Sunshine Week: The forecast is mostly cloudy

from The Huffington Post:

COLUMBIA, Mo. (from Ken Bunting, executive director at NFOIC) -- Heading into "Sunshine Week," many open government advocates across the country feel they have much more to bemoan than they have to celebrate.

Even if no court or attorney general ever chastises Wisconsin's Republican legislators for violating open meetings law notice requirements, the convoluted web of parliamentary rationalizations surrounding their vote last night is still beyond ordinary comprehension.

Meanwhile, Utah Gov. Gary Herbert has signed into law a measure that now means that fewer than half of all U.S. state legislatures hold themselves to the same levels of transparency they prescribe for others.

Worse yet, open government laws in state after state, whether or not their reach goes to lawmakers themselves, are being damaged and weakened, with increasing frequency, by new exclusions, loopholes and crazy exemptions that promote more secrecy and a lot less transparency.

President Obama's openness pledge has garnered a lot of attention, with advocates questioning whether it was a false promise and whether his professed belief in transparency will ever make its way down through the vast federal bureaucracy.

But at the state and local levels, there has been little notice of an ongoing frontal assault on open, accessible government. When viewed comprehensibly and nationally, what has been happening in state legislatures all across the land has been downright scary.

Read the rest here.

A dark day for Utah FOI

from SPJ Blog Network:

On Wednesday, the Utah House Public Utilities and Technology Committee gave its OK to a bill that essentially dismantles the 20-year-old Government Records Access and Management Act (GRAMA). As The Salt Lake Tribune reports, the bill, House Bill 477, would strip the legislative intent statement from GRAMA, which states that privacy concerns would be balanced with the public’s right to know; requiring those who appeal a records denial to make the case for disclosure by a “preponderance of the evidence” rather than submitting to a balancing test of the public’s right to know verus privacy concerns; makes text messages, instant-message chats, video chats and voice mails private records; fee waivers would be based on whether it was in the best interest of “taxpayer resources” to do so, rather than whether the person is seeking the records for a public benefit; and would allow for the inclusion of overhead, salary and other costs associated with filling a request; and make much of the Legislature’s paperwork exempt from disclosure.

And those are just a few of the things it does.

Rep. John Dougall, R-Highland, ironically identified himself as an advocate of transparency. He claims GRAMA has gone too far and, to bolster his case, he trots out the canard of a constituent e-mailing a legislator to discuss a bill and mentioning as an aside that his child is sick, and the child’s illness being splashed across the front pages of newspapers.

Read the rest here.

A $27,000 Price Tag to Know How Much Road Fight has Cost Taxpayers

The Taxpayer Association of Kane County, Utah, was astounded when it received the estimated cost of its request for records regarding how much the county has spent battling the federal Bureau of Land Management regarding ownership of public roads in southern Utah -- $27,000 and a few years.

The group does not take a position in the litigation over the removal of 31 BLM road closure signs on hundreds of public roads in 2003, but it does want to know how much the fight has cost the county. The taxpayer group requested information regarding how much money has been spent from the general fund; how much time county employees have spent on road projects; how much has been spent on private contractors; all attorneys fees; any costs for vehicles or equipment; per diem costs for associated travel; and any surveys and maps created.

The Kane County attorney maintains the scope of the request is too broad and vague to merit a reasonable response in terms of cost and time, estimating it would take two paid researchers at least 1,500 hours to gather the information requested.

For more information, click here.

Video and Reports of Former Utah State Senator's DUI Arrest to be Public

The Utah State Records Committee will release the three-hour long dash-cam video of former Utah state Sen. Sheldon Killpack's arrest for allegedly driving drunk. They will also release the Utah Highway Patrol's incident report. However, the release of the public records could be delayed by up to a month as the records committee has five days to sign an order stating its decision, and the Department of Public Safety has 30 days within which to appeal to the district court.

The Salt Lake Tribune reports that Killpack was stopped at 12:17 a.m. on January 15 and failed field sobriety tests. After Killpack refused a Breathalyzer test, a blood draw showed his blood-alcohol content at 0.11, which is above the legal limit of 0.08. Killpack resigned his political office the next day, and was charged with DUI and failure to signal.

For more information, click here.

Investigation Finds Felons Working in Higher Education

Since Utah enacted the Higher Education Criminal Background Checks bill, effective May 1, 2009, Weber State University's The Signpost found that eight individuals with felonies or serious misdemeanors were employed by the university. Three of those individuals no longer work for the school.

