Five vying for public seats on Utah State Transparency Advisory Board

1 08 2013

Members of the Utah State Transparency Advisory Board are sifting through five applications for the two newly created public seats on the board.

The new positions were created when the Legislature passed SB77, Sen. Deidre Henderson’s bill expanding the scope of the board from improving access to financial data to all government records. Henderson, R-Spanish Fork, was recently named as the committee’s chair.

The five are Steven Bagley, general manager of the Utah Department of Transportation’s Lester Wire Library and a technical writer; Christopher Bleak, president and CEO of the Utah Association of Public and Charter Schools and former executive director of the Utah Republican Party; former Rep. Holly Richardson, who is also a member of the State Records Committee; Phillip Windley, former state chief information officer; and Jason Williams, a technology consultant and talk-show host on KVNU.

Richardson, Windley and Williams also served on the GRAMA Working Group, which reviewed the Government Records Access and Management Act (GRAMA) in the wake of the HB477 controversy. Richardson also received Black Hole awards from the the national Society of Professional Journalists and its Utah chapter as part of the 2011 Legislature that passed HB477, the bill that would have gutted GRAMA.

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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.





Gov. Gary Herbert still mulling choices for State Records Committee vacancy

25 06 2013

Gov. Gary Herbert expects to nominate someone to fill the newly created public-member’s seat on the State Records Committee by next week.

Nate McDonald, a Herbert public information officer, said the governor is still awaiting recommendations on the people who have applied for the job.

Four people applied for the position, and the records committee offered a “soft recommendation” for seating Marie Cornwall on the committee. Cornwall, according to her résumé, is an emeritus sociology professor at Brigham Young University who lives in Bountiful.

Committee Chairman Lex Hemphill said the board couldn’t make a stronger recommendation because it was only going on applications and did not interview any of the candidates.

The other applicants were Sarra McGillis, a corrections specialist with the Salt Lake County Sheriff’s Office; James Weightman, director of internal audits at the Salt Lake County Auditor’s Office; and Sheri Bernard, a consultant who had works in health-care information management.

The applicants’ information was obtained through a Government Records Access and Management Act request to the committee. Patricia Smith-Mansfield, the governor’s representative on the committee, did not include the applications in the board’s agenda packet for its June 13 meeting.

“I did not want it to become a public record,” Smith-Mansfield said.

The position was created as part of SB94, Sen. Curt Bramble’s bill that amended the Government Records Access and Management Act (GRAMA). The bill also removed the state auditor’s seat on the body that hears GRAMA appeals and replaced it with a second slot for a member of the public.

Bramble said the change was made at the request of State Auditor John Dougall, who wanted to avoid any conflicts of interest if his office were to audit the committee. Dougall — who as a legislator authored HB477, the bill that gutted GRAMA and was repealed after public outcry in 2011 — fired the auditor’s representative on the committee, Betsy Ross.

Herbert’s previous appointment to the board was Holly Richardson, a conservative blogger and former legislator who supported HB477, as a public member.





Unified Fire Authority, Utah Tax Commission coming before State Records Committee

12 06 2013

A Sandy man wants the State Records Committee to help him find out who accused him of illegal burning.

Larry Hartlerode had filed a request under the Government Records Access and Management Act (GRAMA) for reports from the Unified Fire Authority related to its response to complaints that he was illegally burning in his Sandy yard. Hartlerode’s request was partially granted, with the name of the person who filed the complaint with the department being removed from the record.

“This information should be provided as per the Sixth Amendment of the United States Constitution, specifically the right to confronted with witnesses against him,” Hartlerode wrote in his appeal.

The department said the name could not be released because GRAMA declares people’s addresses and phone numbers as private if the person reasonably expects the information to be kept in confidence. Department officials, in their response, said the person who filed the complaint requested anonymity because of fear of reprisals.

The committee is also hearing another appeal Thursday from Harshad Desai, who asked for copies of personal property audits done in Garfield County between 2001 and 2012, along with the auditors’ names.

The commission said Desai had received some information, such as the number of audits performed, but denied other parts of his request. The commission argued that audit reports are protected information because they involve commercial property.

The commission also argued that its work records are protected, and that it cannot give out auditors’ names in connection to the audits they worked on.

The meeting starts at 9:30 a.m. in the Courtyard Meeting Room at the Utah State Archives. 346 S. Rio Grande St. in Salt Lake City.





bustedmugshots.com owner suing Salt Lake County for jail booking pictures

23 05 2013

The owner of a mug-shot website wants a judge to decide on whether Salt Lake County can invoke copyright to withhold booking photos.

As Mike Gorrell reports, Kyle Prall, owner of bustedmugshots.com, is going to court to overturn the county’s denial of his Government Records Access and Management Act (GRAMA) request for 1,388 mug shots taken between Jan. 11 and Jan. 27. The county claimed the pictures were classified as protected records under the federal Copyright Act.

The move is an effort by the county to keep the mug shots off websites that publish the pictures, only removing them if the person pictured pays a fee. Salt Lake County Sheriff Jim Winder has also removed the pictures from the jail’s website, requiring those who seek them to file a GRAMA request.

Prall’s site offers to remove pictures for free for those who have been acquitted or not charged, while charging others at least $98 to take down their pictures.

Prall argues that if allowed to stand, the copyright argument could be used to undermine open-government laws.”

Federal copyright law also states that government cannot claim copyright for any documents it creates.

Prall claims the county’s move also flies in the face of GRAMA by allowing government to withhold records based on how they plan to use the documents. GRAMA does not look at the requester’s intent when weighing whether a record should be released.

County Council Chairman Steve DeBry declined to comment, citing the 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.