Obama administration using security concerns to hold back public information

12 03 2013

When President Barack Obama took office, open-government advocates were hopeful his administration would be more transparent than his predecessor’s.

While Obama did restore the presumption of openness in public records, reversing former Attorney General John Ashcroft’s directive to deny records requests if there was even the slightest way to legally do so, his administration hasn’t been as forthcoming as some would like.

As The First Amendment Center reports, an Associated Press analysis shows that his administration denied about one-third of the requests it received in 2012, a slight increase over 2011’s denial rate. One of the more common reasons for denying records or censoring them was national security issues.

The AP study noted it could not determine if the administration was abusing the national-security exemption in the federal Freedom of Information Act or if people were asking for more security-related documents, such as policies on the use of unmanned drones against American citizens overseas.

The AP did find that Obama’s administration was making more use of the “deliberative process” exemption, which allows government to hold back documents related to the behind-the-scenes decision-making process.


Utah legislator requiring mug-shot requesters to swear they won’t charge to remove pictures from websites

8 03 2013

Rep. Paul Ray doesn’t see HB408 as restricting access to jail booking photos, but how people use the mug shots.
But others see it as a dangerous foray into restricting public records.

Ray, R-Clearfield, is sponsoring legislation that would require people requesting mug shots to sign an affidavit swearing they won’t require people to pay to have a mug shot removed from a website or magazine. Ray claimed some of the sites charge between $500-$1,000 to remove the pictures, a move he labeled a “scam.”

“You have somebody, for instance a  husband and wife arrested on a domestic [violence charge]. They book them in, not charge them and end up releasing them,” Ray said. “They’re trying to fix their marriage, and now their mug shots are all over these magazines, and they’re charging them to get it off there.”

One site, slcmugshots.com, runs advertisements for a firm that offers instant removal for $99, a discount from the regular $159 rate. The site also has a disclaimer that photos are not proof of guilt.

Ray said Salt Lake County Sheriff Jim Winder requested the bill. Winder’s office has stopped posting mug shots online, requiring those who want them to instead file requests under Utah’s Government Records Access and Management Act.
“The purpose of these mug shots is to identify criminals,” Winder told the House Law Enforcement and Criminal Justice Committee Thursday, “not bully or harass citizens.” He said journalists can still file GRAMA requests for mug shots.

The Utah County Sheriff’s Office only posts low-resolution thumbnail pictures of those booked at the Utah County Jail.

Under Ray’s bill, those who charge to have the pictures removed after signing the affidavit would be charged with lying to a police officer, a class B misdemeanor punishable by up to six months in jail. Ray claims the affidavit would be required for those making bulk requests, but the bill indicates it would be required of those seeking a single shot.

While nobody spoke against the bill at the committee, which voted unanimously to send it to the full House for consideration, open-government advocates see it as setting a dangerous precedent.

Salt Lake media attorney Jeffrey Hunt said it could embolden government agencies to start asking people why they are seeking public records, which could chill records requests.

“The whole purpose of GRAMA is if a record is public, you should have it and not have to explain why,” Hunt said.
Jim Fisher, an associate professor of communication at the University of Utah, said the bill appears to be an attempt to legislate journalistic ethics.

“It’s one of those laws that’s based on morality and not legality,” Fisher said.

Responsible journalists, Fisher said, typically do not run the names of people who have merely been arrested but not charged with a crime. But that is a question of ethics, not law.

Hunt said a better approach to the problem would be to enforce laws relating to extortion or fraud.

The Utah’s Right website does not publish the names of those whose criminal cases have been dismissed or have entered into plea-in-abeyance agreements. The site’s staff will remove the names of those whose criminal records have been expunged by the courts.

Should records fee waivers be mandatory? Legislature puts off answering question

7 03 2013

Rep. Brian King attempted to address one of the issues that the GRAMA Working Group failed to in the wake of the HB477 debacle of 2011.

The Salt Lake City Democrat’s HB122 would have required a government body or agency to waive fees for records, once it has been proven that releasing the record would benefit the public more than an individual. Currently, the Government Records Access and Management Act states that entities “may” grant fee waivers when requests are made that are deemed to be in the public’s interest.

