Through the years, Utah lawmakers have developed few things that work as well as the State Records Committee. Myriads of regular citizens have used this board to appeal after having been denied access to any of a number of public records.
Sometimes the committee gives them access, and sometimes it denies the request, based on law and public interest, but the overwhelming majority of decisions are sound.
The seven-member committee consists of the director of the Division of Archives and Records Services (or someone he or she designates), a representative of the Utah League of Cities and Towns, two regular citizens, a media member, a records manager from the private sector, and an expert in electronic records and databases. All are volunteers.
Stellar record
This group isn’t perfect, but experts say the records committee has issued 210 rulings over the past 2.5 years. Only one ended up overturned by a court.
Now, in a classic case of a solution in search of a problem, Utah lawmakers are talking about changing this committee, or perhaps scuttling it altogether. There is talk of replacing it with a single administrative law judge, or perhaps keeping the committee but changing its makeup, maybe adding people more inclined toward the government’s desire to keep records secret. A bill is in the works for this legislative session.
It appears that lawmakers are not only ignoring the committee’s stellar record, they are seeking changes after disliking some of the decisions the committee has made.
One of those recent decisions involved repeated requests and efforts KSL initiated to obtain access to the calendar kept by Sean Reyes, who at the time was Utah’s attorney general. The records committee sided with KSL as this was a valid request and check on whether this public official was doing the public’s business. The Third District court agreed. In response, lawmakers passed a bill that made all such calendars private.
Another example concerned the disclosure of “name, image and likeness” agreements Utah’s universities make with athletes. The Deseret News sought these records in 2023, in great measure to protect the Title IX gains made by women athletes and prevent any corruption that can come when financial transactions are done in secret at public universities. The State Records Committee ruled unanimously they should be public. The case went to court. But before a court could rule on the appeal of that decision, lawmakers stepped in and passed a law making such records private.
We strongly urge lawmakers to keep the records committee and promote transparency. Changing laws because you don’t like the correct outcome is not good government and breeds distrust.
Utah media attorney Jeff Hunt said panels such as the State Records Committee are part of the “architecture of open government.”
“Governments hold these records for the public so that they can know what’s going on in their government,” Hunt told us. “If you don’t have government transparency, you don’t have accountability.”
Former Campbell Soup CEO Denise Morrison once said, “The single most important ingredient in the recipe for success is transparency because transparency builds trust.”
This an age in which, for too many, trust has melted into hard cynicism. Utah lawmakers should be working to restore trust in important institutions, not to feed the restless beast of mistrust.
About two-thirds of the cases brought to the committee come from average citizens. These include relatives of murder victims who want to examine case files or hand them over to private investigators. They include parents who want to examine finalists for the job of superintendent at their local school district. The list of possibilities is as long as the list of available records.
The committee offers a low-cost way for them to appeal when they have been denied access to a public record.
Bad ideas
Lawmakers are currently discussing some particularly bad ideas to reorganize the committee and its procedures. One would remove the provision that requires governments to pay court costs after having lost a case they appealed to a court. The only exception would be if one side could prove the other acted in bad faith.
The threat of paying fees incentivizes government officials to be more competent in the way they handle initial requests for records. Removing this would make people reluctant to bring cases to the committee for fear of incurring costs.
Another bad idea would be to remove what is known as the “balancing test” under the state’s Government Records Access and Management Act. This test balances the government’s right to keep things out of the public eye against the public interest that would be served by releasing information, with special consideration for the public’s interest if all other factors are equal.
If the public’s interest is no longer considered a factor, the balance would tilt heavily, perhaps irretrievably, toward government and secrecy.
These changes would take Utah from a state with a model system for adjudicating the transparency of records to one in which government agencies can effectively hide much of what they do with impunity.
For the sake of open government and transparency, we urge Utah lawmakers to reject these changes.