In this electronic era of human life, where vast amounts of information can be held in a pocket, one governmental agency tasked with weighing the desire for privacy against the necessity for transparency has been busy.
Over the past five years, the Utah Public Records Committee has seen the number of appeals it handles increase by 42 percent. And in 2015, the committee saw the largest single-year spike in appeals since the Government Records Access and Management Act (GRAMA) was born in 1992, with 108 notices of appeal filed—a 33-percent jump from 2014.
So far, in 2016, the committee, which is overseen by the Utah Division of Archives and Records Service, is on track for another record-breaking year.
"It's going up," says Patricia Smith-Mansfield, the state archivist and the chair of the records committee. "I also know that for this point in April, we're higher than last year. We are increasing in the number of appeals and appeals requests as well."
Why the increase in appeals, Smith-Mansfield says, is difficult to say. But she suspects a number of factors are contributing. Appeals heard by the committee have climbed steadily since 2012, when Sen. Curtis Bramble, R-Provo, made a couple of tweaks to GRAMA. Through Senate Bill 177, Bramble created the position of records ombudsman—a single person—Rosemary Cundiff, who organizes mediation sessions between various parties and also assists anyone with questions about the appeals process and GRAMA.
Smith-Mansfield says Bramble's bill also expanded the scope of appeals that can be heard by the records committee. Prior to 2012, Smith-Mansfield says municipalities and other nonstate agencies had the option of setting up their own appeals board. In places where this occurred, a person requesting public documents would first ask for records from the city, appeal a denial to the city's chief administrative officer and then appeal that denial to the city's records committee. If a municipality's records committee also issued a denial, the next step in some cities was district court, not the state records committee. Now, all seekers of records can appeal to the state records committee before going to court.
Another important development, Smith-Mansfield says, is the widespread use of text messaging and email. Where public employees once had to pound out correspondence on a typewriter—a fairly deliberate process compared to sending a quick email—government workers are now texting and sending massive troves of electronic correspondence.
When requests for emails and texts arrive on the desks of government officials, Smith-Mansfield says fulfilling the requests can get complicated because bits of emails might be private, or at least need to be reviewed to ensure they are not private.
"While correspondence is generally public, it might have things that are protected or private," Smith-Mansfield says. "So it's not as straightforward. It's much more complicated."
Regardless of whether there are multiple appeals being heard or just a couple, a date with the records committee is typically a fascinating way to spend an afternoon. Today's meeting is no different, with eight appeals being heard.
Among them is an appeal by the Utah Rivers Council, which sought and was denied a debt schedule for the billion-dollar Lake Powell Pipeline from the Washington County Water Conservancy District.
Zach Frankel, executive director of the Rivers Council, says the water district has claimed in media reports that it is has a debt schedule to pay for the Lake Powell Pipeline.
Frankel says his organization would like to see the debt schedule, but the water district has balked, saying the document is proprietary.
Woven into Frankel's appeal is another possible reason why the records committee is seeing the number of appeals swell.
A debt schedule detailing how public money is going to be paid back is a distant cry from a records request seeking a cache of emails from a governor. While Frankel says he doesn't follow all of the ins and outs of GRAMA, he says that having to go to the appeals committee for basic public documents that detail how public money is to be spent is becoming more routine.
"We're having to go to the GRAMA appeals board for a debt schedule. That says it all," Frankel says. "Can you imagine going into a bank and asking to see a copy of your mortgage payments and them saying to you: 'Your mortgage payments that you're going to have to make in the future are secret?'"
While the number of appeals has risen steeply in recent years, it is unclear if it is due in part to an across-the-board rise in GRAMA requests. There is no statewide tabulation of the total number of GRAMA requests filed. Of the 108 notice of appeals filed in 2015 with the records committee, 19 cases were resolved through mediation, while the committee ruled favorably for another 11 appellants. Since the creation of the records ombudsman, appeals that make it before the records committee appear to have a slim chance of succeeding. Twenty appeals were denied in 2015, compared to 11 in 2011.
The numbers also show that more of those who are denied at the records committee take it a step further to district court. In 2011, no appeals went to court, while in 2015, 11 cases found their way before a judge.