Instead, the measure has been thrown into interim study, where King and opponents of the bill are supposed to work out their differences, with the hope of bringing it back in the 2014 General Session.

When then-Rep. John Dougall, R-American Fork, unveiled HB477 in the waning days of the 2011 Legislature, one of its provisions called for  including administrative and overhead costs in the “reasonable costs” of producing a document. Which meant that an entity could not only charge for the actual cost of copying the document (which, ideally, should never be more than 2 cents a copy) and the salary of the lowest-paid person who can handle the request, but the employee’s benefits, the utilities for the office building and whatever else they wanted to tack on.

Fortunately, HB477, and its onerous fee schedule, were repealed amid the great public outcry from both ends of the political spectrum, and a task force was formed to address the so-called problems with GRAMA.

King, who sat on the task force, said the fee issue was one that the group didn’t address, and he decided to tackle it as a legislator.

His bill left entities the discretion of determining if a GRAMA request met the public-interest test — was the person seeking the records for the greater public good or for a purely personal reason? But, once a request was deemed to be in the public interest, the fees had to be waived, no ifs, ands or buts.

Not surprisingly, the Utah League of Cities and Towns objected. Lynn Pace, a member of the league’s board of directors, painted a dire picture of city recorders and county clerks getting swamped with voluminous records requests that had to be granted at no cost to the requester.

“If you broadcast in advance that whatever you are asking for is free,” Pace warned members of the House Political Subdivisions Committee, “the requests will get larger.” He even pointed to the Alta case, where a records request ran into thousands of pages and tens of thousands of dollars in fees.

But open-government advocates are quick to note that the Alta case was an extreme outlier, which is not a sound basis for making policy decisions.

But the current policy opens the door to potential abuse, with the fees used as more than recouping the basic copying costs.

“Fees can be charged in such a way that , even though, a document or record being requested is public, the fees that are charged could restrict access,” Betsy Ross, former State Records Committee chairwoman, said in a recent interview.

And the Utah State Records Committee has agreed, arguing in one case that a Department of Corrections policy limiting inmates to 100 fee pages of documents a year was denying access to records for inmates who couldn’t afford to pay for additional pages. While the committee said the department could charge for copies, it couldn’t use fees to block an inmate from just looking at the records.

When Utah Democrats sought records on how the Republican-dominated Legislature conducted the recent redistricting process, it was denied the records because lawmakers chose to bill them — and others who asked for the records — $15,000. The records were eventually posted online after several media outlets requested access to the papers, convincing the legislative leaders that there was a “legitimate” public interest in the information.

Open-government advocates should use the interim meetings as a time to show legislators that waiving fees for public-interest requests is worth more in credibility and transparency than the money entities may get from a requester.





Push to make birth dates secret stopped as Utah House Bill 370 goes to interim study

5 03 2013

In Utah, when both the state Republican and Democratic parties line up against a bill, it’s a bad omen for the sponsor.

That’s what happened with Rep. Brian Greene’s attempt to make birth dates private records under the Government Records Access and Management Act (GRAMA). Greene, a Pleasant Grove Republican, claimed the bill was needed to protect Utahns from identity theft and elder abuse.

His bill, HB370, was supposed to make its second appearance before the House Political Subdivisions Committee Wednesday, but the bill has been sent to interim study.

Greene first presented the bill to the committee Monday, arguing that a birth date was one of the key pieces of information that identity thieves need — the others being name and Social Security number  — and the state shouldn’t be handing it out to anyone who buys voter rolls or looks at court records.

“It just seems — I don’t know if ironic is the right word — but troubling when we have our own state attorney general’s office and other state agencies saying protect that birth-date information, that we don’t have a policy in the state making that information private,” Greene said. “We disclose that information to anyone who is willing to pay for it.”

But Matt Lyon, the Utah Democratic Party’s executive director, and Jeff Peterson, deputy victory director of the Utah GOP, said the two parties opposed the bill. The parties use the information to identify voters and help them find where to vote and tell them which candidates are on the ballot.

Lyon said birth dates can help parties target younger voters and improve voter turnout overall, with no risk of someone’s identity being stolen.

