Whose rights are more important, those of the accused or the reporters covering their trials? As with most of the questions raised by the Government Records Access and Management Act, the answer depends on whom you ask.
Representatives of the Utah attorney general's office and other government agencies want to protect the accused's right to a fair trial. Representatives of the media and other public interests want to protect freedom of the press.None of them could agree Monday on how to word a provision in the act that would prevent the release of government records that could jeopardize a fair trial.
The act passed by the 1991 Legislature to spell out what government information Utahns have a right to know states that records can be kept secret only if their release "would" deprive a person of a right to a fair trial.
The attorney general's office wants to replace the word "would" with the phrase "reasonably could be expected to." Utah prosecutors want to go further, adding "create a danger of" after the replacement phrase.
These changes - which are among hundreds proposed by the attorney general's office and other government agencies to the nearly 50-page law - go too far for representatives of the media and other public interests.
"You absolutely do have to have balance," said Kate Lahey, a University of Utah law school professor and attorney for the Society of Professional Journalists.
Lahey said that while the Sixth Amendment protection of a fair trial is important, so is the First Amendment protection of a free press. She said adding both the "reasonably" and "danger" phrases would tip the balance.
But John Clark, counsel to the attorney general, said government "should not be niggardly" when it comes to protecting the right of the accused to a fair trial.
Clark said if someone is denied that right, any conviction would be overturned. That, he said, is why the two constitutional rights should not be treated equally in the law.
The argument wasn't settled Monday and may not be during the next two meetings scheduled between the two sides. Those meetings are set for Thursday and Friday.
Besides the constitutional issue, they also disagree on a section that would keep secret the government records "circulated for the purpose of decisionmaking" if disclosure "would substantially inhibit the flow of ideas."
Lahey said that without access to the written information used to make decisions, it would be almost impossible for the public to have any effect on government.
Clark said the section was suggested "more tentatively" than any other change proposed by the attorney general's office so that the question of whether to make such documents public would be debated.
The concern about allowing access, he said, is that government employees "are going to be afraid to put their creative ideas on paper. Therefore, people in government won't be able to affect government."
Clark said the decision about whether to leave the section in should be left up to Gov. Norm Bangerter. Lahey and others on both sides of the issue agreed with Clark's suggestion that they meet with the governor.
"We are not wedded to this thing. We are not, in fact, going to push this if the governor's office doesn't want to pursue it," Clark said.