It seems like everyone has been weighing in against H.B. 477, John Dougall’s bill (recently passed the House and Senate) officially titled Government Records Amendments, but more colloquially referred to by the media ’round these parts as The GRAMA Death Blow. According to most of the editorials I’ve read, the bill guts GRAMA by exempting certain types of communications from the definition of a government “record,” and by increasing the costs to obtain records that are available. Doesn’t sound particularly good, does it?
But it’s probably worthwhile to engage in the tedious process of statutory review to determine exactly what it is that this bill really does. After all, the current hue and cry over H.B. 477 is coming to us (as most things do) through the filter of the Utah news media. And let’s be honest: GRAMA is often the means by which journalistic careers are made. Since it never hurts to be a bit skeptical of the information you get from someone who has a dog in the fight you’re betting on, I decided to add my voice to the many already weighing in on the issue. With that said, let’s dive in.
What is GRAMA, anyway?
A good place to start is with a basic understanding of GRAMA itself. The official name of the law is the Government Records Access and Management Act, and it’s codified at Utah Code Ann. § 63G-2-101 et seq. But for those less legally inclined, GRAMA is a law that allows citizens to request the disclosure of certain records from the state government that would otherwise remain in agency files, unavailable to Jon Q. Public. It doesn’t take much imagination to see why GRAMA is the darling of the media nursery, and often the proverbial thorn in the side of our esteemed public officials. Although it has helped launch plenty of “gotcha” pieces, the principle underlying GRAMA is less about “gotcha” stories and more about transparency and providing a means for citizens to responsibly and intelligently exercise their right to check their government through elections. With that inadequate introduction out of the way, let’s now turn to H.B. 477 and see what it does to GRAMA as currently constituted.
How would H.B. 477 Change GRAMA?
As I read H.B. 477, the bill would change GRAMA in four significant ways. First, it would except whole categories of (primarily electronic) communications from the statutory definition of a “record.” Second, it would broaden the statutory definition of “protected records.” Third, it would change the fee structure for GRAMA requests. And fourth, it would alter the burden of proof for a challenge to a denial of a GRAMA request. I’ll go through each of these four items in turn.
Exempting Electronic Communications from Definition of a Government Record
The real meat of H.B. 477 comes through its narrowing of the definition of a government “record.” H.B. 477 would exempt the following categories of communications from the statutory definition of a “record” (more on the hidden significance of this later):
- Instant messages (think Gmail chat), unless the instant messages were exchanged in what amounts to a public meeting protected under Utah’s Open and Public Meetings Act (Utah Code Ann. § 52-4-101 et seq.). A public meeting includes any meeting a an “administrative, advisory, executive, or legislative body of the state” convened “for the purpose of discussing, receiving comments from the public about, or acting upon a matter over which the public body has jurisdiction or advisory power.” So, in the event that a legislative committee wanted to hold a committee meeting to discuss specific legislation by instant message, the messages exchanged in such a meeting would still qualify as “records” under the H.B. 477 version of GRAMA. But, short of that, any other instant messages exchanged by legislators would probably not.
- A video chat, subject to the same caveats regarding public meetings.
- Text messages, no matter what context in which they are exchanged.
- Notes prepared by government officers or employees for the officer’s or employee’s own reference (it doesn’t matter if the subject matter of the note is a matter of public concern).
- Any communication by a governmental officer or employee made in a capacity other than that person’s official capacity (so, a legislator’s communications regarding his private sector employment, for example, would not be a “record” under the H.B. 477 version of GRAMA).
Given the increasing prevalence of electronic communication in public and private life, particularly through instant and text messaging, the scope of the exemptions carved out by H.B. 477 is really quite breathtaking. H.B. 477 basically extends an invitation to legislators to text message anything they want kept private, as those communications are excluded from GRAMA without a caveat. This should cause all who value transparency in the legislative process significant concern.
But’s there’s an additional, and hidden significance, to these exclusions. This significance arises from the fact that H.B. 477 chooses to exclude the above types of communications from the definition of a government “record” rather than simply classifying them as “protected records” under Utah Code Ann. § 63G-2-305. Only “records” are subject to GRAMA (it is, after all the Government Records Access and Management Act). Disclosure of non-records cannot be compelled. But disclosure of “protected records,” while normally unavailable, may be compelled if “interests favoring access outweigh interests favoring restriction of access.” Utah Code Ann. § 63G-2-401(6). Because “records” cannot by the subject of any GRAMA request at all, H.B. 477 sidesteps possibility of compelled disclosure altogether as to instant and text messages by choosing to exempt them from the definition of government “record” rather than simply classifying them as “protected records.” Thus, the privacy of these electronic communications is absolute — even if there is a significant public interest in disclosure relative to a slight privacy interest on behalf of the communicators.
