The state’s GRAMA study commission finished its work Wednesday, and, as expected, while there will be some specific suggestions to Gov. Gary Herbert and legislators, several of the major issues swirling around the state’s 20-year-old open records law were not solved.
And, say legislative leaders, it’s unlikely there will be a special session later this year to deal with pressing GRAMA concerns.
What reforms can be agreed upon with the media and open government groups can wait until the 2012 Legislature next January.
Left unresolved is whether public officials, like the part-time 104 lawmakers, should have their text messages, voice mails and other recently-invented electronic communications open to GRAMA requests; whether constituents’ electronic communications should be private in all cases; and whether the burden of costly GRAMA searches should fall totally on those making the requests.
“This was a polarizing issue” when the 25-member GRAMA Working Group was first put together last April, said Lane Beattie, the group’s chairman.
Beattie, a former president of the Utah Senate and current boss of the Salt Lake Chamber of Commerce, told the final meeting of the group in the Capitol that he is glad “we all sat down and discussed this (GRAMA reform) in a meaningful way.”
“Some issues were not resolved,” Beattie said. “And some legislators and citizens may be disappointed” in that.
“We did not craft a bill. But we’ve seen great insight and seen GRAMA as written” is still serving Utahns well. “And now we move forward.”
The final four subcommittee reports on what recommendations could be agreed upon passed the large group unanimously. At a later date, Beattie and committee members will meet with Herbert and legislative leaders to present those ideas.
And so ends – at least for now – the huge political flare-up caused earlier this year when legislators, with most Democrats voting no – passed HB477, a reworking of GRAMA.
The loud media and citizen uproar that immediately followed led Herbert to call a special session, where HB477 was repealed.
Thus, as of now, GRAMA remains unchanged.
In the end, said Beattie and other committee members, it was found that GRAMA is still working pretty well, even after 20 years of minor tweaking and huge changes in electronic and social media evolution.
“We don’t need to change the statute” on technical/computer issues, said Sen. Curt Bramble, R-Provo, who came out against HB477 soon after it’s passage.
“On balance, it is working,” he added. Bramble noted that under current GRAMA interpretation, if a text message on a public official’s smart phone, can be saved, stored and reproduced, it is considered a record.
It can be put into the GRAMA sifting machinery, and through current law determined if it should be released under a proper GRAMA request or classified as “personal” or “private” and so not released.
How to handle text messages was one of the Legislature’s main concerns in passing HB477 in the first place.
In trying to further define how a text message, voice mail or instant messaging should be classified at the outset was problematic, said Bramble.
“We couldn’t agree on language that wouldn’t do more harm than good,” said Bramble. “So we are not going to try to protect text messages” be redefining them as outside of GRAMA’s reach.
“The status quo today, it still works,” he said Wednesday.
Beattie said all of the publicity about GRAMA has done one good thing: Citizens, and especially legislators, have learned that some of the horror stories about what GRAMA is or may quickly become were simply not true.
And fears that really damaging material about individuals and legislators alike – which all believe should not be made public – wouldn’t be made public under GRAMA as it now stands.
In short, said Sen. Pat Jones, D-Holladay, GRAMA is working fine as it is and HB477 was not needed.
In reading the four subcommittee reports one can see that there are some good ideas for change. And committee members said they hope that the Legislature, at some point, will take up those issues.
But those items don’t rise to the level that HB477 proclaimed in serious rewrites of the current law.
A key issue to media representatives and some citizen groups: The committee did not recommend any changes to the broad public/private balancing test encompassed in GRAMA’s intent language.
That basically says all other things being equal, a government agency should err on the side of making a document public.
That, argued legislative attorneys, could mean in future GRAMA decisions some “private” or “personal” emails and other documents could become public when legislators and original GRAMA-drafters didn’t mean for them to be.
Beattie said that legislators themselves have had some of their fears lessened through the committee’s work and hearings.
Said Deseret News editorial page editor Paul Edwards on Wednesday: Government should “err on the side of transparency, and that’s what the law says now. We need to live up to the spirit of the law. There is a serious problem with voting in Utah” – the state’s voter turnout has been dropping during the 2000s.
“We need to create trust in our (public) institutions.”
While this may put part of the committee’s behind-the-scenes findings harshly, what has been learned in this process is that public officials, like legislators, who don’t want their text messages or voice mails GRAMAed should just make sure their personal smart devices can’t store those messages.
As Bramble pointed out, he uses his personal Blackberry for much legislative work. But his smart phone can’t store or reproduce text messages. Maybe an iPhone can, and a public official who uses one may have to respond differently if his communications are GRAMAed.
The subcommittee on new technology recommended that only communications that can be stored and reproduced in whole (with time stamps and so on) should be considered a “record” under GRAMA.
Whether such a message should be made public or held as “personal” or “private” is another test within GRAMA.
Beattie and others pointed out that at early committee hearings they heard all kinds of complaints, or “horror stories,” about a personal email coming from a constituent and that could be made public and find itself on the front page of a local newspaper.
But as media attorney Jeff Hunt, one of the original drafters of the 1992 GRAMA, said time and again, such personal items would not be released under the law now.
In fact, such items are routinely protected under GRAMA.
Still, the committee did not address one of Sen. Stuart Adams’ concerns. The Layton Republican complained loud and hard that simply by requiring legislative staff to shift through all of his emails, his constitutional right of unwarranted search was being infringed.
That could only be solved by exempting legislative emails from GRAMA completely, some lawmakers argued.
However, as Assistant Attorney General Laura Lockhart pointed out, while it may take some time, legislators and other public officials – when they receive an email or other electronic communication in the first place – could decide to just delete it for personal reasons. “I sort my emails myself.”
Finally, some lawmakers wanted electronic communication from constituents just removed from GRAMA. Constituent communications wouldn’t fall under the law; and such emails wouldn’t be searched under any government records request.
But in the end a number of committee members said that was just too great a leap.
While Congress is immune from the federal open government act and several other state legislatures have also exempted themselves from their state’s open records laws, Utah has a 20-year-history of making some Legislative records open.
It may be true that a legislator’s constituents today may believe emails to their lawmakers are private – they are not – several committee members said the answer is not to make those emails secret, but to warn and educate the citizenry.
It is possible, for example, to put up a firewall to any emails coming to lawmakers. Once the email is sent, a message would bounce back to the sender warning that the email could be GRAMAed and made public. The sender would then have to click again to send that email – or they could rewrite it to make it “safer” if it was released or they could just pick up their phone and call their lawmaker.
But, said Rep. John Dougall, R-American Fork, the sponsor of HB477, if they got the lawmaker’s voice mail, they should be warned that the voice mail they left could be GRAMAed, too.
And so, for now, ends the great GRAMA debate.
Several legislative leaders recently told UtahPolicy that it’s unlikely any of the really controversial GRAMA issues will be taken up by the Legislature until after the 2012 elections.