Nearly every year the Legislature makes changes to the Government Records Access and Management Act (GRAMA) or other state records laws. In the past, most changes have been quietly implemented. However, last year when lawmakers passed House Bill 477 the resulting public outcry prompted its speedy repeal. The public message was that Utahans want easier access to government records and not more restrictions. Over the next several months, a GRAMA working group reevaluated the existing law and proposed recommendations for updating it.
Now, a year later, the 2012 Legislature has implemented changes based on the working group’s recommendations. Senate Bill 177 expands the supporting role of the State Archives by requiring the Archives to provide online training for all government records officers and to publish on its web site the names of all records officers. Senate Bill 177 also requires the Archives to appoint a records ombudsman to be a resource for both government employees who are responding to requests and to members of the public who are making records requests. The bill makes changes to the wording of GRAMA weighing provisions that tip a balanced scale in favor of providing access. All in all, these changes should improve the public’s ability to access public records. View a copy of Senate Bill 177 as it was passed on March 8, 2012.
Online training: The new law requires that all records officers be certified annually through online training. The law already required that every governmental entity appoint a records officer to work with the State Archives in the care, management, and access of records, and also required the Archives to provide training. The new requirement for the Archives to provide annual records officer certification through online training along with the requirement for records officers’ contact information and proof of certification to be published, will make government more accountable. Records officer training is to focus on the provisions of GRAMA and other legal and policy matters that relate to responding to records requests. These changes are to be implemented on or before January 1, 2013.
Records ombudsman: In order to provide further support the State Archives will be required to appoint a records ombudsman who is familiar with GRAMA and who will serve as a resource for both records requesters and the records officers who are filling their requests. In addition to answering questions the ombudsman can attempt to mediate disagreements between requestors and responders. This resource is to be implemented before May 8, 2012.
Weighing provisions: Language about weighing provisions has been adjusted throughout GRAMA to clearly favor records access. For example, where the law previously stated that a governmental entity should disclose a record “when interests favoring access outweigh the interest favoring restriction,” SB177 states that access should be provided when the interest favoring access is “greater than or equal to” the interest favoring restriction. This adjustment clarifies and reinforces the legislative intent section which has always been a part of GRAMA.
Additional changes: The revised law requires a requester who is appealing a records denial to the State Records Committee to also provide a copy of the appeal to the relevant governmental entity. It clarifies deadlines for making an appeal.
Language identifying personal notes and communication as non-records when they are prepared or received in an employee’s private capacity, has been changed to include any capacity other than the officer’s government capacity, or anything that is not related to the conduct of the public’s business.
Records that are subject to attorney-client privilege are protected, and now protection will be extended to a wide variety of records that are prepared in anticipation of litigation or of a quasi-judicial or administrative proceeding.
The weighing provision for certain enforcement and litigation records can be exercised only when there is a preponderance of evidence that the public interest in disclosure outweighs the government interest in nondisclosure.
The law provides a good faith defense for employees who mistakenly release what should be restricted or who restrict records that should be released on the belief that their action was in accordance with the law.
Finally, a public employee who refuses to release a record after receiving an unappealed order to do so is guilty of a class B misdemeanor.