Broadening the Definition of Protected Records
H.B. 477 would also broaden the definition of “protected records” in the following significant ways:
- It would protect from disclosure records prepared by a government entity that would not be available for discovery under judicial rules when the records are prepared in reasonable anticipation of litigation (previously only records prepared solely in anticipation of litigation were protected).
- It would protect from disclosure any record concerning a legislator’s job performance when the record is either prepared, received, or retained by the legislator (previously only a legislator’s personal files regarding his job performance were protected).
- It would protect from disclosure any records in the custody of the Office of Legislative Research and General Counsel (these are the attorneys who are employed by the state to draft bills) relating to any bill that has not been introduced or made public by the legislator (currently, the law only protects bills that the legislator has not “elected to support,” which seems something short of “introduced”).
- It would protect from disclosure a legislator’s requests to the Office of Legislative Research and General Counsel of the Office of Legislative Fiscal Analysts, and any responses received to those requests (previously only research requests were protected).
- It would protect from disclosure all records prepared, received, or retained by the governor’s office regarding contemplated policies or courses of action (previously these were only protected until after the governor had made the policies or course of action public, now they are protected absolutely).
- It would protect from disclosure any data and working papers from the Office of Legislative Fiscal Analyst regarding fiscal notes for legislation that has not yet been passed (this is altogether new).
Changes to GRAMA’s Fee Structure
The third major change H.B. 477 would make to GRAMA is to its fee structure provisions. GRAMA currently provides that the government may charge a reasonable fee to cover its actual cost in providing a record. Utah Code Ann. § 63G-2-203(1). H.B. 477 would keep that language, but would also allow the government to charge for “processing” a GRAMA request (presumably whether or not that request was granted), and include overhead and administrative costs in any fee assessed. H.B. 477 would also provide for an additional fee that the government could charge for the following services performed “in relation to a records request”:
- Copying, duplication, and transmission services.
- Actual labor costs of providing GRAMA records in a form other than that normally used by the government.
- Actual costs of labor for organization and classification in response to a “large” GRAMA requests.
- Actual costs of labor for organization and classification of a GRAMA request requiring the production of a “substantial” number of records.
- For a GRAMA request that requires significant segregating, redacting, or editing, the actual costs of labor for the segregating, redacting, or editing.
- Actual costs of legal review for a GRAMA request that requires legal review.
- Actual costs of technical assistance for a GRAMA request that requires technical assistance.
- The hourly pay rate of a person performing a service in response to a GRAMA request, whether that person is a state employee or a professional contracted by the state.
Changes in the Burden of Proof in Challenging Denial of a GRAMA Request
This is a change that may have floated under the radar for a lot of people, but stood out to me as an attorney who regularly makes (and responds to) arguments regarding the burden of proof on any a number of legal issues. As noted above, GRAMA contains an exception allowing for the disclosure of protected records whenever the public interest in disclosure outweighed the interests favoring non-disclosure. While that basic standard would remain after H.B. 477, now the burden of proof to establish the supremacy of the public interest would be imposed on the individual challenging the denial of their GRAMA request. They would have to prove, by a preponderance of the evidence (i.e. that it is more likely than not) that the public interest in disclosure outweighs the interests favoring non-disclosure. Although this has rightly not been the major focus on the opposition to H.B. 477, it is another roadblock that H.B. 477 throws up against disclosure of records subject to GRAMA. And, in the event that a GRAMA request does become the subject of litigation, any attorney will tell you that allocation of the burden of proof on a particular issue is very significant.
Conclusion — or What Would Joe Biden Say?
So, has the media overblown H.B. 477? Hardly. This is, to borrow a very awkward turn of phrase from our illustrious Vice President, a “big #%*$&* deal.” H.B. 477 creates a privileged class of electronic communications for our “public” representatives — something akin to an attorney-client privilege for communications by and between legislators. Sometimes protection of communications from disclosure is necessary to enable people to do their jobs effectively (e.g., confidential communications between an attorney and his or her client). But this type of protection is not necessary in legislative politics, except in the most narrow circumstances.
It may very well be uncomfortable for legislators to feel like they are not to be able to communicate as freely as they would like to, and you could see why H.B. 477 would be attractive to them. But a substantial degree of potential public oversight is the price you pay for becoming politically involved. Represented citizens have a right not only want to see what was done, but to be able to obtain a glimpse behind the scenes and see the how, why, where, and by whom as well. In my opinion, there is no good reason to support H.B. 477, and plenty of really good reasons to oppose it.
Down with H.B. 477, either by executive veto (too late for that now) or subsequent legislative action.