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My view: HB477 violates First Amendment

By Joe Bauman

Published: Friday, March 18 2011 12:00 a.m. MDT

The words of the U.S. Constitution's First Amendment are direct and easy to understand: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

Members of the Legislature need to take that principle to heart, as it affirms the rights of citizens of this state as much as it does those of any other.

State lawmakers have no power to abridge any constitutional rights. The Supremacy Clause mandates that the federal Constitution is the supreme law of the land. Any freedom outlined in this great foundation document applies across the board: Nevada could not ban freedom of religion, Idaho could not do away with freedom to assemble and Utah can't abridge freedom of the press.

But House Bill 477, passed by the recent Legislature and signed by Gov. Gary Herbert, specifically abridges freedom of the press. Examine just one part, Section 19, and that becomes clear, even without considering other onerous sections.

Just as the expiring law does now, the new version of the Government Records Access and Management Act exempts from disclosure to the press such material as civil, criminal or administrative enforcement records; reports that would identify the appraisal value of property; and a host of other types of information. They all "are protected if properly classified by a governmental entity." Section 19, which applies to legislative material, presently also exempts from disclosure the following:

"… personal files of a state legislator, including personal correspondence to or from a member of the Legislature …."

HB477 changed this section. It specifies a new class of information that can no longer be scrutinized. The new law exempts, "… a record related to the performance of a legislator's official governmental duties that is prepared, received, or retained by a legislator …."

A personal communication — such as between a senator's spouse and the senator, reminding the senator to stop at the grocery store on the way home — always has been off-limits. Now, in addition to that restriction, nobody can discover any communication to or from a legislator related to official duties (other than such routine material as notices of meetings).

Under the bill set to expire in three and a half months, a reporter could demand an e-mail that was sent from a lobbyist to a legislator offering some favor in exchange for a vote, and the legislator would have to turn it over. But as of July 1, that e-mail would be a record "related to the performance of a legislator's official governmental duties," and would not be turned over. It's related, however nefariously.

A valid exercise of freedom has been stripped away, with the actions of the majority of the Legislature as approved by the governor.

An argument can be made that freedom of the press means the right to publish freely, not to gather news. Even if that were true, HB477 damages the public's right to know. Regardless of technicalities, the spirit of the First Amendments should be respected.

The heart of the Founders' vision is that freedom of information is a necessity in a free country. Without the ability to fully weigh all sides of an issue, without the exposure of sneaky influences, citizens can't make informed decisions.

Blinding us to the machinations of special interests is despotism that we citizens will not tolerate.

Joe Bauman is a former Deseret News reporter, now retired.

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