FOREWORD

Utah’s statutory scheme guarantees public access to government records and meetings subject to certain exceptions discussed below.

Access to Government Records. Utah’s Government Records Access and Management Act (“GRAMA”) states that “[e]very person has the right to inspect a public record free of charge, and the right to take a copy of a public record . . . .” Utah Code Ann. § 63G-2-201(1). Under GRAMA, “a record is public unless otherwise expressly provided by statute.” Id. § 63G-2-201(2). For example, records classified as “private,” “controlled,” or “protected” are not public records. Id. § 63G-2-201(3)(a).

Enacted in 1991 and effective July 1, 1992, GRAMA replaced the “Information Practices Act” and the “Public and Private Writings Act,” both of which previously governed access to government records in Utah.

In enacting GRAMA, “the Legislature expressly recognize[d] two constitutional rights: (a) the public’s right of access to information concerning the conduct of the public’s business; and (b) the right of privacy in relation to personal data gathered by governmental entities.” Id. § 63G-2-102(1). In addition, the Legislature “recognize[d] a public policy interest in allowing a government to restrict access to certain records . . . for the public good.” Id. § 63G-2-102(2). The Legislature also stated that GRAMA’s purpose was to:

(a) promote the public’s right of easy and reasonable access to unrestricted public records; (b) specify those conditions under which the public interest in allowing restrictions on access to records may outweigh the public’s interest in access; (c) prevent abuse of confidentiality by government entities by permitting confidential treatment of records only as provided in this chapter; (d) provide guidelines for both disclosure and restrictions on access to government records, which are based on the equitable weighing of the pertinent interests and which are consistent with nationwide standards of information practices; (e) favor public access when, in the application of this act, countervailing interests are of equal weight; and (f) establish fair and reasonable records management practices.

 Id. § 63G-2-102(3).

These public policies are consistent with a leading pre-GRAMA Utah Supreme Court decision, in which the court stated that “it is the policy of this state that public records be kept open for public inspection in order to prevent secrecy in public affairs.” KUTV Inc. v. Utah State Bd. of Educ., 689 P.2d 1357, 1361 (Utah 1984). Therefore, “[t]he presumption . . . has always been [in favor of] public access, subject only to specific statutory restrictions, personal privacy rights, and countervailing public policy,” and an agency seeking to withhold information from the public bears the burden to justify its actions. Id.

The Utah Supreme Court recently held that courts reviewing GRAMA requests should apply the Legislature’s “clear and preeminent intent” to favor public disclosure when “countervailing interests are of equal weight.” Deseret News Publ’g Co. v. Salt Lake County, 2008 UT 26,¶ 24 n.3, 182 P.2d 372.

Access to Government Meetings. Although the Utah Legislature first enacted a rudimentary open meetings law in 1955, that law allowed public officials to hold closed “executive sessions” as long as the officials took no official action during those sessions. Not surprisingly, this provision was used to exclude the public and the press from many government meetings.

Upon submission of Utah’s current open meetings act to the Legislature in 1977 (after three earlier efforts to pass the bill had failed), one of the bill’s sponsors noted that nearly every other state had enacted open meetings laws that were stronger than Utah’s, and that in Utah many government meetings were conducted in secret or held in so-called “executive sessions.”

Utah’s Open and Public Meetings Act (“Open Meetings Act”) is designed not only to protect the public’s right to attend government meetings, but also to give the public adequate notice of when and where such meetings will be held. The need for adequate notice was illustrated dramatically during the 1977 legislative debates, when one representative explained that in his small town in rural Utah most of the citizens met at the Mormon meeting house on Sunday and discussed political matters. If the town citizens felt that an additional meeting was necessary, an announcement was made in church and the townspeople would reconvene at the schoolhouse after the church meeting. The legislator acknowledged that in recent years “outsiders” who “were not of the faith” had moved into his town, but he was reluctant to require his town officials to post notices of government meetings or to give notice of the meeting to a newspaper, because such notice had never been required before. The sentiments expressed by this particular legislator may have been atypical, but they illustrate why many observers felt that a better open meetings law was needed desperately in Utah.

The Open Meetings Act states that the “Legislature finds and declares that the state, its agencies and political subdivisions, exist to aid in the conduct of the people’s business,” and that “[i]t is the intent of the Legislature that the state, its agencies, and its political subdivisions . . . take their actions openly[] and    . . . conduct their deliberations openly.” Utah Code Ann. § 52-4-102(1)-(2). The Open Meetings Act requires state and local government entities and their advisory bodies to give notice of their meetings and to conduct their meetings in public, subject to certain exceptions discussed below. See id. §§ 52-4-201, -202.

Are Agencies Complying With Utah’s Public Access Laws? Since passage of Utah’s open records and open meeting statutes, the media and various public interest groups have lobbied aggressively to protect the public’s right of access to government meetings and government records. Although most government agencies favor openness in government and are willing to comply with the access statutes, there are some notable exceptions.

- In 2007, the television station KSL-TV requested mug shots of a man and a woman who had been booked into the San Juan County Jail and who were convicted subsequently of crimes against a minor. The station requested the photographs in connection with a news story. The county denied the station’s request, arguing that the mug shots were private because public disclosure would constitute an invasion of the convicted individuals’ privacy, and the station appealed to the district court. In May 2009, the district court issued an oral ruling from the bench that the mug shots constituted public records under GRAMA. Bonneville Int’l Corp. d/b/a KSL-TV v. San Juan County Comm’r, No. 070700046 (Utah 7th Dist.).   

