Utah’s senators still looking at federal reporter’s shield law

31 07 2013

The Senate Judiciary Committee will decide Thursday whether reporters should be able to keep sources confidential without having to go to jail.

The committee is taking up the Free Flow of Information Act, sponsored by Sens. Chuck Schumer, D-N.Y.; Lindsey Graham, R-South Carolina; Amy Klobuchar, D-Minn; and Richard Blumenthal, D-Conn. The bill would create a qualified privilege for reporters, allowing them to protect confidential sources of information.

Utah Sens. Orrin G. Hatch and Mike Lee, both Republicans who sit on the Senate Judiciary Committee, haven’t made up their minds yet.

“Senator Lee is still evaluating the law and has not yet made a decision,” Brian Phillips, Lee’s communications director.

Hatch spokesman Matthew Harakal said he was not aware of whether the state’s senior senator had taken a position on the bill. He said he was “still taking a look at it.”

“We just have to wait and see tomorrow,” Harakal said.

The shield law was first proposed in 2006 and again in 2009, but both times it died. This year’s incarnation came after the Justice Department subpoenaed phone records from the Associated Press.

The proposed shield law would be similar to ones in 48 states. The bill would offer journalists a qualified privilege to not disclose confidential sources.

The bill is supported by journalism organizations, including the Society of Professional Journalists and the Reporters Committee for Freedom of the Press.





Governor Herbert still looking for public member for records committee

23 07 2013

Filling a vacancy on the State Records Committee wasn’t on the Utah State Legislature’s agenda this past week.

While Gov. Gary Herbert sent recommendations to the Senate for 27 positions that needed advice and conset, including former LDS Presiding Bishop H. David Burton appointment to the University of Utah Board of Trustees and former LDS General Young Women’s President Elaine S. Dalton’s nomination to serve on the Utah Valley University Board of Trustees, there was no nominee for the records committee.

The Legislature voted earlier this year to take away the state auditor’s position on the committee and add a second seat for a public member. Four people have applied so far for the position on the body that hears appeals of records denials.

The committee gave a “soft recommendation” to Marie Cornwall, an emeritus sociology professor at Brigham Young University in June.

Ally Isom, the governor’s spokeswoman, said Herbert will likely send a name to the Senate for its consideration in September. Isom said Herbert is not trying to drag out the process.

“It’s been a busy, busy month,” Isom said, noting that Herbert has been on a trade mission.

The new appointee would replace Betsy Ross, the auditor’s representative on the committee who was fired in December by incoming state Auditor John Dougall. Ross had opposed HB477, the bill Dougall sponsored as a legislator in 2011 that would have gutted the Government Records Access and Management Act (GRAMA).

Dougall claims he axed Ross because he did not believe she was doing her job as the office’s liaison to the Legislature. He also endorsed removing the auditor’s seat, as it would allow him to audit the committee without worrying about a conflict of interest.

The Legislature did address an open-government issue during the special session. It voted to allow the House committee investigating Attorney General John Swallow to close some of its meetings and to keep its records away from the public.





Utah Legislature votes to shield portions of investigation into Attorney General John Swallow

17 07 2013

While pledging transparency, the Utah Legislature voted to place parts of its investigation into Attorney General John Swallow behind a cloak of secrecy.

The House of Representatives voted 67-6 Wednesday to approve HB1001, which allows the House investigative committee charged with investigating Swallow to subpoena witnesses, place them under oath and grant limited immunity. The Senate voted 28-0 to approve the measure, with Sen. Curt Bramble, R-Provo, being the only senator not present for the vote.

But the bill also grants the committee the power to close its meetings by a simple majority vote to discuss strategy, obtain legal advice or to interview witnesses. It also allows the committee to declare some of its records as protected, including records of a witness interview, committee members’ impressions of the case or documents that “the disclosure of which would interfere with the effectiveness of the investigation.”

The bill states that the records would remain protected until the committee concludes its business.