The law requires criminal background checks for new employees in higher education. Anyone applying for a position that would have "significant contact with a minor or a position that is security-sensitive" must submit to a criminal background check as a condition of employment.

Weber State University takes electronic fingerprints from applicants and sends them to the Utah Bureau of Criminal Identification, using a federal criminal database, before making a final offer of employment.

Read more from the two-part investigative series: Part 1 and Part 2.

Records in the Elizabeth Smart Kidnapping Case to become Public

A federal judge ruled to make public sealed court docket entries and most hearings related to the Elizabeth Smart kidnapping case.  However, competency reports about Brian David Mitchell and records that involve a privacy right of anyone else involved will remain closed. Mitchell is charged with Smart's kidnapping and has been found incompetent to stand trial in state court twice.  A 10-day federal court competency proceeding is scheduled to begin November 30.  

An attorneys for media organizations say the ruling is "good news for access."  Get more information here.

Utah Meeting to Optimize State Government Won't be Public

The Utah Advisory Commission to Optimize State Government, a commission to streamline state government, won't be open to the public.   The Salt Lake Tribune requested to attend the meeting under open records laws, but the Commission denied the request, saying that keeping the meeting closed to the public will allow for more full and frank discussion.  

More here. 

Records indicate shooter had history with Trolley Square

FOI at Work!
The 745 pages of FBI reports on the 18-year-old who shot nine people at Trolley Square revealed that the mall was a childhood hangout for Sulejman Talovic, who also had made racist and violent remarks long before his rampage, The Salt Lake Tribune reported. This article is based on an FOIA request Nate Carlisle filed two years ago.

When 18-year-old Sulejman Talovic walked into Trolley Square and opened fire on shoppers, he was returning to a childhood hangout, according to newly-released FBI documents.

Talovic and his family used to live one block from the mall, and one person told agents Talovic played there with his sisters as a child. Another said Talovic was at Trolley Square "every day," and that the mall "was the only place he went." Someone also recalled Talovic once got into a physical fight with someone at the mall over a video game.

The documents provide the first possible explanation for why Talovic, a Bosnian immigrant who came to the U.S. at the age of 9, chose the mall as the site of his rampage. They also detail racist, violent statements made by Talovic -- among them that he planned to shoot white people like Serbs, had been a member of the Klu Klux Klan, and shot someone in a drug deal gone bad.

More here.

State officials dispute Utah report on mentally ill

FOI AT WORK!
An AP report compiled with numbers obtained through the FOIA and the Centers for Medicare and Medicaid Services indicate that Utah has the highest rate increase in younger (22-64) mentally ill nursing home residents. However the Utah Division of Substance Abuse and Mental Health denies that there's any way that Utah saw a 78 percent increase in younger mentally ill patients in nursing homes between 2002 and 2008. Only one state in the nation, however, saw a decline: Minnesota.

The number of young and middle-aged mentally ill individuals in nursing homes in Utah grew at the fastest pace in the nation during the past seven years, according to an Associated Press study.

But state mental health officials dispute the study. Robert Snarr, manager of state adult programs with Utah Division of Substance Abuse and Mental Health, said statistics kept by the state do not match the AP study. There has been no noticeable increase in demand for nursing home care for the mentally ill in Utah, he said.

According to the study, the Beehive State saw a 78 percent increase in the number of seriously mentally ill people between the ages of 22 and 64 living in state nursing homes between 2002 and 2008.

More here.

Utah public records bill dies

From the AP:

A bill that would have made it easier to keep some records private has failed to pass the Utah Legislature.

The House and Senate didn't reach a compromise on House Bill 122, which made changes to the balancing test for the release of 8 types of records covered under the Government Records Access and Management Act that deal with police investigations and legal proceedings.

The Senate passed a version of the bill earlier and sent it back to the House. On Thursday, the last day of the session, the House offered its own version. The two chambers couldn't agree in conference committee and the bill died.

More here.

Utah bill to strengthen privacy protection on records gets revised

Utah citizens can argue that the public benefit in releasing a private or protected record outweighs the reasons for closing it. The new version of this bill requires those arguing for the release of "records that would jeopardize the life and safety of an individual" provide "clear and convincing evidence for disclosure." The requestor only has to prove by a "preponderance of the evidence -- or slightly more than 50 percent -- that the records should be made public" for seven other categories of private records, the Salt Lake Tribune reported.

