Some Perspective on HB477
If the Utah Legislature was looking for a way to unite people across the political spectrum, HB477 was a great way to do it. Unfortunately for them, it united everyone against the Legislature in a rather loud cacophony, present company included. The bill went from introduced to passed by both houses in just three days with the stipulation that it take effect as soon as it’s signed instead of after the normal sixty days. This alone prompted a strong negative reaction, never mind what the bill actually does: classifying many types of communication as “conversations” rather than “records” and thus not subject to the state’s GRAMA laws, Utah’s version of the Freedom of Information Act. This really doesn’t sound like a whole lot of good.
Last night, I had the opportunity to talk with some Senate and House staffers about HB477 while visiting the capitol to try and find out what’s going on. The posts of their respective websites, Vox Populi and The Senate Site, summarize their view fairly well. For those who don’t have time to read it all (though I recommend you do), allow me to summarize the key points:
- GRAMA hasn’t been kept up to date to accommodate new methods of communication.
- Whenever the Legislature tries to update it, media companies are highly resistant to any changes which has scuttled attempts made in previous years to update it.
- Many GRAMA requests are exceptionally broad fishing expeditions looking for needles in a haystack. This is kind of expensive and pushes research costs from media to government.
- The current law can often be interpreted as too broad and include things that aren’t really records as records.
The Senate has a long list of points backing up their reasons for wanting to make the changes they did, but this covers the larger ones. I think it boils down to a few key issues that I will address individually:
- Cost. Several examples cite cities that had to spend tens of thousands of dollars and many months (or years!) of employee time to sift through the requests and find the required documents. In some cases, government employees are being treated as free research staff by third parties.
- Broadness of requests. Some requests are overly broad. Alta was asked to provide every single public document they had, a monster request for a town of 370. West Valley had to pour over 30 years of land use documents. Another city had to provide over a million records from their database to find a single record.
- Fishing expeditions. Some of the requests are being made not to find any specific information, but to try and find anything that might make for an interesting story. It could be an entire file cabinet of documents or a single out-of-context statement.
- Privacy. Constituent communication can often contain details not meant to be shared publicly. Some requests might obtain and publicize that information. This could have a chilling effect on citizens.
- Conversations versus records. Yes, there’s a difference. Not all conversations are records, and sometimes legislators need to be more candid in their speech without fearing what will happen if/when it appears on the front page.
Cost can be a big issue, but I don’t think it needs to be as expensive as it currently is. Rep. Richardson informed me that most GRAMA requests end up getting fielded by lawyers at this notorious high billable rate. Government absolutely has a responsibility to properly filter documents to ensure that no private or proprietary information is improperly disclosed. I question, though, if the services of an expensive lawyer are required. It seems that this is one of those things that can be easily done with a properly trained employee at a great reduction in cost. There is also no reason that a requesting party shouldn’t be assessed a fee if the cost of finding the information is truly a considerable burden.
It would also seem to be a good idea to preemptively evaluate and publish documents in an online searchable database to circumvent any sudden spikes in requests, many of which I’m sure are asking for the same or similar information. This would also allow for adding it as a recurring cost of doing business and improve public confidence in the transparency process. This would also solve the problems with broad requests and fishing expeditions by placing the burden of search back on the requester.
I can also empathize with the issues concerning many things that would have previously been considered conversations now becoming records not because of a change in the nature of the communication, but in the medium. The assumption now is that because something is in a recordable and reproducible format, it is a record. This isn’t a good direction to go in because it can stifle the conversation, forcing legislators to always demand phone calls or face-to-face meetings to discuss details not ready for prime time.
It would be lovely if we could all say what was on our mind and accomplish the sausage-making process in public, warts and all. For some companies, it can work splendidly. As Ric Cantrell pointed out to me, though, government is not a company. An off-the-cuff remark or unconventional idea in a brainstorming session can often make great fodder for the evening news or a hot blog post. The more cynical among us might say that it’s someone showing their true dark colors, but I’d like to be a bit more optimistic. Bad ideas often have a way of withering on the vine and dying out over time, even when they get enacted into law. Good ideas naturally spread and take hold. (At the least, this works most of the time at the state and local level. The feds haven’t figured this one out yet.) Sometimes bad ideas have a few good points in them worth salvaging or adopting. If we make legislators too afraid to discuss anything, what do you think will happen to the quality of the laws they make?
But why the process? The House hints at the long-running nature of these changes and the effort to thwart any attempts at changing or amending what is an admittedly broad definition of what constitutes a public record. From the conversations I had, media companies (not their often fantastic reporters and staff) have been key agitators, negotiating the changes in private and then knifing them in the back in public. Apparently the Legislature got tired of this process after a few years and decided to more-or-less blindside the crap out of them to get the job done. This logic makes perfect tactical sense.
Twenty-four hours ago, I would have said it was nothing but bad news. After getting the other side of the story, I can see it going either way. On the one hand, I don’t like the public being excluded from the process like this and ending up as collateral damage in a war between media lobbyists and the Legislature. On the other hand, the discussions have apparently been going on for years, just not as visibly as we may have hoped. Those of us who were unaware of the discussions and didn’t participate in that process missed a lot of backstory.
I think this issue is a lot more nuanced than most of us will realize. I still don’t like how it was done and subsequently still consider the changes suspect. (Read the bill for yourself here, though it’s a lot to digest.) I hope, though, that we can all try to see both sides of the coin to make GRAMA work best for all of us rather than setting the pendulum swing too far in either direction.