“I believe the process should be as transparent as possible,” House Majority Leader Brad Dee, R-Ogden, said. But he said there was a need to maintain confidence between the committee and its legal counsel.

Dee also claimed the Legislature went the “extra mile” by discussing the bill with members of the Utah Media Coalition, of which The Salt Lake Tribune is a member, and they were OK with the restrictions.

Salt Lake City media attorneys Jeff Hunt and Michael O’Brien represented the coalition in discussions with legislators last week.

Hunt said lawmakers were actually looking to put more restrictions on the information, and what came out in the bill was a compromise. Hunt said traditionally in Utah, criminal investigation records are typically regarded a protected records, and the legislative committee records fell into that category.

Also, Hunt noted that had the Legislature made the records private, as was originally proposed, the public would not be able to challenge the closure since private records are not subject to the test balancing the public’s interest in disclosure against the need to keep the record under wraps. Protected records, on the other hand, can be made public if the public interest at least equals the privacy concern.

But such an appeal would go through the Legislature’s own records committee and then the courts. Lawmakers exempted themselves from having to defend record closures before the State Records Committee.

Not everyone was happy with granting the committee exemptions from open-government laws.

Rep. David Lifferth, R-Eagle Mountain, said the committee should not be meeting behind closed doors, but should allow the public to see what is being done.

Jim Fisher, who has taught journalism at the University of Utah, said the investigation should be completely open, with nothing held back.

“It seems to me that there is almost nothing more public than the review of a public employee by the Legislature,” said Fisher, who is also on the board of the state chapter of the Society of Professional Journalists. “It should be public from the get-go.”

Swallow has been accused of helping indicted St. George businessman Jeremy Johnson attempt to bribe U.S. Senate Majority Leader Harry Reid; suggesting to businessmen that contributing to then-Attorney General Mark Shurtleff’s campaign would give them special consideration in the event of an investigation; and violating attorney-client privilege. Swallow is already the target of a federal investigation, as well as probes by the Salt Lake and Davis counties’ attorneys.





U.S. Border Patrol wins IRE’s first-ever award for withholding information

11 07 2013

The Society of Professional Journalists and its Utah chapter are not the only groups using “awards” to spotlight agencies that withhold information from the public.

Investigative Reporters and Editors has created a “Golden Padlock” award to highlight government agencies and officials that stymie efforts at open government and transparency.

IRE, a nonprofit organization dedicated to improving investigative journalism, awarded the first Golden Padlock to the U.S. Border Patrol, for holding back details on shootings involving its agents along the border with Mexico that resulted in several deaths.

“The U.S. Border Patrol’s resounding silence on fatal shootings involving its agents epitomizes the kind of intransigence for which this award was created,” IRE President David Cay Johnston said in a statement issued by the group. “Accountability is an essential element of any public agency, but all the more so when its agents are empowered to fire weapons that kill. The Border Agency appears to have forgotten that duty.”

Other nominees for the award included the New Jersey Transit Authority for giving reporters a completely blacked-out copy of its hurricane-response plan; and the national Centers for Disease Control and Prevention, which took five years to produce a requested document on Lyme disease.

IRE also added the U.S. Justice Department and Attorney General Eric Holder for revelations that the department was monitoring journalists’ phone records.





Sen. Deidre Henderson named transparency board chair in absentia

10 07 2013

Wednesday was supposed to be Sen. Deidre Henderson’s first meeting with the Utah Transparency Advisory Board.

But Henderson, a Spanish Fork Republican who is taking the place of Senate President Wayne Niederhauser, wasn’t there. Instead, she was attending a meeting of the National Conference of Insurance Legislators in Philadelphia.

But her new board colleagues came up with a suitable punishment: They unanimously elected her as the board’s new chair, a post also previously held by Niederhauser.

“Pick on the person who isn’t there,” Henderson tweeted after learning about her appointment.

Henderson sponsored SB283 during this year’s legislative session which expanded the board’s duties to provide access to more than just financial information through the state’s transparency website. Her bill also expands the board’s membership, including adding two public seats to the board.