A bill that would restrict public access to some government records, cleared the Senate Government Operations Committee on Tuesday after significant changes were made.

"The measure originally sought to prevent the balancing test" weighing public access vs. privacy interests, said Jeff Hunt, an attorney representing the Utah Media Coalition. The coalition initially opposed HB122, which is sponsored by Rep. Douglas Aagard, R-Kaysville, and backed by state Attorney General Mark Shurtleff.

When a government record is classified as protected or private, someone can argue that the public benefit of disclosing the information outweighs the need for privacy.

More here.

Utah bill to weaken FOI passes House

The Utah House supported a bill that would exempt records prepared for pending litigation as well as anticipated legal action from the public records act. Open-government advocates are concerned with how lawyers will define "anticipated legal action." The bill will now go to the Senate, The Salt Lake Tribune reported.

A bill that would change Utah's public records act passed the House on a 43-27 vote Wednesday.

HB122 would allow some records to be classified as private or protected if prepared for pending litigation -- lawsuits already filed -- and anticipated legal action as well.

The measure has been opposed as a significant dilution of state open records law by a coalition of media organizations, which includes The Salt Lake Tribune.

More here.

Utah bills threatens right to appeal for some records

Utah's open records law is in danger of being weakened as a bill to limit public access to records makes its way to the House floor, The Salt Lake Tribune reported. Individuals could not appeal decisions regarding requests for "records associated with law-enforcement proceedings, government audits and personnel matters." The bill would also protect "records associated with anticipated litigation."

A bill chipping away at public access to government records advanced to the House floor Monday -- despite strong opposition from the Utah Media Coalition.

HB122 -- sponsored by Rep. Douglas Aagard, R-Kaysville, at the request of the Attorney General's Office -- would remove avenues of appeal for records associated with law-enforcement proceedings, government audits and personnel matters.

It also would allow records associated with anticipated litigation -- lawsuits expected to come but not yet filed -- to be classified as protected, without any chance for the public or the media to appeal.

More here.

NFOIC awards new grants to state coalitions

For immediate release

CONTACT:
Charles N. Davis
Executive Director, National Freedom of Information Coalition
daviscn@missouri.edu
573.882.5736
http://nfoic.org/

Columbia, MO -- The National Freedom of Information Coalition awarded new grants at its December board meeting in Columbia, Missouri, and it's an impressive list of worthwhile activities and projects that will be funded.

Meeting for the first time at the brand new Reynold Journalism Institute at the Missouri School of Journalism in December of 2008, the NFOIC board awarded eight grants to eight coalitions for a total of $69,820 in this the first of two grant award periods....

Full release here:

https://www.nfoic.org/nfoic-awards-new-grants

Plea deals may no longer be public in Utah

The Daily Herald argues why public access to plea agreements are necessary as well as why retaliation fears are exaggerated:

We urge the federal court in Utah to refrain from adopting a new rule that would close public access to any plea agreements that reveal whether a defendant is cooperating with authorities.

The rule would strike at the heart of the public's right to know what has happened in a criminal case. It would diminish public trust in the judicial system and potentially lay the groundwork for abuse.

And it's unnecessary. The proposal addresses a fear that may be a mere chimera.

More here.

No WONDER They Tried To Keep the Lid On...

Want a GREAT example of why access to records matters? Check out this beauty from Utah...

Pressed for details about bonuses given to Sandy employees in 2004, City Administrator Byron Jorgenson refused.
Bonuses, he and other city officials argued, were a valuable tool for rewarding workers, but best kept secret to avoid creating bad feelings among those who received the extra cash and those who didn't.
But an analysis of Sandy's pay records - finally made public last month under court order - reveals a decades-old system that disproportionately benefits the city's highest-paid employees, including the mayor, administrators, department heads and their top aides.
And Jogenson is the biggest winner of all. In the past five years, he has pocketed $50,500 in bonus pay.

More here.

New Exemption for Animal Researchers in Utah

The Utah House of Representatives passed a bill to conceal the names, personal addresses and phone numbers of U animal researchers.

The bill, which passed unanimously Feb. 22 and the Senate president signed on Monday, would modify the Government Records Access and Management Act to classify personal information of researchers who do medical or scientific research on animals at Utah colleges and universities as protected documents. Gov. Jon Huntsman Jr. must now sign the bill for it to become law.

Sen. Greg Bell, R-Fruit Heights, sponsored the bill in response to animal rights protesters from the group Utah Primate Freedom who, he said, had been harassing U researchers and vandalizing their homes.

