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.

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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.





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.





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.

 





Utah Gov. Gary Herbert signs bills promoting government transparency

26 03 2013

Gov. Gary Herbert signed two of Sen. Deidre Henderson’s bills that aim to make more public information accessible.

SB77 requires public bodies to post draft meeting minutes on the state’s Public Meeting Notice website within 30 days of a meeting, and an audio recording of a meeting within three days of the meeting. Sen. Kevin Van Tassell, R-Vernal, tried to amend the bill to exempt smaller communities, whom he claimed would view the posting requirement as a hardship, but that change was rejected.

SB283 moves the Utah Transparency Advisory Board from the Department of Finance to the Department of Administrative Services, and directs it to look at ways to make more public records accessible through the Internet. The board already has made financial information, such as salaries, available through the state’s Transparency website.

The Utah Media Coalition, which includes  The Salt Lake Tribune, gave the bill a “pale light” rating due to the requirement that its recommendations be approved by the Legislature. That provision, the coalition noted, could have a chilling effect on the recommendations.





Oklahoma State’s handling of sex offender earns it a ‘Black Hole’ from SPJ

22 03 2013

Oklahoma State University’s decision to not tell police or students about a serial sex offender on campus earned it the national Society of Professional Journalists’ (SPJ) Black Hole award for 2013.

SPJ, the nation’s largest and broadest-based journalism association, gives out the award to government entities that flagrantly violate the public’s right to know. The award was announced Friday morning.

(Disclosure: As a member of SPJ’s national Freedom of Information Committee, I served as one of the judges for the Black Hole award.)

In the case of Oklahoma State, the university had received complaints that a student sexually assaulted several fraternity members. However, instead of calling police or notifying students about a possible sexual predator in their midst, the university quietly handled the issue in a closed-door administrative proceeding.

University officials maintained that they could not disclose information about the assaults because it would violate the Family Educational Rights and Privacy Act (FERPA), the law that was intended to keep academic records such as transcripts and report cards from being disclosed publicly.

The U.S. Department of Education has clearly stated that FERPA cannot be used as an excuse to not notify police about a crime on campus, or to warn students about potential danger.

But emails obtained by the Associated Press revealed that administrators were more concerned about how the scandal would affect the school’s reputation than they were about student privacy.

Oklahoma State was nominated by Frank LoMonte, executive director of the Student Press Law Center.

“It’s really significant that SPJ has recognized a serial abuser of FERPA,” LoMonte said. “This spotlights a problem with FERPA.”

LoMonte noted that Oklahoma State has classified student parking tickets as FERPA-protected documents, allowing it to deny access to journalists looking into parking issues on campus. The university was also censured for classifying a sexual assault as a burglary on a campus crime report required under the Clery Act.

Oklahoma State joins The Wisconsin, Georgia and Utah legislatures, and the Kentucky Cabinet for Health and Family Services as a national Black Hole recipient. Utah received the first-ever national Black Hole award for its passage of HB477, a bill that would have gutted the Government Records Access and Management Act.

Public outcry, along with the national publicity from the award, led the Legislature to repeal HB477.





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.