A bill that would dismantle the citizen committee that decides disputes over the release of government records and replace it with an administrative law judge appointed by the governor narrowly won approval from a Utah Senate committee Tuesday.
Senate Majority Assistant Whip Mike McKell, R-Spanish Fork, argues the current structure of the State Records Committee is inefficient, leading to long delays in deciding open records appeals.
In 2023, it took on average 156 days from the time an appeal was filed to the committee rendering a decision. In Ohio, which assigns cases to a group of administrative law judges, decisions are typically rendered within a few weeks.
McKell said that just 10% of records appeals were resolved within the 73-day window prescribed in the law, and speeding up the process would prevent mistrust of government bred by delays.
“I think this process is going to be even better,” McKell said. “Having decisions made quickly and having decisions done by somebody with experience, I think, helps.”
McKell stripped out a provision in the bill that would have done away with the so-called “balancing test” — which allows for records that otherwise might not be available to the public to be released if there is an overwhelming benefit to the public.
The prospect of doing away with the balancing test drew significant opposition over the weekend from media groups and conservative activists wanting to preserve the Government Records Access and Management Act (GRAMA).
Media representatives argued that keeping the balancing test in the bill was an improvement, but the State Records Committee process is working well.
“The State Records Committee deserves respect. It deserves to be recognized for the work it has done. This is a citizen-led process,” said Michael Judd, an attorney representing the Utah Media Coalition — which represents many of the state’s news outlets and media organizations, including The Salt Lake Tribune — at Tuesday’s committee hearing. “The State Records Committee gets these questions right. … It gets them right over and over and over again.”
Of the SRC rulings that have been appealed to district court, 98% of the committee’s decisions have been upheld.
McKell’s decision to leave the balancing test in the law did little to blunt the public opposition. Eighteen members of the public testified in opposition to the bill. Just one, a representative from the Utah League of Cities and Towns, supported it.
Ryan Hogan, a defense contractor, said he has used GRAMA to recover millions of dollars in government waste for taxpayers.
John Gadd, an attorney who has represented clients in GRAMA cases, said having a judge who is appointed and can be fired by the governor puts decision-making in the hands of someone who “will be too beholden to the governor and will be afraid to rule against the governor or lieutenant governor out of fear for losing their livelihood.”
Others spoke against spending $400,000 — which McKell said it would cost to establish the new administrative law judge and a state records director — rather than continuing with the all-volunteer records committee.
The Senate Government Operations Committee voted 4-2 to move the bill forward to the full Senate with encouragement to keep working on it. Two Republicans — Roosevelt Sen. Ronald Winterton and West Valley City Sen. Daniel Thatcher — voted against it. Thatcher said he wasn’t comfortable with the rush to pass the bill.
“I think a lot of things in this are right and could be beneficial, but there’s one thing I just can’t get past, and it’s this: The public does not feel heard, and it’s something we are seeing more and more and hearing more and more if we listen,” he said. “They’re concerned about power grabs, they’re concerned about not being included in the process, they’re concerned about bills not having enough time or input.”
In addition to altering the appeals process, the Senate Tuesday passed a bill Tuesday that would make it virtually impossible for the public and the media to recover attorney fees when government entities improperly deny open records requests and the requester has to go to court to compel the release of the documents.
Currently, requesters who win in court can be compensated for their court costs. An amendment dropped into HB69 would change that, requiring the winner in court to show that the government acted in “bad faith” — meaning the reason for denial was objectively without merit — in order to recover fees.
For example, last year KSL was awarded more than $132,000 in legal fees after it had to go to court to force the attorney general’s office to release then-Attorney General Sean Reyes’ official calendars. Fees have also been awarded in court cases over records related to government corruption, police shootings, taxpayer-funded lobbying and sexual harassment by public employees.
Sen. Calvin Musselman, R-West Haven, added the legal fees provision to an election bill before its final Senate vote, explaining that it merely creates a “two-way road” where the government can collect legal fees if it prevails and said the standard “remains as it does for the person bringing the suit.”
He did not mention that it adds the “bad faith” requirement for the requester to collect legal fees. No senators questioned his inaccurate description before unanimously passing it to the House for a final vote.
The Utah Media Coalition said in a statement that the vast majority of states and the federal government allow a prevailing party to collect attorney fees in records cases and HB69 would make Utah an outlier.
“The government employs legions of taxpayer-funded lawyers to oppose open records requests,” the coalition said. Allowing a requestor to recover fees levels the playing field and incentivizes the government to not wrongfully withhold public records.
Rachel Terry, the director of the state’s Division of Risk Management, said that inconsistent interpretation of GRAMA law by the State Records Committee has exposed the state to increased costs over the last three years.
“That attorney fee provision that was put in in the last few years has been really expensive for the state,” McKell said. “It’s exposed the state to significant liability.”
Musselman’s amended HB69, which strips the legal fees, passed the Senate unanimously Tuesday and moves back to the House for a vote on the amendment, likely to come this week.
