U.S. Supreme Court: States can withhold documents from nonresidents

29 04 2013

The U.S. Supreme Court, in a unanimous decision announced Monday, stated that there is no constitutional right for people to obtain public records from states they don’t live in.

According to the Reporters’ Commitee for Freedom of the Press, the high court upheld a provision in Virginia’s Freedom of Information Act that states non-residents cannot file records requests.

“This Court has repeatedly made clear that there is no constitutional right to obtain all the information provided by FOIA laws,” Justice Samuel Alito wrote for the court.

The suit was brought by Mark J. McBurney and Roger W. Hurlbert. McBurney, a former Virginia resident who moved to Rhode Island, attempted to obtain information on child-support payments from his ex-wife. Hurlbert, a California businessman, was seeking property-tax records for his business.

The pair are planning to lobby Virginia to repeal the residents-only clause in its records act.

The Society of Professional Journalists and other open-government groups filed friend-of-the-court briefs supporting the pair’s lawsuit.





State records ombudsman offers primer on Utah records fees

26 04 2013

Rosemary Cundiff, the state’s records ombudsman, recently posted an explanation of what fees can be charged under the Utah Government Records Access and Management Act (GRAMA).

To put it in a nutshell, government entities can charge “reasonable fees” to cover the costs of producing records. The idea is that the employee who is filling the records request is being pulled away from other duties and there’s the cost of the paper and toner in the copier.

During the HB477 debacle in 2011, then-Rep. John Dougall attempted to expand the definition of reasonable fee to include the cost of benefits for said employee, the utilities for the office building and whatever else he could to jack up the fees.

Cundiff outlines what should be considered as a reasonable cost, such as only billing for the hourly wage of the lowest-paid person who can fulfill the request. That means if a $7.25-an-hour clerk can find the documents, the agency can’t bill you for the $200-an-hour lawyer to do the same thing.

Utah does allow for fee waivers, but as Cundiff points out — and many record seekers have learned the hard way — that the law says fees may be waived. In other words, an agency can waive fees out of the goodness of its heart, but is not legally required to do so.

This leaves the door open for some agencies to turn public records into a revenue stream, or use a fee as a way to discourage people from seeking records, since they are not commanded to waive fees.

State Rep. Brian King, D-Salt Lake City, attempted to address this by taking away the discretion in cases where the public benefited from releasing the document. But after the Utah League of Cities and Towns said the move would drive cities to the brink of fiscal ruin, lawmakers threw the bill into interim study, where open government advocates hope it will be considered and not allowed to die a slow, quiet death.

But in the meantime, what can people do to ensure that they are not paying too much for public records?

First, as Cundiff points out, there is no fee to merely look at a public record. People can do this to narrow their search to exact pages they are looking for, and thus reduce their copying costs. The agencies are barred from charging for staff time for these inspection sessions.

And if you want copies, make them yourself, as Joel Campbell, an assistant professor of print journalism at Brigham Young University pointed out. There are portable scanners that look like wands and don’t have to be hooked up to a computer to make a digital copy of a document. Or just use your digital camera or cellphone to take a picture of the document, as I’ve done in the past.

If the records are electronic, bring a thumb drive to copy them.

And if you get charged a fee, ask for a specific breakdown of the cost, line by line. And it helps to do a little homework before and find out what other agencies are charging for copy fees, as well as what the local copy shop charges for a photocopy. If a copy shop can make money off a 7-cent copy, why is a government agency charging 25 cents or even a dollar?

If all else fails, fees can be appealed in the same manner as denials. While the law says fees may be charged, the State Records Committee has found instances where an outrageous fee was being used as a means to deny access and ordered the fee waived.





Utah gets B+ for transparency, but can still do better

26 04 2013

The U.S. Public Interest Research Group Education Fund ranked Utah ninth in the nation for transparency on financial matters.

The group gave Utah a grade of B+ for its transparency website. It noted that Utah’s site provides “checkbook” level information on what government entities are spending, and cited how the data encouraged the state to cut back on buying bottled water to save money.

The state did receive some low marks for not having searchable and downloadable formats for economic-development tax credits, or information to hold the companies receiving the tax breaks accountable.

 





UDOT agrees to meet with activists — but without journalists present

24 04 2013

A Farmington group is giving the Utah Department of Transportation bad grades when it comes to transparency.

As Lee Davidson reported, a UDOT project manager told Lori Kalt, president of the SaveFarmington group, that the agency would meet with her group to discuss the West Davis Corridor plan — but only if journalists were not attending the meeting.

The West Davis Corridor would extend the Legacy Highway into Davis and Weber counties, and Kalt and other activists don’t want the highway going through Farmington Bay.

Kalt said the group agreed to the condition, as well as submitting questions in writing — in order to have the meeting. Nor were her group or the city allowed to present any alternatives.

But she said the answers given at the April 18 meeting were not satisfying.

“They were totally vague, totally dodged the questions or didn’t even answer the questions,” Kalt told Davidson. “I heard a lot of, ‘That answer will be provided in the draft EIS [environmental impact statement].’”

UDOT spokesman Nile Easton said he informed the West Davis team by email that it could not exclude the media from a meeting with the activists. He said it went against UDOT’s policy on openness.

“Any time we meet with the public in a public meeting, our doors should be open to having media attend and observe,” Easton said.

It’s not the first time a government entity has tried to duck journalists. When the John Kuhni and Sons rendering plant was preparing to move from Provo’s East Bay to Mills, the Juab County Planning Commission broke into small groups to tour the plant so reporters could not come along on the tour.





