working group week five

I was at a conference in Florida last week and missed the subcommittee meeting. Jeff Salt brought me up to date. Here are his thoughts below followed by LaVarr Webb's summary of the subcommittee's recommendations, along with a schedule for the remainder of the meetings from Ric Cantrell:

The meeting went well, with lots of good back and forth like the previous week's meeting. I was more involved in the discussion and had less opportunity for taking notes. Levar was going to send out summary, but don't know if he did or not. I'm still not in the email list for this working group according to the Senate staff working with the group.

We revisited the fee waiver issue, and it looks like fee waivers will remain, but no new category for qualifying for a fee waiver for indigent people. Apparently, the third category for fee waivers covers this category, but not exactly. The third category is mainly for indigent prisoners who need records for court proceedings that affect their rights. Similar, but not the same as indigent people in general, or ability to pay.

Fees assessed for actual costs was discussed again, with agreement on basic costs based on lowest cost staff available and qualified to research and compile the records, but agreement that indirect and overhead costs can go too far. A state mandated formula for calculating costs was recommended that would be used by all government entities, but of course, the final cost would vary from government entity to government entity.

More discussion regarding centralizing public records as they become classified as public, and a common internet database, and a graduated formula for government entities to comply. Emphasis was on getting local government entities to classify records as public to avoid costs of GRAMA requests.

Timeliness was also discussed at length.

Voluminous and extraordinary circumstances were discussed, but the group realized that nothing could be done to quantify these standards. So, no recommendation on these standards. Levar should have the recommendations for this topic, but nothing all that earth-shattering.

Dougall's business day question was briefly discussed, but didn't go too far because of the difficulty of dealing with the  4 and 5 day work week, which has been affected by the legislature's veto override this past weekend.

Nancy Lord came and participated in the meeting and was surprised at the opportunity to speak and the agreement among the committee members.

LaVarr Webb:

Cost & Timeliness Subcommittee

Conclusions & Recommendations

May 11, 2011

1.      In the context of our discussion, three categories of government records exist:

a.       Records that are clearly public, that should be immediately available, at no cost. Each branch, department, agency, and subdivision of government should be required by statute to identify these records and make them immediately available to the public, at no cost. We recommend that a central, searchable, on-line repository/database be created by the state to which these records can be uploaded and posted, available to anyone with Internet access. Precedent exists for this sort of repository.

This category covers the vast majority of records and eliminates the issues of cost and timeliness for these records.

b.      Records that are public, but will require time and effort to make available. This is the category resulting in disputes over cost and timeliness. We suggest:

                                                  i.       Establish by statute a standard fee formula, defining such things as full employee/labor costs (including benefits); lowest cost available employee; overhead and administration. Each government entity can then plug its own data into the formula to determine fees. This will make fees more standard and predictable.

                                                ii.      Publish fees so they are available and transparent.

                                              iii.      Provide more guidance on fee waivers, but allow significant agency discretion, with quick appeal to the State Records Committee or courts.

                                              iv.      Timeliness: We don’t recommend significant changes to current statute. Deadlines must be reasonable, but with flexibility to deal with large, complex requests. Allow quick appeal to the State Records Committee. Publish and make available deadlines. Some sentiment to provide flexibility (more time) for part-time elected officials who must respond to a GRAMA request.

c.       Records that are not public records (not in our subcommittee scope of work to determine what these are.)

2.      Other recommendations to improve the GRAMA process, reduce confusion, and encourage consistency.

a.       Require on-line and/or in-person GRAMA training, and/or GRAMA certification, for relevant employees at all levels of government to create more consistency in the application of the law.

b.      Provide and publicize at relevant government offices and on-line, easy on-line access to information about how to navigate the GRAMA process (including appeals process), the rights of those requesting records, importance of privacy, etc.

Schedule:

GRAMA Working Group,

Lane Beattie asked me to pass on some scheduling information to you.

As you know, our next meeting will be this Wednesday, May 11th, 9 a.m. to 12 p.m. in Senate Building, Room 210.

