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
(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.
