Utah lawmakers look to dissolve, replace State Records Committee. Here's why that matters

Yahoo

14-02-2025

The Utah Capitol in Salt Lake City is pictured at dusk on the last night of the legislative session, Friday, March 1, 2024. (Photo by Spenser Heaps for Utah News Dispatch)
Utah's media organizations — including Utah News Dispatch — are joining arms to stand against a newly-unveiled bill being considered by the Utah Legislature that would dismantle a long-standing committee that decides whether government records should be released to the public.
Since it was created in 1992, the seven-member State Records Committee has heard appeals from journalists and other Utahns when governments deny access to records. But with SB277, Senate Majority Assistant Whip Mike McKell, R-Spanish Fork, wants to not only replace that committee with one decision-maker, but also change the standard that determines whether Utahns should have access to the record — or not.
If SB277 becomes law, it would create a new office within the Division of Archives and Records Service called the Government Records Office, and it would entirely replace the State Records Committee with the director of that new office. The bill would require the governor to appoint a director who is an attorney that's 'knowledgeable regarding state law and practices relating to records management.'
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Importantly, the bill would also strip what's known as the 'balancing test' from Utah law. It's a provision that has long required officials to release protected records if it's determined that the public interest in the record is greater than or equal to reasons for keeping it secret.
The Utah Media Coalition — which includes Utah News Dispatch, The Salt Lake Tribune, the Deseret News, KSL-TV, KSL NewsRadio, KUTV 2 News, KTVX ABC4, FOX13, the Utah Press Association, the Utah Headliners Chapter of the Society of Professional Journalists, and the Utah Investigative Journalism Project — issued a statement Thursday opposing the bill.
Utah's existing Government Records Access & Management Act (GRAMA) protects the public's right to know how their government conducts business so Utahns can hold their elected officials and government agencies accountable, the coalition said.
'SB277 will weaken GRAMA and increase government secrecy by abolishing the State Records
Committee and prohibiting government officials, appeals boards, and the courts from ordering the release of records even when there is no good reason to keep them secret,' the Utah Media Coalition said.
The media coalition also urged lawmakers to preserve the 'balancing test,' calling it the 'beating heart of GRAMA.'
'Without it, government could withhold records even if the public interest in disclosure was compelling and the interests favoring secrecy were non-existent or minimal,' the Utah Media Coalition said. 'The public interest balancing test has been part of GRAMA since the very beginning, and for good reason – it is an essential check on government secrecy, malfeasance, and misconduct. Public transparency laws should serve the public interest, not discard it in favor of categorical secrecy, which is what SB277 does.'
McKell, in a media availability with reporters on Friday, defended his bill, saying it's meant to address 'inefficiencies' and replace the State Records Committee with someone with more 'legal experience.'
McKell pointed to a recent legislative audit that found in 2023 it took an average of 156 days for the State Records Committee to issue decisions.
'I think 156 days is way too long,' McKell said. 'I want my constituents to have an opportunity to go through that appeals process and get some finality quicker, and that's the concern for me.'
In recent years, the number of appeals heard by the State Records Committee has increased. In 2024 — even though the body faced delays due to several vacancies — the committee issued 85 decisions and orders, the most orders the committee had issued in a year. In 2023, the committee issued 63 orders, 53 in 2022, 74 in 2021 and 55 in 2020.
McKell said the number of cases being sent to the State Records Committee is 'climbing' — and he's also worried about whether the volunteers serving on the committee have the right amount of legal experience.
The committee is currently comprised of the director of the Division of Archives and Records Services or his designee, a Utah League of Cities and Towns representative, two citizen representatives, a media representative, a private sector records manager, and an individual with expertise in electronic records and databases.
'Not one person on that list is, in my view, has training to issue subpoenas, compel testimony or evidence, impose fines and make legally binding decisions,' McKell said. 'I just think we can do better.'
The Utah Media Coalition pushed back on that claim, arguing the committee has 'served Utah well by providing members of the public an informal, speedy, and inexpensive forum to exercise their right of access to public records.'
'The Committee should be retained and strengthened, not abolished,' the coalition statement said. 'The fact the Committee is made up of volunteers from diverse public and private employment backgrounds is a strength, not a weakness. The Committee has deep expertise on GRAMA issues — and gets the law right.'
The media coalition added that the committee's decisions are affirmed by the courts 'a whopping 98% of the time, so clearly law-trained judges think the Committee is getting it right.'
As for his reasoning for eliminating the balancing test, McKell said 'we need objectivity instead of subjectivity.'
'We want to follow the law more than anything else,' he said, arguing the current balancing test allows for too much subjectivity when it comes to releasing sensitive records like those perhaps involving sexual abuse or sexual assault.
In a recent media availability, when pressed for examples of cases in which he believes the State Records Committee released records he thinks should have been protected, McKell declined to point to any specific examples.
Asked how it would help address 'inefficiencies' to hire one person to handle records appeals, McKell said he believes it's a matter of expertise.
'I think a lot of the backlog is, as I've reviewed it, is we have people who simply don't have the skill set today to run that office,' he said, calling the case backlog 'scary.' He said judges and attorneys know how to sort through a 'large volume of cases, and they find a way to get through it.'
'We need to clean up the system,' McKell said. 'It's been broken for a while.'
But Jeff Hunt, an attorney specializing in the First Amendment and media litigation, called SB277's impact to Utah's government transparency laws 'extremely problematic.' He said it could do permanent damage at a time of already deepening distrust in government and institutions.
'It's going to do irreparable harm to our open records statute, and it's going to further undermine trust and confidence in government,' Hunt said, 'because the public is not going to find out what its government is doing if they pass this bill. It's going to make it much harder to have any kind of transparency and accountability.'
Hunt called the balancing test 'so vital,' and said there's a 'long list of very important records' that would have not been released without it. They include:
Names of lobbyists and subcontractors who received more than $5 million in taxpayer money, in the case Big Game Forever v. Peterson.
Records relating to a criminal investigation in campaign finance violations by Ogden City Mayor and City Council candidates, in the case Schroeder v. Utah Attorney General's Office.
Records relating to public corruption charges against a Weber County Commissioner, in the case McKitrick v. Gibson.
Independent report of sexual harassment allegations concerning a Salt Lake County chief deputy clerk, in the case Deseret News Publishing Co. v. Salt Lake County.
Police interviews related to officer-involved shootings in the case West Jordan v. State Records Committee.
Contributing: Alixel Cabrera
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