With further study and possible court challenges, HB477 might not bury GRAMA
SALT LAKE CITY — The Legislature's attempt to shield many government records from public access is almost certain to become law, having passed with enough support to override a veto that few think will come.
But it might not be long before part or all of the bill is challenged in court.
The Senate's approval of HB477 sent the bill to Gov. Gary Herbert on Friday, just two days after it was unveiled. The governor did not take a position but said he would consider it thoroughly before acting. The bill would become effective immediately with his signature, just in time to mask much of the Legislature's deliberations on redistricting, the drawing of electoral boundaries that takes place every 10 years.
In what looked like a lost cause, opponents begged Herbert to block the sweeping changes to the Government Records Access and Management Act, saying it would promote government secrecy. An anti-HB477 page on Facebook garnered hundreds of supporters Saturday.
Bill sponsor Sen. Lyle Hillyard, R-Logan, promised that legislators would reconsider the changes in an interim study committee after the legislative session. He said representatives of the media and others who have strongly opposed the changes would have a chance to recommend further revisions in those meetings.
However, GRAMA will be just one of many study items. The Legislature assigned more than 200 topics to interim committees last year.
Asked Friday why no one had a chance to help legislators draft the proposed changes before they popped up in the last week of the session, Senate President Michael Waddoups said they were discussed "extensively" with media attorneys — early Friday morning in a meeting with two senators.
HB477 would exempt several forms of electronic communication, including text messages, from GRAMA. It would also keep many legislative records hidden, increase fees for GRAMA requests and remove language that favors openness.
Hillyard said that "intent language" had allowed courts to determine what was public or not, citing a case in which the Deseret News sued Salt Lake County to obtain an investigative report on allegations of sexual harassment by a top employee in the county clerk's office.
The Utah Supreme Court, partially relying on the intent language, ruled in 2008 that there was a "legitimate public interest in releasing the report" and declared it public.
Betsy Ross, chair of the State Records Committee, which rules on appeals of GRAMA denials, said the committee commonly uses the intent language when it's unclear whether a record is public. HB477 also shifts the burden of proving that a record should be released from the government to the public.
With the changes set to become effective with a stroke of Herbert's pen, challenges could be quickly forthcoming. Several media outlets have filed GRAMA requests since Wednesday, fearing they would soon be out of bounds. It's unclear whether those requests still must be honored if and when HB477 takes effect.
State Records Committee decisions can be appealed in court, but according to Jeff Hunt, an attorney for the Utah Media Coalition, court battles over individual requests would have less impact than a direct challenge on whether HB477 violates constitutional free-press guarantees. He said a lawsuit seeking to block the entire law could be filed in either state or federal court.
"The first thing is to try to get Gov. Herbert not to sign it, to let him know about the shocking lack of public process and the far-reaching negative impact on the public's right to know," Hunt said. If that does not work, he said, "What we want to do is see if there's a basis for challenging the statute as a whole... We'll get in deeper if it actually becomes law to looking at legal options for striking it down."
The Utah chapter of the Society of Professional Journalists indicated it was considering a legal challenge as well.
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