How fees, growing restrictions are reshaping Utah's government records law

SALT LAKE CITY — Public interest in government operations is at an all-time high.

Here in Utah, the Government Records Access and Management Act, or GRAMA, allows anyone to access public records from government entities.

With that increased interest, KSL Investigators found some citizens frustrated by government agencies' pushback over public records.

Fighting for transparency

Being a whistleblower cost Dr. Judith Zimmerman her job as a University of Utah researcher.

"Rather than trying to solve the issues I was bringing to light, they were just trying to cover them up," said Zimmerman.

In 2012, she was fired after notifying the university that identifiable information about children with autism might have been shared improperly. Zimmerman sued and in October 2021, a jury awarded her $760,000 in damages.

Pertinent to her case was a contract she believed was forged that was allowing unethical data sharing. Zimmerman filed a GRAMA request with the university for the original contract.

"I was looking for records surrounding that data sharing agreement for eight years," said Zimmerman. "The university claimed not to have an original."

Zimmerman said it wasn't until the middle of her trial against the university for breach of contract that the contract, which she was told didn't exist, was released to the Utah Attorney General's Office.

"The fact that they withheld the contract for eight years and didn't turn it over until the middle of trial was very disturbing."

Zimmerman isn't alone in her frustrations with public records availability. Carl Fisher, executive director of Save Our Canyons, told KSL Investigators his organization filed a GRAMA request with the Utah Department of Transportation in November 2020.

"The State of Utah is leading an environmental impact study for Little Cottonwood Canyon. UDOT is kind of the lead agency," said Fisher. "We wanted access to some of the information about the process that UDOT is running on behalf of Federal Highways to help people understand what's going on on the governmental side of the environmental impact study process."

Fisher said the group's request to UDOT initially went unanswered, amounting to a denial by default, which then preceded months of delays.

More requests, more records becoming private

Utah attorney Jeff Hunt is an expert in First Amendment issues and helped draft GRAMA decades ago.

He has watched as Utah's Legislature continues to close off more government records from public access.

"Every session, year after year, they create more exceptions to public access to records," Hunt explained. "It's really death by a thousand cuts. They just keep chipping away at the access."

In recent years, the Legislature has exempted certain body-worn camera footage from police officers from public record and marked mugshots as private, unless the individual is convicted of the crime.

Currently, there are 83 exemptions to GRAMA laws in which public records are classified as protected.

Rosemary Cundiff is Utah's current — and first — State Records Ombudsman, hired when the position was created in 2012. She concurs with Hunt's assessment of decreased visibility.

"I remember when there were 51 different categories of protected records," said Cundiff. "I think every year, something new is added to the list of protected records."

It's Cundiff's job to act as an intermediary between record seekers and record holders when there's a disagreement.

She mediates disputes and provides general guidance for those seeking records and those tasked with providing them.

"I think there's gradually a higher expectation on the part of the public to have the information available to them, and so it's challenging for government to be able to keep up with that," she said.

Annual reports from Cundiff's office show she's been busier than ever, seeing a nearly 318% increase in consultations with the Ombudsman between 2012 and 2021.

During fiscal year 2020-2021, Cundiff provided 1,034 consultations, 866 of which were with members of the general public. The media or other organizations like government agencies were involved in 168 consultations.

Even when a record is classified as public under GRAMA, government agencies have the power to charge citizens for access.

"Fees can be just as much a barrier to transparency and access as an outright denial of access to the record," said Hunt.

Current law indicates fees cannot exceed the hourly salary of the lowest-paid employee capable of fulfilling the records request. More extensive requests can mean hundreds, if not thousands of dollars in fees to receive the records.

Enforcing transparency

Utahns who don't agree with GRAMA denials can appeal to the State Records Committee, which has the authority to order a government agency to turn over the records.

Just like the Ombudsman's office, they've been increasingly busy, seeing a 43% jump in appeal hearings from 2019 to 2020.

If an appeal is granted to a record requestor, and the record holder does not comply, there are some punishments: a $500 per day fine until the record is produced, or a notice of non-compliance sent to the governor's office.

In the last five years, neither of those options had been exercised, with records committee member Tom Haraldsen commenting in the December meeting, "part of me clearly does not want the (State Records Committee) to be in the business of deciding how to levy fines. We have enough issues on our plate."

That changed when Save Our Canyons appealed UDOT's denial to the committee.

At a hearing in October 2021, the State Records Committee agreed that Save Our Canyons should have the documents and ordered UDOT to provide them. At the time of our interview in December 2021, the records still had not been produced.

"We still don't have a complete record," Fisher told us then. "It seems to me that GRAMA isn't really working for citizens."

At that same December meeting of the SRC, members decided to send a letter of non-compliance regarding the UDOT request.

About an hour and 20 minutes after the SRC delivered the notice via email, the Utah Attorney General's Office sent the requested records to Fisher.

"You really have to fight for records, has been our experience," said Fisher.

UDOT spokesman John Gleason told KSL Investigators the department handed over the requested information months earlier and that the conflict was over the type of file format the agency would be willing to provide, rather than the actual records.

"We want to be an open, transparent agency," he said. "And that's, that's always been important to us and it's something we'll continue to strive to be."

Gleason said Save Our Canyons' appeal to the records committee marked the first time in several years that UDOT has pushed back against a GRAMA request during a hearing in front of the committee. He also said it took some time to gather what Save Our Canyons had requested.

"It was complex and required gathering more than 5,000 pages from multiple sources," he explained.

Fisher maintains some records were withheld until immediately after the State Records Committee sent the notice of non-compliance to the governor. That day, he said the group received "at least 100 pages of totally new information that we'd never seen before."

Gleason said if any records were previously withheld, it was not intentional.

In the event that a record is still not delivered, or the committee denies an appeal, record seekers can take the third and most expensive route: a lawsuit.

It's an action KSL Investigators took in July 2020, when the Utah County Health Department denied records related to businesses not following COVID-19 protocols, leading to outbreaks of the disease.

What's next for GRAMA

Cundiff told KSL Investigators that despite flaws, the GRAMA process is better than what's available in many other states.

"I think for the most part, it works," Cundiff said. "There's lots of states where court is really the only option. And so I just think that GRAMA, it's as good as it gets, really."

For the most part, she says, government agencies do their best to follow the law and provide records. Even when disputes arise, they can be worked out in mediation with her office.

"Sometimes, there's just miscommunication," said Cundiff. "We can sometimes work out compromises, too, like for example, maybe government would maybe let you look at the record but not take a copy. Or if there is an investigation, maybe we can understand when the investigation would be over and then you can have a copy at that point."

But more changes may be on the horizon.

Multiple bills under debate in the 2022 General Session of the Utah Legislature would further tweak GRAMA laws and exemptions, including:

• HB57 Government Records Access Amendments: create an honor system when it comes to accessing a public officials texts or emails on a private account — by making that person responsible for turning over their own records.
• HB96 Government Records Fee Amendments: removes provision allowing first 15 minutes of response time to a request for free if a records seeker has filed other requests within 10 days.
• SB142 State Records Committee Amendments: modifies membership of SRC to include individuals representing counties and law enforcement.

Lawmakers have also signaled they plan to introduce legislation this session that would protect Garrity statements, which are the internal administrative interviews officers give in cases such as fatal shootings.

Hunt urged Utahns to pay close attention to these legislative moves.

"It needs to be the media's job and the public's job to remind them that this is an important issue," said Hunt. "They should be opening records and making government more transparent, more accountable. Not less."

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