Are hundreds, perhaps thousands, of state documents being kept "secret" by bureaucrats, the public not even aware they exist?
"We don't know. And that's the problem," says Utah House Speaker Marty Stephens, original author of the state's Government Records and Management Act, a 1992 statute that details the process whereby officials can classify documents secret and citizens can petition to get state documents opened for review.
In an odd twist, several months ago Legislative Auditor General Wayne Welsh classified a major part of a Tax Commission audit he was conducting as "protected." Accordingly, Welsh didn't release that part of the audit, although he privately told legislative leaders about the sensitive material, which he recently characterized as a "road map" for businesses that might seek to avoid paying certain state taxes.
Stephens, R-Farr West, says a "public interest" section of GRAMA was used by leaders to disclose the existence of the secret tax audit — although that action potentially opened leaders up for criminal prosecution. And executive branch GRAMA gatekeepers may not be so public-minded, he added.
While something likely must be done to current law to avoid such problems in the future, Stephens says he doubts lawmakers will allow whole legislative committees to meet in secret to review "protected" documents, much like U.S. House and Senate intelligence committees meet now in private to hear reports about terrorists and other national security matters.
And Stephens wonders if many more such "protected" documents are being secretly kept in the executive branch of state government — documents citizens and the media don't even know about, and so can't appeal, through GRAMA-created hearings, the decision to keep them secret.
It's kind of a Catch-22, explains Stephens: One has to know about the document to appeal its GRAMA classification as secret. But because it is secret, one doesn't know it exists and so can't file an appropriate GRAMA request.
Worse, Stephens says he was warned by legislative counsel Gay Taylor that legislative leaders could be violating the GRAMA's penalties on releasing a protected document if they even talked about the classified part of Welsh's audit in a public meeting.
Stephens said he and other leaders decided to buck Taylor's advice and in a Legislative Management Committee several weeks ago they discussed the issue and asked Taylor to examine ways GRAMA could be amended to deal with the problem.
"It is a class B misdemeanor to 'make public' a protected document," Taylor said. Class B misdemeanors carry fines and jail time. "I took a stringent approach in advising (the leaders) that they shouldn't even talk about it" in a public meeting. "I advised they take the very safest course," she said.
But media attorney and GRAMA expert Jeff Hunt says legislators are way off base.
"There isn't a problem with GRAMA," says Hunt, who has served as legal counsel for the Deseret Morning News and other media outlets on GRAMA questions in the past.
"The problem may be with the (bureaucrat) gatekeeper" who decides to classify a document as "protected" in the first place. Hunt adds that legislators are mistaken in their apparent belief that a state agency can't talk in public about the existence of a "protected" document.
"There is nothing in GRAMA that stops someone from talking about the existence of any document, protected or otherwise. In fact, GRAMA specifically says that all state audits, including legislative audits, must be made public. Although I suppose a part of an audit, like working papers, could be classified as protected," said Hunt.
Following what happened in the legislative branch, Stephens worries there could be thousands of protected documents created by the executive branch of government that no one even knows about.
Not likely, responds Gary Doxey, Gov. Mike Leavitt's staff attorney. Doxey said he has never heard of a protected document whose very existence has been kept secret. Doxey said that to his knowledge no document within the governor's office has been so classified.
"I've never heard of this problem," said Doxey.
But that's not surprising, said Stephens. If a document created by, say, the Department of Environmental Quality, were classified as protected, Leavitt's office probably wouldn't even know it existed in the first place.
While no solutions have been finalized, Stephens says perhaps current law should be changed so that every year each state department be required to publish a registry of protected documents — just listing the names of the documents that have been classified as secret. That way, the public and media would know what documents existed and could, in turn, use GRAMA to request a hearing with state officials who would have to justify keeping the document secret.
E-MAIL: bbjr@desnews.com