After weeks of foreshadowing, a bill was finally unveiled Thursday that would disband the State Records Committee, which has decided disputes over the public’s access to government information for more than three decades, and replace it with a single administrative law judge appointed by the governor.
Government Records Management Amendments, sponsored by Senate Majority Assistant Whip Mike McKell, R-Spanish Fork, also eliminates the “balancing test” used to decide if the public interest in releasing records can warrant releasing material that otherwise would be private.
McKell has said previously that he favors having a law-trained administrative judge deciding records disputes, believing a judge would be more likely to rule correctly based on the law than the records committee has.
“I think having experience there does matter,” McKell said in an interview last month, “and having somebody with a legal background, somebody that’s a licensed attorney, it just makes sense.”
Of more than 200 decisions issued by the records committee in the last several years only one has been overturned by the courts.
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.
McKell’s bill would replace the committee with an administrative law judge who is appointed by Gov. Spencer Cox — who is McKell’s brother-in-law — and confirmed by the Senate.
If the bill passes, the new judge would not be able to order the release of records that might be protected, even when there is an overriding public interest in the information.
That public interest provision has been used in a number of cases in recent years, including:
• Obtaining information about lobbyists paid $5 million in taxpayer money to advocate for the removal of wolves from the Endangered Species List;
• Compelling the release of records on a criminal investigation into the former Ogden mayor;
• Uncovering information about alleged corruption by Weber County commissioners;
• Gaining access to interviews with police officers involved in shootings.
The Utah Media Coalition, which is made up of Utah news outlets and organizations, including The Salt Lake Tribune, opposes SB277 and said it would undermine the public’s right to know how governments are doing the public’s business.
“SB277 will weaken GRAMA and increase government secrecy by abolishing the State Records Committee and prohibiting government officials, appeals boards and the courts from ordering the release of records even when there is no good reason to keep them secret,” the coalition said in a statement.
The records committee serves the public well by bringing together diverse perspectives, the coalition said, and the balancing test “is the beating heart of GRAMA.”
“Without it, government could withhold records even if the public interest in disclosure was compelling and the interests favoring secrecy were non-existent or minimal,” the coalition said. “Public transparency laws should serve the public interest, not discard it in favor of categorical secrecy, which is what SB277 does.”
David Reymann, a lawyer who has represented news outlets in open records cases, said previously that the effort to disband the records committee doesn’t stem from the committee getting rulings wrong on the law — because the data doesn’t bear that out — but a series of high profile rulings that have gone against the Legislature’s wishes.
That includes a case where KSL and The Tribune sought access to the calendars of former Attorney General Sean Reyes. After Reyes refused to release the calendars, the records committee held they should be public and the decision was upheld on appeal by a district court judge. The day the judge issued the ruling, the Legislature changed the law to make all calendars of any government employee or elected official private going forward.
Ohio adopted a system in 2016 where administrative law judges hear records challenges and, according to a study last year by a Kent State University journalism professor, the more than 700 cases the judges had handled were usually decided within a few weeks with the appellants prevailing nearly 60% of the time.
Delays have been a problem with Utah’s State Records Committee, at least in part because the Senate had failed to confirm three appointees to the committee, leaving the panel without enough members to meet and forcing the board to cancel pending appeals hearings.
And the number of appeals heard by the records committee has increased significantly. In 2022, the committee issued decisions in 61 cases. The next year it issued 64 opinions, and in 2024, despite the delays due to the vacancies, the committee issued 85 orders.
An audit by the Office of the Legislative Fiscal Analyst and the Governor’s Office of Planning last year said the committee should work faster to address a backlog of appeals. Their report found in 2023 it took an average of 156 days from the moment an appeal was filed to reach a decision.
Correction, Feb. 14, 9:45 a.m. • The story has been updated to remove a reference to removing attorney fees for the winning party in records cases.
