in GRAMA's creation. The public should cry foul if legislators try to pass HB 122.