"The public has the right to understand what research is going on...but they don't need to know specific information of workers," Bell told The Daily Utah Chronicle earlier this month. "Basic human dignity and decency requires that we have people in good faith pursuing legitimate research, but we shouldn't be harassing people just because we disagree with them. But that hasn't worked, so we have to resort to legal means."

Utah Primate Freedom activist Harold Rose said the legislation won't have any effect on the group's campaign to stop animal research.

"It's more of a symbolic gesture on their part," Rose said. "Unless they completely cease doing research, we're going to hear about it."

Rose said none of the names or addresses of researchers his organization has used to target researchers' homes were found through GRAMA requests or the Freedom of Information Act, because the U denied all of their requests. The group petitioned the U for the identities, positions and salaries of researchers last year, but the U denied the request, a decision the Utah State Records Committee upheld. On one occasion, Utah Primate Freedom submitted a request for the types and number of animals being used for research at the U, which was also denied.

More here.

A Brave Legislative Act in Utah: Admitting Error

Don't vote for my bill.

It's a phrase rarely heard at the Utah Legislature, but that didn't stop Sen. Chris Buttars, R-West Jordan, during a committee meeting Friday.

At the tail end of a long debate on SB260, Buttars asked his colleagues to vote against his bill that would make private all formal charges and disciplinary actions against a peace officer. Committee members listened and killed the bill in the Senate Government Operations and Political Subdivisions Committee on Friday.

"This isn't what I thought it was," Buttars said. "I really think this is not a good bill, and if you're going to vote on it, I would vote 'no' at this time."

Buttars said he wanted the bill to conceal disciplinary actions if the officer were exonerated. But the bill didn't do that at all. It provided blanket protections for records detailing the misdeeds of police officers.

The majority of Utahns are against such blanket protections, according to a new Deseret Morning News/KSL-TV poll. In fact, 62 percent of those polled said disciplinary records should be in the public eye.

Just 31 percent said the records should be private. The Dan Jones & Associates poll was conducted Feb. 19-21 and has a margin of error, plus or minus, of 5 percent.

More here.

A Tough Look at the Utah Police Files Exemption

Amen, Amen:

Salt Lake City Police Chief Chris Burbank and police union President Tom Gallegos are tight.

Which explains how Gallegos can still be on the job after harassing two female co-workers - "I probably should not be alone in a room with you when you're on your knees," he told one - and sending porn from his city computer (a felony). Instead of firing Gallegos, Burbank has filled his personnel file with letters of reprimand.

Gallegos probably would rather not have the dirty details of his on-the-job sexual harassment training revealed. But even Chief Burbank couldn't help him.

West Jordan Republican Sen. Chris Buttars can. He's sponsoring legislation that would allow cops like Gallegos - with the complicity of police chiefs like Burbank - to keep their disciplinary records secret. Under the bill, which is backed by the Utah Chiefs of Police Association, officers would have to consent to release information about their bad acts.

Buttars' bill is part of lawmakers' annual chipping away at Utah's public records law. Rep. Mel Brown, R-Coalville, is sponsoring legislation that would allow government agencies to classify the minutes of meetings as "protected drafts." Orem Republican Sen. Margaret Dayton has carved out a special exemption allowing lawmakers to get "private, controlled or protected" information.

More here.

Bad Bill Department: Secret Police Records?

The state's largest police department and Salt Lake City Mayor Ralph Becker are backing a controversial bill that would severely limit public access to the disciplinary records of police officers.

Police Chief Chris Burbank this week cast the effort as a way to put city cops on par with Salt Lake County officers who enjoy greater protection of disciplinary records. In what could be a litmus test for the new mayor on records-access issues, Becker said he is taking the chief's advice.

"On the advice of our police chief, we support it," said Helen Langan, a spokeswoman for Becker. "It's a sensible thing to do."

SB260, sponsored by Sen. Chris Buttars, would give police throughout the state the same exemption carved out for county officers: disciplinary charges against them would not be made public unless the officer appeals the sanction or agrees to open the records.

Public watchdog groups opposing the bill, now before a Senate committee, say it is a way to cloak information that should be available to taxpayers who support police departments.

"Just because the county officers have this secret police system doesn't mean we want to have a statewide police system of secrecy," said attorney Michael O'Brien, who represents the Utah Media Coalition, of which The Salt Lake Tribune is a member.

More here.