News organization seeking records on Gabrielle Giffords’ shooting

17 04 2013

Two years after a gunman shot Rep. Gabrielle Giffords in the head, documents about his case remain under government seal.
The Associated Press reports that three news organizations — The Washington Post, KPNX-TV in Phoenix and Phoenix Newspapers Inc., which publishes the Arizona Republic, want U.S. District Judge Larry Burns to unseal any remaining documents in the case, as well as release redacted information that is no longer required to be secret.
Giffords, a Democratic member of Congress, was shot in the head Jan. 8, 2011, by Jared Lee Loughner during a meet-and-greet outside a Tucson supermarket. Loughner, who pleaded guilty to 19 federal charges to avoid the death penalty, killed six people and wounded 12 other people.
Giffords resigned from Congress and is recovering from her injuries.
The Pima County Sheriff’s Office has released around 2,700 pages of documents, but at least four remain sealed, the Associated Press reported. The news organization argue that Loughner’s fair-trial rights are no longer at risk, and the information should be released.
Prosecutors have asked permission to take until May 8 to file their response to the request.





Idaho’s efforts to stifle Ogden’s Five Wives Vodka earns it a Jefferson Muzzle

16 04 2013

While Utah’s liquor laws sometimes leave people shaking their heads, it was neighboring Idaho that won recognition for attempting to ban a vodka made in Ogden.

This past week, The Thomas Jefferson Center for the Protection of Free Expression awarded the Idaho State Liquor Commission one of nine 2013 Jefferson Muzzle awards for barring the sale of Five Wives Vodka in the state.

The Jefferson Muzzles are given around April 13, Jefferson’s birthday, to recognize the foundation’s namesake’s dedication to free expression by spotlighting those who try to trample that right.

In the Five Wives’ case, Ogden’s Own Distillery attempted to sell its vodka to Idaho bars and liquor stores. The Idaho liquor agency refused to permit its sale in the state, claiming that the product’s “concept” was “offensive to a prominent segment of our population.”

Idaho’s population is 27 percent LDS, and the vodka’s name could be seen as a reference to polygamy. The label also showed a photo of a group of five women in bonnets, lifting their skirts to show their petticoats, with kittens stuffed in pockets over their crotches.

When Ogden’s Own threatened a lawsuit, and the controversy went national, the liquor board backed down — to a point. The vodka is only available through special order, meaning it cannot be stocked on shelves or prominently advertised.

“Because the value of speech is a completely subjective determination that can vary from person to person, the First Amendment does not permit government officials to impose their individual preferences on the public,” the Jefferson Muzzle citation reads. “As United States Supreme Court Justice Harlan famously wrote, ‘one man’s vulgarity is another’s lyric.’”

Other Jefferson Muzzle winners included the Oklahoma school that ordered a 5-year-old boy to turn his University of Michigan T-shirt inside out, a Pennsylvania school board for banning the book The Dirty Cowboy and officials who attempted to bar Chick-Fil-A stores from coming to their areas because of the owner’s stance against same-sex marriage.





Salt Lake County declares jailhouse booking photos copyrighted material

11 04 2013

In the latest round in the fight against mug-shot websites, Salt Lake County has copied an idea from the recording industry.

As The Salt Lake Tribune’s Mike Gorrell reports, the Salt Lake County Council unanimously voted to deny a GRAMA request Tuesday from Kyle Prall for almost 1,400 mug shots taken in January. Prall is the owner of the bustedmugshots.com website, which posts booking photos from around the country.

Prall’s site offers to remove mug shots of people who died, had their charges dismissed or were found innocent for free, while others have to pay fees, starting at $98, to remove the picture from the page.

But Salt Lake County Sheriff Jim Winder denied the request, claiming the photos were protected records because they were copyrighted images, even though copyright rules typically do not extend to documents created by the government or for it.

For instance, Dorothea Lange’s iconic “Migrant Mother” photograph is in the public domain because it was created for the federal Farm Security Administration.

But the county council concurred with Winder. “I don’t like what Mr. Prall does,” County Councilman Dave Wilde said. Wilde is described as “a strong advocate of more openness” on the council’s website.

Winder also pushed for HB408, which requires those seeking copies of booking photos to sign a sworn statement promising not to publish the pictures on websites that charge for their removal. Those who violate the law can be charged with lying to police and possibly go to jail for up to six months.

David Reymann, Prall’s attorney, described the decision and its rationale as “absurd.”

“The County Council’s decision was driven by who my client is,” Reymann said. A Salt Lake City media attorney, Reymann said he has never seen copyright invoked as a reason for denying access to a public document.

If the sheriff’s logic were universally applied, Reymann said it could cut off the public’s access to almost any document.

David Cuillier, a journalism professor at the University of Arizona and president-elect of the Society of Professional Journalists, agreed.

“Copyright has no relevance to public records,” Cuillier said. “I think mug shots should be public.”

While mug-shot sites may be looked down on, Cuillier said publishing booking photos is not about embarrassing those arrested. Rather, it ensures that the justice system is transparent.

Cuillier explained that mug shots demonstrate that a person has been arrested, and that they have not been beaten or tortured by police at the time of their arrest. He contrasted that with third-world dictatorships where people would “disappear” with no explanation.

He said both HB408 and Salt Lake County’s actions do not bode well for American-style democracy and civil liberties.

“If Utah officials want a Stalinist society, they’re off to a good start,” Cuillier said.

Reymann said he would encourage his client to appeal, which would mean filing suit in district court. The county does not recognize the State Records Committee’s authority to hear GRAMA appeals.