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.





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.





Louisiana makes it a crime to name concealed-weapons permit holders

26 06 2013

Louisiana recently made Utah’s restriction on access to concealed-carry permit information look benign by comparison.

The Reporters Committee for Freedom of the Press reported that Louisiana Gov. Bobby Jindal signed two bills into law that make it a crime to disclose the name or address of a concealed gun permit holder. Those who do face six months in jail and or a fine of up to $1,000.

In contrast, Utah’s Government Records Access and Management Act labels concealed-carry permit information as protected information, meaning the state Bureau of Criminal Identification cannot release the information, nor even confirm if someone has a permit or has lost one.

The only penalty it prescribes is for state workers who disclose such information, and it is a class A misdemeanor. But there is no penalty if, for example, one were to point out, through other sources, that Sens. Howard A. Stephenson, R-Draper, and Mark Madsen, R-Eagle Mountain, and Rep. Curt Oda, R-Clearfield, all carry concealed weapons. 

But Louisiana’s laws, passed in response to a New York newspaper’s publication of a list of handgun-permit holders, only carves out an exemption for reporting that a permit was revoked after its holder was convicted of a gun-related felony.

“There are limitations on First Amendment rights,” said Republican state Rep. Jeff Thompson, the bills’ sponsor.  “You have to balance those.”

But media advocates say the move amounts to censorship by punishing journalists for publishing information they obtained from other sources.

“The Second Amendment relates to your right to own firearms,” Louisiana media lawyer Loretta Mince said. “It doesn’t have anything to do with whether other people are permitted to know that you own firearms.”





New Jersey bill would make mug shots public records

9 05 2013

Just as Utah officials are looking for ways to restrict access to mug shots, New Jersey is going in the opposite direction.

The Daily Record of Parsippany, N.J., reports that a bill is moving through the Garden State’s legislature classifying booking photos as public records. The state’s open-records laws were ambiguous on the point, with some counties denying access and others granting it.

“Releasing pictures of defendants puts a face with a name,” the bill’s sponsor, Assemblyman Ronald S. Dancer, R-Ocean County, told the paper. “These pictures serve important public purposes, including protecting the transparency and integrity of our legal process for victims and offenders, helping to identify criminals on the run and keeping law-abiding citizens informed about the crimes and potential criminals in their communities.”

Dancer’s bill would require mug shots to be released to the public within 24 hours of an arrest when practical.

Local prosecutors had read state law as meaning they could withhold mug shots. They also argued that releasing the photos could possibly taint the jury pool.

But the bill’s supporters say there is no evidence that releasing the photos would sway potential jurors.

“If the prosecutors were right, then we should never release arrest information, because that will taint the jury pool, too,” Walter Luers, an open-government attorney, told the Daily Record. “The fact is any coverage any time the information gets out will taint the jury pool.”

Contrast that to Utah, where several jailers are making it more difficult to download — or even view — mug shots in an attempt to keep them away from mug-shot websites that purportedly charge people to remove the images.

Salt Lake County, for example, no longer posts mug shots online, requiring people to file a request under the Utah Government Records Access and Management Act to get copies. And even that isn’t a guarantee, as the owner of bustedmugshots.com learned.

In that case, the county declared that the mug shots couldn’t be released because that would violate copyright laws.

This year, the Legislature passed — at Salt Lake County Sheriff Jim Winder’s insistence — HB408, which requires people filing GRAMA requests for mug shots to sign a sworn statement that they won’t post the pictures on websites that charge to remove them.

The New Jersey bill is headed to committee.





Utah District Court affirms records should be free if public benefits

6 05 2013

A 3rd District Court judge’s ruling in an open-records case does more than force the Utah Legislature pay $15,000 in attorney’s fees.

Judge L.A. Dever’s April 30 ruling on behalf of the Utah Democratic Party affirms that government agencies should waive fees when a records request benefits the general public. Dever rejected the Legislature’s attempt to charge the Democrats almost $15,000 for copies of correspondence and other documents related to the redistricting effort.

“I’ve always maintained if there were a case that qualified for public interest, this was it,” said Joel Campbell, an associate professor of journalism at Brigham Young University.

The party sought the documents to find evidence of Republican skulduggery in the once-a-decade redrawing of congressional and legislative district boundaries. Initially, the Democrats agreed to pay $5,000, but lawmakers increased the fee, and only allowed them to take one of three boxes of documents unless additional money was paid.

