After more than 30 years of deciding disputes over public access to records, the Legislature could consider a bill this session that would disband Utah’s State Records Committee.
Senate Majority Assistant Whip Mike McKell, R-Spanish Fork, said he is working on legislation that could dissolve the records committee and send records disputes to a single administrative law judge.
“We are considering using somebody that’s legal-trained, like an ALJ, with a law degree, with the same appeal process that you have to district court today,” McKell said in an interview. “I think having experience there does matter, and having somebody with a legal background, somebody that’s a licensed attorney, it just makes sense.”
The seven-member State Records Committee was established in 1992 as part of the Utah Government Records Access and Management Act (GRAMA). Comprised of trained archivists, citizen appointments by the governor and a representative from news media, the panel hears appeals brought by the public and news outlets when state agencies or local governments deny access to public documents.
(Leah Hogsten | The Salt Lake Tribune) Sen. Michael McKell, R-Spanish Fork, presents his bill SB247 Medical Malpractice Amendments to the Utah Senate, Feb. 24, 2023. McKell is trying to change state law to ensure that sexual assault lawsuits do not fall under UtahÕs Health Care Malpractice Act, a law designed to cover negligence and poor care, not necessarily deliberate actions like an assault.
Dave Reymann, a lawyer who represents news outlets in records cases, said the State Records Committee was designed to bring together different perspectives on the cases and that Utah’s system has become a model for other states.
The decisions by the records committee that do get appealed to district court are affirmed more than 90% of the time, Reymann said, proving that the committee is getting its rulings right.
“This is not because they are getting things wrong on the law, so the notion that you need someone who is law-trained because the records committee can’t interpret the law is not borne out by what happens,” he said.
Pushing appeals to an administrative law judge would make the system less accessible to the average citizen and potentially more expensive, he said. If there are concerns about the makeup, adding members is an option, but, he said, “Just because the Legislature didn’t like a couple of decisions they made … doesn’t mean they should chuck the whole thing.”
States handle their public records appeals differently, with options ranging from negotiations with an ombudsman, taking cases to a hearing before a committee, going before an administrative law judge or going directly to court.
“I believe that shifting that role to the judiciary, in a GRAMA small claims court of sorts, is the way to go,” said David Cuillier, director of the Joseph L. Brechner Freedom of Information Project at the University of Florida.
Ohio’s system, as an example, is “worth replicating in every state,” he said. A party who has a records request denied can take the case to a court of claims, pay a $25 fee and have a ruling relatively quickly without needing a lawyer.
Ohio adopted its system in 2016 and, according to a study last year by Kent State University journalism professor Mitch McKenney, the court has handled more than 700 cases that were usually resolved within a few weeks and the appellants prevailed nearly 60% of the time.
The key, Cuillier said, is that the entity making decisions needs to be independent to avoid political meddling and be able to issue decisions that are binding.
The work of the State Records Committee has been hamstrung largely because the Senate had failed to confirm three appointments to the committee, leaving the panel without enough members to meet and forcing the board to cancel pending appeals hearings.
Reymann, as well as current and former records committee members, said at the time that the delays seemed intentional to prevent the committee from ordering the release of the records. At the time, Sen. Curt Bramble, R-Provo, who has since retired from the Legislature, said the nominees to fill the vacancies did not have enough support to be confirmed.
Reymann also pointed to a series of decisions that went against the Republican Legislature’s wishes as contributing to the standoff, including the media’s fight for the official calendars of former Attorney General Sean Reyes.
Reyes had refused to release the calendars, but the State Records Committee ruled that the records of his official meetings were, in fact, public records. The attorney general appealed the SRC decision, but a district judge ruled that the committee was correct and ordered the calendars to be released.
On the day of the judge’s ruling, Bramble sponsored a bill to exempt the calendars of public officials and government employees from the state’s open records law.
Three new committee members were confirmed in December, allowing the committee to resume its work. However, the delays forced the postponement of hearings and aggravated a backlog of cases.
Last year, an audit by the Office of the Legislative Fiscal Analyst and the Governor’s Office of Planning said that the State Records Committee needed to work faster to address backlogs in appeals. The audit found that in 2023, it took an average of 156 days to make a decision on disputes from the moment it received an appeal.
And the number of appeals coming to the records committee has increased significantly. In 2022, the committee issued decisions in 61 cases, in 2023 it was 64 and in 2024 it issued 85 orders — despite the months spent in limbo.
And the number of appeals coming to the records committee has increased significantly. In 2022, the committee issued decisions in 61 cases and decided on another 64 cases the following year. In 2024, despite the months spent in limbo, the committee issued 85 orders.
The overhaul of the appeals process for open records cases in Utah is just one of several bills already introduced in this legislative session that would impact the public’s access to government records.
Another bill, Senate Bill 163, sponsored by Sen. Wayne Harper, R-Taylorsville, changes the criteria for what is considered a “record” under GRAMA, requires requests to contain terms with “reasonable specificity,” allows some police reports to be withheld even if they contain information that has already been made public, extends the time government entities have to respond to a request from 10 days to 15 days and replaces one citizen member of the committee with a representative of law enforcement.
