Ten years ago this month, during the last week of the Utah legislative session, I received a late night call from Doug Foxley and Frank Pignanelli, fellow lawyers and legislative gurus, who each year patiently helped me navigate the ins and outs of the Utah Legislature.
For the past 30 years, I have represented the Utah news media advocating for bills that keep government records and meetings open to the public and against those that do not. 2011 had been an uneventful session — some wins, some losses — which is the lot for those of us who work on open government issues.
“They want to meet tomorrow morning at the Little America coffee shop.”
“Sens. Bramble and Valentine.”
“Leadership just released a bill called HB477.”
I read it in disbelief. The bill would make sweeping changes to Utah’s premier sunshine in government law — the Government Records Access and Management Act. It would exempt legislators’ text messages from the law, regardless of whether they concerned the conduct of the public’s business; allow government to charge prohibitive fees to access government records; and rip out the beating heart of the law: language stating that government records are presumed to be public and that the burden is on government to show why records should not be disclosed.
In short, the bill would gut GRAMA.
For me, this was personal. As a young lawyer, I helped give birth to GRAMA. Representing the Utah news media along with attorney Kate Lahey, a master strategist and negotiator, we worked with a coalition of public and private stakeholders to craft one of the best open records laws in the country. The effort took more than three years but was well worth it. Sunshine laws are vital to a democratic form of government. They keep government accessible and accountable to those whom it serves — we, the people.
Since GRAMA was enacted, however, open government advocates in Utah have almost always been playing defense, fighting constant attempts by government to chip away at GRAMA through the creation of new exceptions to public access. In 2011, there were some 160 exceptions; today there are more than 250 scattered through GRAMA and other state statutes.
But HB477 was not another chip, it was an existential threat. So I showed up for breakfast at the Little America along with friend and fellow media attorney Michael O’Brien and listened politely to Sens. Curtis Bramble and John Valentine. We knew them. They were open government supporters; they had no enthusiasm for HB477. They were there simply as a professional courtesy to explain that legislative leadership, poorly advised, had decided this bill was necessary. There would be no negotiation, no amendments, no robust debate. This was a freight train screaming down the tracks, and those who got in the way would be run over.
But why? Well ... you may remember the infamous feral cat bill. That was the bill that would allow Utahns to shoot feral cats. That, along with other choice pieces of legislation, had resulted in some not so flattering local and national media coverage of the Utah Legislature. It had also spurred GRAMA requests seeking to divine the origins of such legislative masterpieces.
So legislative leaders decided it was time to send a message to the press, wall off their potentially embarrassing emails and text messages, and roll back public access. And so they did. Drafted in secret, with zero public input, the bill was released, passed in both the House and Senate, and signed by the governor — all in less than 72 hours. Talk about being railroaded.
But you may also remember the rest of the story. Thanks to a massive public backlash, including protests, rallies and widespread outrage not just over the terrible substance of the bill but the ham-handed way it was shoved down the public’s throat, legislators and the governor beat a hasty retreat. Bowing to the will of the people, the governor called a special session of the Legislature and HB477 was swiftly repealed.
So 10 years later, what are the lessons of HB477? For one, as the bill’s backers found out to their chagrin, GRAMA is not about the news media. It’s about the public. And it turns out the public cares very much about keeping government open, transparent and accountable to the people it serves. And that means the public cares about GRAMA.
Second, the battle for open government is never over. Just this legislative session, there were bills to conceal the names of zoning violators from the public, close the search process for state college and university presidents, and reduce access to meetings of the Board of Pardons and Parole. Fortunately, those bills were defeated or amended to preserve public access. But other bills reducing public access to law enforcement records passed. Keeping government open and accountable depends on a public that is engaged and vigilant.
Finally, bad process produces bad results. HB477 deserved its fate not only because it was bad public policy, but because it was the product of a terrible process. Public policy works best when all stakeholders have a seat at the table and the public has a meaningful opportunity to participate and voice concerns. Bills closing public access to government records and meetings deserve an especially robust and rigorous public vetting.
HB477 was a clarion call to protect Utah’s sunshine laws. And the people responded. As the United States Supreme Court once observed: “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.”
Jeffrey Hunt is a First Amendment and media law attorney at Parr Brown Gee & Loveless.