“There is no recorded case of identity fraud occurring … by someone pulling information off the voting records,” Lyon said.

They also submitted a letter signed by GOP Chairman Thomas Wright and Democratic Chairman Jim Dabakis urging the committee to kill the bill.

They were not the only ones aruging the bill would do more harm than good.

Mike Bailey, with Lexis-Nexus, said that having access to birth dates in records allows his clients to identify people and prevent fraud, especially when dealing with two people who have the same name.

Mike Sontag, with Bear River Mutual insurance, said the insurance industry needs to be able to see a list of accidents by age group so it can better assess whether a young driver is a greater risk than others.

And Jacey Skinner, director of the Utah Sentencing Commission, said the bill would make it harder for people to identify convicted criminals who may share the same name as an innocent person. The birth date eliminates that confusion, Skinner said.

While the Attorney General’s identity theft website said to be wary of telemarketers trying to get personal information, including birth dates, it does not list public records as a source identity thieves turn to. Instead, identity thieves will use phishing scams to lure people into providing sensitive information, steal mail or go Dumpster diving to find papers with the information they seek.

And, as an identity-theft victim, I know for a fact that this bill would do absolutely nothing to stop identity theft.

When I was attending Brigham Young University years ago, I got a call asking me to come down to the Provo Police Department about a stolen check. After going through handwriting analysis, I was cleared of being a thief and informed that I was a victim of an identity thief. Someone had taken a check from a student on campus and cashed it at a local bank in my name, using a student ID card with my name and student number (which happened to be my Social Security number).

Then, I got a statement from a credit union about “my” account, and notices that “I” was writing bad checks all over Utah Valley. The police, in hopes of catching the thief, decided to keep my name on BYU’s blacklist, the rouge’s gallery of people whose checks have bounced and are not to be cashed on campus.

That move essentially froze me out of my own account, at a time when I was trying to court a young lady. Meanwhile, the police had to write letters  to the collection agencies to let them know I wasn’t the one writing the rubber checks, which totalled more than $5,000.

Eventually, the thieves turned themselves in, and when they came to me to apologize, I asked them how they did it. They told me they picked my name and student number at random from a class roll. (Ironically, the class in question was “Life and Teachings of Jesus Christ.”) With that, they were able to get the university to make a new student ID, with one of their pictures and my name on it.
They didn’t have my birth date, and they didn’t file a public records request. Greene’s bill wouldn’t have helped me, nor any other identity-theft victim. The thieves are just not stupid enough to make a records request. Instead, the law would close off access to information that helps journalists and the public distinguish between two people who share a common name.

Oh, and that young lady I was trying to date during that episode? We’re celebrating our 25th wedding anniversary this year.

Advocate: Orem non-vote on UTOPIA payment playing in shadows of open-meeting law

1 03 2013

Orem’s decision to pump $24 million into the troubled UTOPIA fiber-optic network is gaining attention, but not because of the amount of money.

Rather, it was the lack of a public hearing — or even formal council  vote — to take the action.

The city agreed Tuesday to bond for $24 million, as part of its 2010 commitment to support the network. Orem is one of several Utah cities that are part of the UTOPIA consortium.

But the agreement wasn’t a formal vote of the City Council. The council rather gave its verbal consent to the bond issue, and there was no public hearing to find out if residents wanted the city to go further into debt to support UTOPIA.

Richard B. Manning, the city’s administrative services director, said a public hearing wasn’t necessary because the bonding is part of the city’s $65 million commitment to the network. He said the public would have a chance to weigh in on the issue when the city conducts a public hearing on the 2014 fiscal year budget later this year.

But others think the city should have done a public hearing.

Ryan Roberts, the Utah State Auditor’s local government supervisor, said the city needs to have a public hearing on any budget changes before the money is spent.

Joel Campbell, an associate professor of print journalism at Brigham Young University and a nationally-recognized open-government advocate, said the city’s actions violated the spirit of the Open and Public Meetings Act, at the very least.

“UTOPIA is such a big deal that it warrants an open debate,” Campbell said. “They need to stop playing in the shadows of the law.”

Campbell said the issue should have been put on the agenda as a formal action item, with a public hearing.