8/7/2019 Rep. Kraig Powell, R-Heber City, on HB477

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03/08/11

Keeping House

By Rep. Kraig Powell

The annual session of the Utah Legislature will end Thursday at midnight.Final adjustments to the state budget will be enacted this week. One of the main issues still

pending is a new proposal to fund charter schools through a larger portion of local property taxes. Also

under consideration is an amendment to the Utah Constitution that would prohibit the state fromspending any more in its budget each year than it spent in the previous year, adjusted for inflation and

population growth, regardless of whether the economy or tax revenues improve.

Although there are many issues I could address in this weeks column, I think it is important

that I discuss a bill passed by the House and Senate this week regarding access to government records.As you may have heard, the news media has been highly critical of the Legislatures action on

this bill. I want to explain exactly what the bill does and why I voted for it.

House Bill 477 was sponsored by Rep. John Dougall, who has been a leading advocate oftransparency in government for many years. Here are the main provisions of the bill:

The bill specifies that voicemails, text messages, instant messages and video chats are not

government records. E-mails are considered government records. The bill allows state or local government to charge a person requesting a government record

the actual costs of producing the record, including charging for any time spent researching and

compiling the information into the format requested by the person.The amount of the charge must be based on the wage of the lowest-paid person at the agency

who can perform the task. The agency is not allowed to charge any amount for producing a single,

readily-identifiable record, or for the first 15 minutes of time spent in filling any records request.

The bill leaves in place the standard of 10 business days that an agency has to fill a recordsrequest, but adds that this time period may be extended if the request requires review or compiling of a

large number of documents.

The bill exempts from disclosure any correspondence between a state legislator and citizensregarding the performance of the legislators duties.

The bill exempts from disclosure any correspondence between a state legislator and another

legislator or the Legislatures employed staff. The bill exempts from disclosure any internal communications or working papers of the

governor.

The bill clarifies that the State Records Committee administers only records of the executive

branch and local governments, not records of the legislative branch. The bill requires courts to balance the interests of privacy and disclosure when a records

decision is appealed, and to release the record only if the preponderance of evidence favors disclosure.

The bill allows the Legislature to determine the requirements applicable to its own records,including classification of records categories, time to respond to a records request, and the amounts of

fees to be charged.

Finally, the bill removes the preamble to the Government Records Access Management Act(GRAMA) that sets forth the legislative intent of the open records law. This is consistent with a recent

effort by the Legislature to remove intent language in statutes in order to simplify judicial

interpretation of statutes.The reasons I voted for this bill are as follows:

1. I agree that taxpayers should not be required to pay for the expense of preparing voluminous

records requests and that those expenses should be paid by the person making the request.

8/7/2019 Rep. Kraig Powell, R-Heber City, on HB477

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2. I believe that, under the current state of technology, text messages are similar to phone calls,

which have never been subject to government records requests. If a text message is used in a manner

more like an e-mail or letter, however, then I believe it should be subject to disclosure.

3. I believe that government employees should not be paid overtime to fill a voluminous recordsrequest but instead should complete the request during normal business hours, even if this delays

completion of the task.

4. I believe that many citizens have an expectation of privacy when communicating anindividual message to their elected legislators.

5. I believe that the principle of separation of powers requires that the Legislature establish and

administer the rules that will govern its own records.6. I believe that recent court decisions have unjustifiably expanded GRAMA based on its intent

language, at the expense of individual citizens privacy.

7. I believe that this bill will still allow 90 percent of all records requests to be promptly filled,

while requiring further appropriate inquiry into the more complicated 10 percent of requests.8. I believe that Utah has one of the most transparent and informative systems of access to

government records in the country, and I believe that will not be substantially changed by this new law.

9. I believe that certain citizens and media outlets have improperly made broad requests forthousands of government documents instead of narrowly focusing their request on a single document or

group of documents.

Finally, I would like to comment on the manner in which this legislation was passed by theSenate and the House. I was first informed of this bill on Tuesday afternoon by House leadership in a

closed meeting of all Republican representatives. I first read the bill on Wednesday and the bill came

up for a vote in the House on Thursday. All 58 Republican representatives, including me, voted for thebill. Three Democrats voted yes and 12 Democrats voted no.

I believe it would have been better to have much more discussion and debate on the bill. I

believe that the bill would not have passed in this exact version if it had been subjected to scrutiny for

several weeks by the media and the public.I also believe a legislator sometimes needs to cooperate with decisions that have been made by

legislative leadership, especially late in the session, in order to preserve the legislators ability to pass

important pending bills, the fate of which rests in the hands of legislative leaders.I will write one final column next week to summarize the significant items of this years

session.

As always, please feel free to contact me to express your thoughts pertaining to any legislativematters. My e-mail address is kraigpowell@utah.gov and my phone number is 435-657-0185.

Rep. Kraig Powell serves state House District 54, which encompasses Wasatch and Duchesnecounties and a small segment of Uintah County.