Utah lawmakers declined to reappoint members to the State Records Committee. Was it retaliation?

It’s already a monthslong wait to get an appeal in front of the backlogged Utah State Records Committee, which is charged with hearing arguments from journalists and the public when a government agency denies access to records.

But now those delays are set to get even worse — hampering transparency and putting some cases out half a year or more after they are submitted.

That’s because vacancies have left the typically seven-person committee without enough members for a quorum. Since the end of September, the committee has had only four members; it needs five to be able to legally conduct business.

“The ultimate losers in this are the members of the public who are trying to access records, because we’re not able to meet and perform our duties,” said Nova Dubovik, the Record Committee’s interim chair. “The appeals don’t stop coming in. It just backs up the workload for us even more.”

The committee won’t be able to meet until the Utah Senate approves Gov. Spencer Cox’s nomination for at least one new member. Internal back-and-forth, though — and, some say, retaliation by the Republican-majority Legislature over the committee’s recent decisions to order the release of the Utah attorney general’s work calendars — have slowed that appointment process to a crawl.

“It’s really undermining one of the fundamental purposes of the state’s public records law, which is to provide quick and easy access,” said David C. Reymann, a media attorney who has several cases pending before the committee, including one representing The Salt Lake Tribune.

The Records Committee usually meets once a month. It had two meetings scheduled for October to try to work through the backlog. Both had to be canceled.

The Tribune had one hearing scheduled for the next expected meeting in November — with the original appeal submitted four months earlier, in July. That has now been delayed, without a new date set. Another appeal filed by the newspaper this month was also not put on any agenda.

A letter from the committee’s secretary said: “I do not expect this will be heard before January.”

Reymann and some current and former members of the board who spoke to The Tribune say the delay in appointing new members seems intentional and punitive, meant to keep the body from granting access to records that should be public.

Even if there’s partisan split, it’s incredibly rare for a committee in Utah not to move forward with a nomination made by the governor. And the process typically moves forward in days.

Cox’s office declined to comment, but the governor did move in July for the three members whose terms have since ended to be reappointed.

The Senate Business and Labor Confirmation Committee, though, which gives initial approval, declined in September to forward the names to the full body for a vote. Republican Sen. Curt Bramble, chair of that committee, told The Tribune: “It was clear there was no support in the committee” for those individuals.

At his discretion as chair, there was no public vote on the names. He said he polled the other Republican members of the confirmation committee — a majority of the legislative group — to make that call. The two Democrat lawmakers confirmed they were not consulted.

Bramble declined to say what, specifically, about the members led him and select GOP lawmakers to not support the reappointments. Only one of the other Republicans on the confirmation committee responded to a request from The Tribune for comment.

Sen. Dan McCay, R-Riverton, said his reason was to allow other people the opportunity to join the committee.

“Utah has hundreds of thousands of citizens that can serve in appointed positions,” he said in a text, “and it’s important to allow a variety of people to serve.

Bramble said his disapproval was not over his disagreement with how the Records Committee has ruled, though he does not support the decision that ordered the release of Utah Attorney General Sean Reyes’ calendars. In response to that, Bramble rushed to sponsor a bill that passed earlier this year that explicitly made public officials’ calendars exempt from disclosure.

“Anyone who knows my political record, I could point out dozens of times where I disagree with someone and still support them,” Bramble said.

The senator, who is retiring this year, said he’d like to wait until the governor has submitted a collection of three new names to hold a hearing, rather than doing it one nominee at a time. He incorrectly stated, “If we held a confirmation hearing for one of the three, that doesn’t give us a quorum.”

When The Tribune noted his error, Bramble said he still intended to wait for all three nominations in one meeting to “be as efficient” with lawmakers’ time as possible.

Dubovik, the Records Committee chair, was hoping another member might be named so the November meeting could still be held. It seems unlikely, though, that any new members will be confirmed any sooner than December.

Committee’s caseload grows

Every year, the Records Committee receives more and more appeals. In 2021, it had 150. By the following year, there were 260 — a more than 70% increase.

Some get resolved when the requester mediates with a government office. Some get dropped. But for this last fiscal year — the most recent data available — the committee heard and issued orders for 85 cases of the 261 appeals it received. That’s the most it has ever issued in a year.

Before that, the most recently available data was from calendar 2022, when the committee authored 61 orders.

Reymann believes requests lately are often being improperly or unreasonably denied at the outset by government offices, leading to more appeals. He blames those offices for creating the backlog, not the committee. But that doesn’t mean the appeals should be delayed either, he said.

“We already have a lot of cases to hear, and this delay will just backlog it further,” added current Records Committee member and Bountiful Police Chief Ed Biehler, who fills the position for an individual with expertise in electronic records and databases.

The committee hears roughly 10 cases at each meeting. Recently, members moved to cut down the time allotted for presentations to be able to hear more appeals.

But Biehler and others still on the committee fear any progress made to cut into the backlog will be lost as cases and delays continue to mount — on top of the time it will take to train new members. If they miss their November meeting, three agendas’ worth of appeals will have been pushed back.

Dubovik didn’t have a specific number available for how many appeals are currently on the list to be heard, but most are being scheduled at least three months out — which already comes after a reporter or member of the public has taken the time to file the request, appealed the denial directly to the agency first and then taken their appeal to the Records Committee.

The committee members represent different interests in records access, from a media representative to someone in the private sector. Nancy Dean, who represented political subdivisions, was serving as the chair of the committee until her appointment ended in May. Marie Cornwall, a citizen member, and Mark Buchanan, the private sector representative, both saw their terms end in September.

