After more than three decades of resolving disputes over public access to records, the Utah Legislature may soon consider a bill that would dismantle the State Records Committee. 

According to reporting from the Salt Lake Tribune, Utah Senate Majority Assistant Whip Mike McKell is working on a proposal that could eliminate the committee and direct records disputes to a single administrative law judge (ALJ). 

“We’re considering appointing someone with legal training—like an ALJ—who would have a law degree, and using the same appeal process as is currently required in district court,” McKell explained in a recent interview. “Having someone with legal experience makes sense for these cases.” 

The seven-member State Records Committee was established in 1992 under the Utah Government Records Access and Management Act (GRAMA). It includes trained archivists, citizen appointees from the governor, and a representative from the media. The committee hears appeals from the public and news organizations when state agencies or local governments deny access to public records.

David Cuillier, Brechner’s director, spoke with the Salt Lake Tribune, suggests that Utah take inspiration from Ohio’s system, which allows individuals to take denied records cases to a court of claims with a small fee and a quick ruling, without needing a lawyer.

“I believe that shifting that role to the judiciary, in a GRAMA small claims court of sorts, is the way to go,”  Cuillier said in the report.

Ohio’s system, implemented in 2016, has resolved over 700 cases, with a near 60% success rate for appellants, according to a study conducted by Kent State University professor Mitch McKenney (and winner of this year’s FOI research competition, co-sponsored by Brechner and the National Freedom of Information Coalition – updated version to be published this spring in the Journal of Civic Information).

The work of the State Records Committee has recently been hampered due to the Senate’s failure to confirm three committee appointments, leaving the panel unable to meet and forcing the cancellation of several hearings. New committee members were confirmed in December, but delays had already caused a backlog of pending appeals. 

That is the problem with politically appointed information commissions that are subject to meddling, Cuillier said, like what happened in Mexico. 

“Mexico had the best information commission system in the world, hands down,” Cuillier said. “It was pretty insulated, but not enough. Eventually the intrusions led to its dismantling during the past few months. The incoming administration had to change the Constitution to do it, but they did. You know it works when the government works hard to shut it down.” 

Some states have created information commissions that have merit, Cuillier said, like Pennsylvania and Connecticut. They try hard to be independent, but it is a challenge. They are better than pure ombudsman offices, he said, which often are placed within attorneys general offices – the government’s attorney. Cuillier said an independent, affordable, quick enforcement mechanism could help at the federal level, either in the judiciary or in existing entities, like the Office of Government Information Services. 

In addition, other bills introduced this session could impact Utah’s public records system.  

Senate Bill 163, sponsored by Sen. Wayne Harper, proposes several changes to GRAMA. The bill would adjust the criteria for what constitutes a “record,” require more specificity in records requests, allow certain police reports to be withheld even if some information has already been made public, and extend the time frame for government entities to respond to requests from 10 to 15 days.  

It would also replace one citizen member of the State Records Committee with a representative of law enforcement.

Posted: February 11, 2025
Category: Brechner News
Tagged as: Brechner FOI Project, Brechner Freedom of Information Project, FOI, FOIA, open records laws, Secrecy Tracker