Eventually, after The Salt Lake Tribune and other media outlets sought to obtain the records, lawmakers posted them online for no cost.

Utah’s Government Records Access and Management Act states that government agencies may waive fees if releasing documents would benefit the public rather than an individual. However, the fee waiver is strictly discretionary.

Rep. Brian King, D-Salt Lake City, attempted to remove that discretion from the law with a bill that would have required fee waivers if the public-interest test was met. That bill was sent to interim study after the Utah League of Cities and Towns claimed it would be financially ruinous to cities to offer free records.

Even though district court decisions are not considered decisions of record, Campbell believes it will establish a precedent for demanding fee waivers in cases where a documents are sought for a public benefit.





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.





2013 Legislature: Not worst on open-government issues, but could have done better

10 04 2013

If the 2011 Utah State Legislature, which railroaded HB477 through, was regarded as the worst for access to public records, 2013 was a significant improvement.

“In the end, it was good for open government,” said Linda Petersen, president of the Utah Foundation for Open Government.

One noticeable difference: Legislators were more willing to consult with the Utah Media Coalition — which includes The Salt Lake Tribune and other Utah media outlets — on open-government bills. In contrast, HB477, which gutted the Government Records Access and Management Act (GRAMA), was written in closed-door meetings and rushed through committee meetings in the waning days of the Legislature.

“I never saw so much effort by the Legislature to include the media,” Petersen said. “They still have the notion that open government is about media access.” Petersen said open government is for all Utahns, and journalists use it as representatives of the public.

But lawmakers could have done better, as they allowed some bills to pass that restricted access to public records such as Utah Transit Authority trip data and jail booking photos.

“I’ll give them an A-minus or a B-plus,” said Joel Campbell, associate professor of print journalism at Brigham Young University. “They rejected some bills that would have closed access to government records and passed bills that gave access.”

On the plus side, legislators passed SB77, Sen. Deidre Henderson’s bill requiring recordings and written minutes of public meetings to be posted on the state’s public meeting notice website. Campbell said the Spanish Fork Republican’s bill puts the meeting records together in one place, rather than having people looking all over the Internet for different websites.

Henderson’s other open-government bill, SB283, is one that, Campbell says, looks good on the surface. It directs the state’s Transparency Advisory Board to look at making more public records available on the state’s Transparency website.

But, Campbell noted the details give cause for concern. The board’s final recommendations have to be approved by the Legislature, a body Campbell said has been too willing to close access to public records.

SB94, Sen. Curt Bramble’s open-government bill creates an online repository lawmakers can place email into, so the public can see it without having to file a GRAMA request. It also takes away the state auditor’s seat on the State Records Committee, making it a public seat.

Campbell said the email repository looks good on paper, until one realizes that participation in it is voluntary. He doesn’t see too many legislators willing to contribute to it if left to their own devices.

And the records-committee provision is a point of concern for Campbell and others. In December, incoming State Auditor John Dougall — who sponsored HB477 when he was in the Legislature — fired Betsy Ross, the auditor’s representative on the committee.

Ross was an opponent to HB477 and regarded as a champion of open government.

The Legislature did shoot down HB307, Rep. Brian Greene’s proposal to strip birthdates off public records such as voter rolls and court records. Greene, a Pleasant Grove Republican, claimed the bill was necessary to protect Utahns from identity theft and elder abuse, even though critics — including the leaders of the state Democratic and Republican parties — pointed out that there is no case where someone used public records to commit identity theft.

But the Legislature also failed to pass Rep. Kraig Powell’s HB207, which would have required public entities to post meeting notices three days before a meeting. Campbell said that would have provided people with more information on what public entities are doing, but it was watered down at the request of the Utah League of Cities and Towns on the grounds that it could open cities to lawsuits if someone questioned whether any last-minute agenda items were truly “unforseen.”

Campbell and Petersen noted a few bills restricting public access did get through.

SB12, sponsored by Vernal Republican Sen. Kevin Van Tassell, makes Utah Transit Authority trip data a protected record. Van Tassell said it would bar people from using GRAMA to find out if their spouse is cheating on them by using UTA to visit a paramour.

Another bill was HB408, Rep. Paul Ray’s bill requiring people who want copies of mug shots to sign a statement swearing that they won’t post the pictures on websites that charge people to remove them. The Clearfield Republican said it was necessary to protect people who had been arrested and either not charged or had the case dismissed from being haunted by the mug shot.

Campbell said those bills highlight the need for a committee with expertise in open-government issues to review bills and make recommendations.