The group will NOT meet on May 18th (legislative interim day) - but subgroups may choose to schedule workmeetings that week. 

Whether we meet on May 25th is TBD - we could meet as a group or give subgroups another few days to finalize their work. 

Then we'll meet again  - for what might be our final meeting - on Wednesday, June 1st.   Plan on 9 to 12.

Thanks! Let me know if you need any extra assistance.

Ric

Working group thoughts Week Four

On Wednesday (4/27/11) after hearing from the public for about 30 minutes, the GRAMA working group broke out into four sub-committees. Chair Lane Beattie instructed those committees to meet for two weeks and then to bring back recommendations to the main working group May 11. (Beattie will not be there that day but will ask someone else to chair the meeting.)

I was on the Fees and Timeliness sub-committee composed of me, chair LaVarr Webb, John Dougall, Mark Johnson , Steve Handy, Liu Vakapuna and Janet Frank.

Jeff Salt sat in on the meeting and was included equally in the discussion. The committee set aside the questions prepared by Lane Beattie and first focused on public records.

At the outset,  LaVarr Webb said he wanted to look at how both GRAMA and HB477 addressed these issues.

John Dougall made the proposal that we recommend that all public records of any government entity in the state be posted to a central website similar to the state legal notices website. Those entities could also post those records to their own websites or put a link to the state site on their websites. All those records would be accessed free of charge.  Smaller entities could phase this in over time if they currently do not have the technology/funding to do so.

Additionally, if a record initially deemed private or protected by the governmental entity is, after being subject to the balancing test, found to be public, it should automatically be added to the public database at that point.

Mark Johnson was asked by Dougall to put together a list of records that would qualify and bring it to next week’s committee meeting.

All other records would be subject to reasonable fees. There was a long discussion on what constituted “reasonable fees.”  Both Steve Handy and Mark Johnson said that filling GRAMA requests can often be quite burdensome to local entities such as cities or counties and want to find a way to address that.

Committee members agreed that taxpayers already fund the maintenance of government records but most felt the costs associated with access should be borne by the requestors.

Most of the committee felt that since the majority of GRAMA requests come from law firms and businesses who use the information for commercial gain, that the taxpayers should not have to fund those requests. They also felt that with the exception of those that qualify for fee waivers, all requestors should pay the same fees.

Those fees, they said, should reflect the full costs of employees including benefits, as is common accounting practice in the business world.

I expressed the concern that those costs could be made to be prohibitive if an entity wanted to deny the requestor access to the record(s). A compromise suggestion that it be specified what those costs referred to and that a formula (used commonly in accounting practices) be applied  to determine the costs was accepted by the group.

Another issue that came up was regarding who processes the GRAMA request. Mark Johnson said that often the lowest paid employee that could process the request might not be available so the compromise was struck that we recommend that the statute be changed to read: “the lowest paid employee available.”

Timeliness

It was acknowledged that sometimes requests are not processed by the dates outlined in the statute but Johnson and others said that’s often because it takes longer and when the request is made, sometimes staff does not know how long  it will take to process the request. There was much discussion about the “extraordinary circumstances” outlined in the statute. Another issue was “voluminous “ requests since “voluminous” is not defined in the statute.

Jeff Salt shared his experience where sometimes requests are not processed (or are denied and sent through the appeals process) in enough time for the requestor to have the records he/she needs to comment in public hearings or appeal decisions of the governmental entity in the time outlined in other statutes. He was asked by LaVarr Webb to craft some language that could address those issues and bring it to the committee next week.

It was also expressed that many elected officials and the staff they oversee are so concerned about any possibility they might break the law re: GRAMA, that it is often routine to have attorneys review all GRAMA requests which adds to the cost and the time it takes to process a request. How to address those concerns was left for discussion this week.

Another issue that came up is who should qualify for a waiver. The current language in the statute is very subjective.

The statute says that the media is automatically considered as working for the public good. “Any person who requests a record to obtain information for a story or report for publication or broadcast to the general public is presumed to be acting to benefit the public rather than a person [63G-2-204 (iv) (4).

