The following was written by The Utah Investigative Journalism Project in partnership with Utah News Dispatch. Reprinted under Creative Commons license CC BY-NC-ND 4.0.
Utah lawmakers are not only trying to close off your access to records about how the government does (or doesn’t) work — they want you to pay the bill for it.
Two bills are taking direct aim at the public’s right to know and they are shooting through the session like a bullet.
HB69 At first this bill was focused almost entirely on election and voter records. Then at that last minute, Sen. Calvin Musselman, R-West Haven, snuck in language to make it nearly impossible for someone who sues the government over denied records and wins to recover attorney fees.
In 2019 my nonprofit The Utah Investigative Journalism Project sought records of how a nonprofit was spending millions in taxpayer dollars to lobby for the delisting of the gray wolf. We won at the state records committee but had to take the matter to court. We thankfully got pro bono legal counsel that got us the records we were after showing the head of the nonprofit was using the money to pay his younger brother as an employee. But it was a long and costly fight that lasted almost four years. During that time our attorneys racked up six figures in expenses.
Our small nonprofit would have never been able to afford that legal representation on our own. And those attorneys would not be able to take a case like that in the future if it meant being denied just compensation for exposing government secrets.
But here’s the even scarier part — if this bill passes, any government agency knows they can deny ANY citizen’s request for records, not just journalists, take it to court and know the other side will likely back down because they can’t afford the legal bills.
Worried about how your city, county or the state is spending your tax dollars? Guess what, if you request records and they don’t want to give them to you, they can use their government attorney — PAID WITH YOUR TAX DOLLARS — to take it to court and that will be that.
Keep in mind every government agency has a lawyer or can hire one with taxpayer funds. And some agencies are just chock full of them. Even some agencies that have been riddled with controversy for over a decade *cough Utah Attorney General’s Office cough.*
The bill says that attorney fees can be recovered if it’s proven that the records denial was done in “bad faith.” But that is a ridiculously high burden to get over. And if you haven’t noticed, lawyers are paid and duty bound to defend their client’s position even if it is in bad faith — especially if it’s in bad faith!
It shouldn’t be a surprise that the best lawyers tend to defend the guiltiest clients. Alan Dershowitz is one of the most successful criminal defense attorneys in the country and has defended high-profile clients like OJ Simpson. He once noted that the oath to tell the “whole truth” only applies to witnesses in court. For lawyers, what matters most is winning.
“The American justice system is built on a foundation of not telling the truth,” Dershowitz said in his book “The Best Defense.”
SB277 Sen. Mike McKell, R-Spanish Fork, has a bill that will replace the State Records Committee, an independent body that decides on records disputes, with a single lawyer appointed by the governor and approved by the Senate.
That’s a red flag on its own, but worse is that the bill takes out of state law the “balancing test.”
The “balancing test” says that when the public’s right to know and the government’s right to secrecy are equal, then the public’s right to know wins out and an otherwise protected government record should be made public.
It gets worse. Previously government lawyers could argue that a public record be made confidential if there was a compelling reason, but they also had to argue against the balancing test. If this bill passed a judge could hear the government’s argument for secrecy but would not be able to consider the public’s right to know.
Now government lawyers will have more power and more financial incentive to block public records previously considered 100% public under the law.
With these two bills the scales of justice, balancing secrecy against open government, will be slammed down against the public.
Eric Peterson is the Executive Director of The Utah Investigative Journalism Project and a board member of the Utah Headliners Chapter of the Society of Professional Journalists.
