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SPJ 'honors' Utah governor for closing records

Published: Monday, March 14 2011 1:08 p.m. MDT

Gov. Gary Herbert signed into law HB477, which will likely make public-records requests more difficult to obtain.

Brian Nicholson, El Observador de Utah

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SALT LAKE CITY — Utah's restrictive new open records law has brought the state national recognition for reducing public access to government.

The national Society of Professional Journalists plans to present Gov. Gary Herbert with a first-ever Black Hole award Wednesday to highlight the law, which increases fees for records requests and makes text messages private.

David Cuillier, SPJ's Freedom of Information Committee chief and a journalism professor at the University of Arizona, said he'll try to present the award to Herbert on Wednesday.

The award, Cuillier said, is part of Sunshine Week, an annual initiative begun in 2002 to promote greater transparency in government.

Nominations were gathered from around the country, but Cuillier said "there was no question" the award should go to Herbert as the chief executive of the state.

Herbert signed HB477 last week. It passed the Legislature less than a week after being introduced.

In a statement, Herbert's spokeswoman Ally Isom said the governor forced the Legislature to delay the effective date until July 1. Before then, a committee of government officials, media representatives and citizen activists will review the law.

Herbert has promised a special session in June to amend the law based on the committee recommendations.

"This is unquestionably undeserved," Isom said. "The Legislature first passed this bill with a veto-proof majority. Were it not for the governor's action, the original HB477 would take effect. What the governor signed was an amended HB477 and, because of his leadership, we now have a process to remedy HB477."

The law restricts access to most electronic communications by government officials, allows state agencies to charge higher costs to answer records requests and places the burden of proof about whether a record is public on the person asking to see the record.

"The cards are stacked against citizens so badly that almost everything can be kept private," Cuillier said. "They can say no to every request, and there's nothing that can be done."

Legislative leaders and other supporters of the changes say the current law was written 20 years ago, when such informal modes of communication as text messaging and e-mail were not widely used. Leaders also point to the excessive time required for complicated requests that multiple legislators described as "fishing expeditions."

The changes don't become effective until July 1.

Mark Caramanica, the Freedom of Information director for the Virginia-based Reporters Committee for Freedom of the Press, said the group took notice because the new law is "so egregious and out-of-balance."

No other state makes text messages from a government cell phone private, which Utah's law does, Caramanica said. Also, the fee provisions — which allow agencies to charge for things such as "overhead" — potentially creates an insurmountable financial barrier to open government.

"It disrupts, even blows up, the fee structure that is supposed to encourage public access to records," he said.

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