However, whether that definition is enough to address the debate over what constitutes ‘media” in 2011 was discussed. No conclusions were reached on that issue. It may come up this  week.

I will be in Florida this week and will not be able to attend the committee meeting. Jeff Salt is planning on attending and will fill me in on what happens.

I feel reasonably comfortable with the outcome of this first committee meeting. We had to compromise on fees but got them to suggest language to limit them and head off any abuse. At least there was some meaningful exchange.

I also touched base with a couple of people who were on other sub-committees or attended their meetings.

Simplification and Centralization

This committee decided to come up with two checklists, one for record keepers and another for requestors, to make the process more simple. I believe they’re going to refine the checklists next week.

Statutory Definitions

Jeff Hunt, who chaired the committee, said they came up with alternate definitions of such things as private and that they’ll present those to the working group for review. (Not sure what that meant.)

Emerging Technologies

This committee came up with a list of seven recommendations. (Thanks Kathy Van Dame) They felt their work is done and will not be meeting next week.

1. That a record be declared public or not public when it is finalized or filed. Also, that there be a directory by document name of records that are not public
2. That the state CIO (??) help governmental entities understand the requirements of GRAMA.
3. That records be released in their original structure.
4. That the state help municipalities with GRAMA requirements
5. That software to manage records be open source and available to all
6. Email may be subject to GRAMA
7. They decided not to address text messages. The technology is evolving and there are problems with retention.

working group thoughts week three - Movement?

Although much of the three hours was devoted to legislators and would-be legislator (David Kirkham) bemoaning their “lack of privacy” under GRAMA, I felt this was the first session to actually start to address the underlying issue that brought about HB477. That issue appears to be privacy – legislators’ and constituents.’

                We first heard from state archivist Patricia Smith Mansfield who spoke about classification of records under GRAMA. She does not seem to have any stake in this issue, except to make sure that people are educated about GRAMA.

                Her analysis of legislative action, particularly 305-19b, sparked a long debate about when in the process of a legislator considering putting together a bill, it should be open to the public.  Stuart Adams and others were concerned that they wouldn’t have a chance to explore issues and ideas before they’re made public. Although GRAMA exempts communications between legislators and legislators, and legislators and staff, John Fellows said some legislators would like to see an expansion of 19b so that they could “vet it [potential legislation] with various groups” before it would become public. Obviously, the issue there is that there could be potential to meet with special interests, power players and lobbyists without the public knowing about it or having access to the process.

   (19) (a) (i) personal files of a state legislator, including personal correspondence to or from a member of the Legislature; and
     (ii) notwithstanding Subsection (19)(a)(i), correspondence that gives notice of legislative action or policy may not be classified as protected under this section; and
     (b) (i) an internal communication that is part of the deliberative process in connection with the preparation of legislation between:
     (A) members of a legislative body;
     (B) a member of a legislative body and a member of the legislative body's staff; or

                Lane Beattie wanted to discuss the definitions of public, private and personal. He got input from Laura Lockhart and John Fellows on that.

                One issue is that GRAMA allows the “personal files” of legislators to be protected but does not give a definition of “personal files.” Legislative staff takes it to mean any files of the legislator kept in their office while Fellows said others “had interpreted that” to mean only strictly personal files, such as genealogy records, for example.

                When Jesse Stay asked Fellows if any legal challenges/lawsuits had been decided in favor  of the second definition, he said no. The discussion somehow then digressed into when a legislator’s grocery list could be GRAMA-able and Fellows speculating that possibly if items such as birth control were purchased.

                I objected to wasting our time even discussing such outlandish theoreticals but was firmly put in my place by Beattie who said he had heard outlandish claims from both sides of the issue and that therefore they warranted the group’s consideration.

                Much of the discussion the three sessions has been focused on “outliers” as they call them (Definition – I had to look it up: “A value far from most others in a set of data.”) – Beattie even asking the “experts” to share them with the group.  I think it’s a total waste of time and is an attempt at diversion, but Dougall later responded to me that the Legislature deals with outliers all the time and that’s what they legislate about.