- In 2004, the Deseret News requested a copy of an independent investigative report concerning allegations that the Chief Deputy County Clerk had sexually harassed and retaliated against a subordinate employee and that county officials knew of the misconduct but refused to address it. The county denied the request and the newspaper appealed to the district court. The district court ruled in favor of the county, determining that release of the report would invade the alleged harasser’s personal privacy rights and could interfere with future sexual harassment investigations. The newspaper appealed to the Utah Supreme Court, which reversed the district court’s decision and held that the investigative report was a public record under GRAMA. In a sharply worded opinion, the Utah Supreme Court observed that “GRAMA does not contemplate adversarial combat over record requests. It instead envisions an impartial, rational balancing of competing interests.” Deseret News Publ’g Co. v. Salt Lake County, 2008 UT 26, ¶ 25, 182 P.2d 372.

- In 1996, the Utah Senate held a secret meeting to discuss the politically controversial issue of gay student clubs in public schools. The Senate issued no public notice or agenda for the meeting, nor did the Senate take a vote to convene in closed session for any of the purposes authorized under the Open Meetings Act. In denying the Senate’s motion to dismiss the lawsuit challenging the secret meeting, the Utah Third District Court determined that the Senate’s action “ignores and overlooks the textual limits of the Utah Constitution, and the Open and Public Meetings Act on the issue of public meetings.” See Memorandum Decision, Jolley v. Utah State Senate, No. 960901127 (Utah 3d Dist. July 12, 1996). Pursuant to the parties’ stipulation, the court entered judgment against the Senate finding that “to the extent that the Senate is required to comply with Utah’s open and public meetings law . . . the Senate violated that law” by holding the secret meeting. See Judgment & Order, Jolley v. Utah State Senate, No. 960901127 (Utah 3d Dist. Feb. 19, 1997).

- In 1994, the Davis County Sheriff’s Office refused to release an audio tape of a 911 telephone call and Sheriff’s reports concerning a double murder-suicide. The 911 calls were placed by a woman as she was being shot by her estranged husband. The Sheriff’s Office refused to release the 911 tape on the ground that it was “too graphic” for public consumption. A local television station filed suit seeking access to the tape and police reports. After a sixteen-month legal battle, a district court judge ruled that the 911 tape and Sheriff’s reports were public records under Utah law and ordered the County to release them. The County agreed to pay more than $27,000 in attorneys’ fees and costs incurred by the television station in filing the lawsuit. Fox Television Stations Inc. v. Clary, No. 940700284 (Utah 2d Dist. Feb. 23, 1996).

- In 1994, the City of Orem refused to release the names, resumes, and professional qualifications of the six finalists for the position of Orem City Manager. The City claimed public disclosure would invade the finalists’ privacy and deter qualified applicants from applying in the future. The local newspaper and other open government advocates argued that public disclosure of the finalists’ names and professional qualifications was critical for the public to make informed judgments about the search and selection process and the quality and diversity of the candidate pool. The newspaper filed a lawsuit seeking the finalists’ names and, following a two-year legal battle, a district court judge ruled that the public interest favored release of the finalist’ names, resumes, and application records. Scripps League Newspapers v. City of Orem, No. 940400646 (Utah 4th Dist. Sept. 23, 1996).

A disturbing recent development has been the practice of state and local governments to use their information monopolies as revenue generators. Although GRAMA limits government copying charges to the “actual cost of providing” a record, some state and local government agencies have interpreted this language to include various overhead, labor, and other indirect costs. The result has been unreasonably high copying or “compilation” charges for some government records. For example, in Graham v. Davis County Solid Waste Mgmt. & Energy Recovery Special Serv. Dist., 1999 UT App 136, ¶ 29, 979 P.2d 373, the Utah Court of Appeals held that the defendant had not violated GRAMA by charging $280.00 in compilation fees where the defendant “had to take files, documents and data from several sources and organize them in order to respond to Mr. Graham’s request.” And, although GRAMA expressly states that “[e]very person has the right to inspect a public record free of charge,” Utah Code Ann. § 63G-2-201(1) (emphasis added), the State Records Committee has ruled that persons wishing to inspect public driving records must pay a fee of $3 per record to the Utah Drivers License Division. The Records Committee reasoned that the fee was permissible under another state statute allowing a charge for “furnish[ing] a report on the driving record of any person.” See Decision & Order, Deseret News Publ’g Co. v. Utah Dep’t of Public Safety, No. 92-02 (Utah State Rec. Comm. Nov. 12, 1992). These and other access issues likely will continue to arise in Utah until resolved by legislative amendment or by judicial decision.

Anticipated Changes in Utah’s Access Laws. The provisions of the Utah access statutes as of March 2011 are summarized below. GRAMA is likely to undergo more legislative tinkering and some litigation as government, the news media, and members of the public continue to apply the statute and to explore its contours. Open government advocates likely will continue lobbying for enforcement and penalty provisions in the Open Meetings Act and for more clearly defined access under GRAMA to electronic records, including e-mail and electronic databases. Government interests likely will continue seeking expansion of exemptions to public access under GRAMA and the Open Meetings Act. In light of these continuing efforts to revise Utah’s access statutes, the reader should examine the Utah Code and determine whether the Legislature has enacted any subsequent amendments to Utah’s access laws before relying on the information contained in this outline.

Any questions concerning the statutory provisions or regulations governing state meetings or state records may be directed to the Utah Freedom of Information Hotline (1-800-574-4546), the Utah Headliners Chapter of the Society of Professional Journalists, the Utah Attorney General’s Office, or the Utah State Division of Archives.