The Utah Constitution states: "Frequent recurrence to fundamental principles is essential to the security of individual rights and the perpetuity of free government."
As a task force now assembles to review Utah's Government Records Access and Management Act (GRAMA), we consider it appropriate to discuss, in some detail, the fundamental principles at stake.
James Madison, often called the father of the Constitution, was the first to elucidate clearly the principle of a compound constitutional republic in Federalist Paper No. 51, an essay written to advocate ratification of the Constitution. In that essay he wrote:
"If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place, oblige it to control itself.
"A dependence on the people is no doubt the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions."
Madison's phrase, "dependence on the people" refers to public opinion as mediated through elections that hold representatives accountable as agents of the people.
His phrase "auxiliary precautions" refers to what are commonly called checks and balances. In the specific historical context of constitutional ratification, he was discussing federalism and the separation of powers. But given his overall theory, "auxiliary precautions" could refer to any institutional arrangement specifically designed to control the abuses of government.
Constitutional rights were some of the first "auxiliary precautions" used in the early American republic. Rights protected citizens from government overreach.
Yale University scholar Stephen Skowronek has shown how elections and rights led American government in the 19th century to organize around competitive political parties and accessible courts.
In the 20th century, however, American government added significantly to its administrative capacity, attempting to regulate everything from air quality to zoning, and to provide for the young (through education) and the old (through income security). Government also increased its capacities in national security and law enforcement. The resultant bureaucracies were often deliberately insulated from elections and litigation.
With this expansion of government's scale and scope, new auxiliary precautions were needed. Recognizing that expanded governmental power could result in both overreach and corruption, Americans passed the Freedom of Information Act at the federal level and other "Sunshine Laws" — such as Utah's GRAMA — at the state level.
Open records laws reinforce the power of the people (Madison's "primary control on the government"). Open records laws rebalance the powers that government accrues through its asymmetrical access to information.
Such rebalancing is particularly important when the accountability provided through competitive elections is truncated in this state through a nominating system that protects vocal minority interests.
Some officials have expressed concern about the costs of complying with open records laws. Such costs should be minimized, consistent with the intent of the law.
But the 19th century economist Frédéric Bastiat taught that when evaluating institutions one should look beyond the seen costs. The "unseen" benefit of these laws is actually to save money. By casting sunshine across government, open records laws increase accountability of public funds and eliminate shadowy corners where graft could live unnoticed. Consequently, investment in resources to enhance compliance with open records laws might be one of the best methods for government to save funds.
Some officials have expressed concern about the challenges new electronic media pose for complying with open records laws. Such challenges should be minimized. But the records that are created from new forms of communication should not be exempted from accountability.
The reasons for open records laws have not diminished since GRAMA was enacted in 1991. If anything they have intensified. Consequently, the effort to remove the intent language from GRAMA was perhaps one of the most misguided aspects of the current HB477 enact and repeal drama.
Utahns need easy and reasonable access to all unrestricted public records. Utahns need government to exercise fair and reasonable records management practices. Utahns need guidelines for disclosure and guidlelines for restrictions that equitably weigh the competing interests and conform to national standards. Utahns need to know that, all things being equal, the presumption is in favor of public access. These needs are specifically identified in GRAMA's legislative intent.
GRAMA represents an important precaution against government abuse from the administrative state. As government scale and scope increases, now through technologically-supported flexibility and networking, the fact that the accompanying technologies might prove harder to account for is not a reason to demand less accountability. Quite the opposite. Given his concerns about government overreach, we think Madison would be proud of the way the people of Utah have stood up for the auxiliary precautions afforded them through GRAMA.