                The discussion again reverted to legislators’ emails and who gets to see them. Fellows explained that there’s nothing in GRAMA to determine who goes through private emails to determine what is public so now, if their personal email is GRAMA’d, the legislator gets to go through it himself/herself and pulls out and provides what is public. Legislative staff can do that if the legislator prefers. Fellows also explained that on the state computers, they use a software program with key word searches so there is not an actual person combing through the emails.

                This seemed to reassure Adams who later said he is comfortable with that process.

                [One interesting thing that emerged: the house and senate have been on different software/computer systems that are incompatible. That means that up till now, all senate emails have had to be printed out and gone through by hand. Ric Cantrell informed the group that the senate now has the new software and that will no longer be necessary.]

                Fellows brought up the D. News vs SLCounty case AGAIN, saying that although he agreed with the outcome of the case, it showed “unwarranted invasion of personal privacy” of the county clerk and other officials.

                The issue of how soon an entity has to release a record under GRAMA came up. Fellows said the normal 10 days but indicated that GRAMA gives the legislature an exemption to take longer when it is in session.[I couldn’t find any reference to this anywhere in GRAMA] Said there’s also a legislative rule about it.

                Dougall believes legislators need to be compensated for the “hours” and “weeks” of personal time the legislator would spend going through personal emails to pull out the public emails.

                Holly Richardson again brought up the concern that constituents would consider their emails to their legislators to be private, not GRAMAable.

                My response was that Utah do what some state do who have a disclaimer in the state email program that informs the person leaving the email that it is considered a public document. If the constituent had something of a sensitive nature to discuss, then they could choose to phone their legislator instead.

                One of the more bizarre set of comments came from David Kirkham, who made the case that with the existence of Wikileaks, sensitive constituent information could be leaked and that the privacy of constituents needs to be protected.

                [“There was a lot of information that was leaked out, and anytime somebody goes through a lot of these emails that you’re talking about, there’s a potential for these emails to get out.  I don’t think we can discount that.  There are massive privacy issues involved.  Again, my, my concern is for the privacy of the citizens who, who uh, who are sending these emails.”] 

                The only comments Kirkham seems to make at these meetings is to back up comments by Richardson, Bramble (who was not present yesterday) or Dougall.

                Jason Williams really supports the idea of an ombudsman but he seems to see him/her as a person who could take over what legislative counsel does with GRAMA requests.  Fellow respondetd that there could be an issue of separation of powers and unlawful delegation of power.

                Jesse Stay made the case that technology could address most of the issues from software programs to search email to programs to easily classify text messages as public or private. There was some pushback saying state technology is behind the times because of budget issues (Laura Lockhart) and that the technology might be beyond some (can’t remember who).

                Even though Beattie had said the first meeting there would be time for public comment at all meetings, he did not allow any time for public input yesterday, which upset several members of the public. His smiling reply was that no, he wasn’t going to allow public comment this time because he had allowed one and a half hours of it last time. Apparently our benevolent smiling dictator will change the rules (which only he knows) when it suits him.

                 When asked by me where we go from here and how long it will take, Beattie says he wants to get subcommittees formed to discuss the issues ( he mentioned: should 19b be expanded; what’s the definitions of public, private and personal ) this week. He wants to skip next week but believes the working group’s work will be finished “within May.”  

                At least yesterday we finally began discussing some of the issues and at least Stuart Adams indicated a willingness to be satisfied that his privacy concerns could be addressed by technology.

                With 25 people participating and Beattie controlling the mics, there’s no chance for “meaningful discourse.” Maybe with the subcommittees, that might be possible.

                It was also pointed out that as a group appointed by the Legislature, all of our doings should be covered by GRAMA and that therefore all supplemental materials such as emails between group members should be on the website. Beattie was very surprised by this and said this had not been his understanding but that he would make sure those materials would be on the website.