Buchanan told The Tribune: “I’m disappointed I didn’t get reinstated on the committee.” He declined to comment further.

Dean could not be reached for comment. Cornwall said her reappointment “was iffy,” because she’d served half of a term before being appointed to a full term; committee members are limited to one reappointment.

She added she’s not sure if the decision to brush off the reappointments was punitive or politically driven, but she points to “a messy Legislature” as part of the reason for the slow-moving process.

The governor is responsible for naming six of the seven individuals to serve on the committee. The other member is the director of the Division of Archives and Records Services, currently Kenneth Williams, or the director’s designee.

When Cox’s recent reappointment requests were dismissed, the governor was tasked with making three new recommendations. At this point, he has submitted two names:

• Todd Sheeran, whom Cox nominated on Oct. 17 to replace Dean. Sheeran is currently the city attorney for Herriman, as well as a contract attorney for Fairfield (a small town in Utah County).

• Jeffrey Marshall, whom Cox nominated on Oct. 21 to replace Buchanan. Marshall has worked at Northrup Grumman — an aerospace and defense manufacturing company — as an engineer, analyst and technician since 2004.

Were the decisions on Reyes’ calendars a factor?

The Records Committee ruled late last year — and reaffirmed the decision again this year — to release Reyes’ work calendar to KSL-TV. The committee later sided with The Tribune, too, in a similar request for several years of calendars reflecting Reyes’ official activities.

Reyes’ office has sued both outlets in an effort to not disclose the records. In February, a 3rd District Court judge ruled in favor of KSL investigative producer Annie Knox and granted repayment of the station’s legal fees. Reyes appealed the decision. The case with Tribune reporter Jessica Schreifels’ request is ongoing.

The requests came after the attorney general, who is not running for reelection, had come under fire for extravagant trips and his ties to Tim Ballard, the founder of the anti-human-trafficking group Operation Underground Railroad. Ballard has been accused in civil lawsuits of sexually assaulting and raping several women; he has denied wrongdoing.

Past attorneys general in Utah have released their calendars, but Reyes’ office argued that the schedules were not subject to the open records law. The Records Committee agreed with reporters, dismissing the argument that the Legislature’s new restrictive law was supposed to apply retroactively.

GOP state lawmakers widely panned the committee’s decisions and accused the members of not understanding records laws.

Still, while Bramble disagreed with the committee’s ruling, he says that wasn’t what stopped him from approving the reappointments. “I don’t think so,” he said when asked if that played a role.

The only specific issue Bramble noted with the three members being reappointed is that none of them asked to meet with members of the Senate confirmation committee to discuss their qualifications. “We never heard from any of the members,” he said.

When he previously chaired the Senate Revenue and Taxation Confirmation Committee, he said, nominees would frequently reach out.

Dubovik, Biehler and Linda Petersen (the media representative), who are all currently on the Records Committee, said they were never told why the others weren’t reappointed. Petersen said the former board members were all willing to serve again and had “valuable experience and understanding of the law” that will now be lost.

“Since the Records Committee only seeks to help enforce and provide understanding of GRAMA, which was enacted by the Legislature and modified by the same body over the years, this inaction is puzzling,” she said.

When asked if she felt the Reyes rulings had to do with the decision, Dubovik said she hoped the Legislature wouldn’t retaliate for that.

“We followed the law as it was written,” she said. “I don’t think there’s anything punitive that anyone could come back on us for.”

But Sen. Nate Blouin, a Democrat on the Senate Business and Labor Confirmation Committee, thinks that was “definitely the straw that broke the camel’s back.” And so does Reymann.

“There’s a pattern of the Legislature not getting what they want from some branch of the government and changing the rules and then punishing the body,” the attorney said.

For Reymann, the Reyes calendar decision also wasn’t the only one that he feels put the target on the Records Committee.

He points, too, to the committee’s decision last year ordering the release of name, image, and likeness, or “NIL,” agreements for athletes at the state’s public colleges and universities to The Deseret News. Like with Reyes’ calendars, the Legislature quickly afterward proposed and passed a bill that made those contracts private.

A judge sided with the state, saying that law did specifically intend for the privacy to extend retroactively.

Committee wants to ‘do our work’

Each nomination that the governor makes to the Records Committee, according to state law, has to be public for at least 30 days before the Utah Senate can vote.

Bramble said he intends to stand by that rule — and not waive it — with these nominations. The rule has recently been waived to expedite other appointments, including to the Utah Department of Alcoholic Beverage Services’ commission and recently for Joel Ferry to be the state’s water agent.

The senator said those positions were less of a “hot topic” and “noncontroversial,” and not for a committee focused on transparency. Bramble wants the public to have time to weigh in on the nominees. It’s not a delay, he said, but a matter of due diligence.

“This is a big enough issue that personally I don’t want to rush it,” he said.

That timeframe, though, means neither name currently suggested by the governor could be voted on by the confirmation committee’s next expected meeting in early November.

The committee, overall, also has 90 days total to consider a name before it expires. So even the expected December interim meeting isn’t a guarantee.

Bramble said he’d like to see “a fully functioning Records Committee.” But, until then, he noted that there’s another avenue — a “safety valve” — to appeal requests: going directly to district court if a request is denied. He included in the law that blocked the release of officials’ calendars a provision for attorneys’ fees to be repaid if the requester wins in court.

Blouin, though, feels like the nominations could have and should have moved forward months ago — before the Records Committee lost its quorum, which the Legislature had notice was coming, and before the committee was stopped from conducting business right before an election. Dubovik agreed.

“That’s really important for us,” she added. “I just hope the next time we have positions that need to be filled that the Legislature leans forward and fills those so we can do our work.”