The Great Utah Railroad Job: An FOI setback, and a challenge

POLICE REPORT: At approximately 16:30 hours on March 4, 2011, the people of Utah were robbed. The suspects are a pair of white males, and their mug shots and rap sheets appear here and here. The weapon, House Bill 477, is in the custody of the governor. The crime scene is here.

What was stolen from the people of Utah was open and honest government.

Unless Gov. Gary Herbert unexpectedly vetoes it, HB 477 will instantly transform Utah’s open-records law from one of the strongest in America to one of its most porous. Among other changes, it will categorically prohibit the public from obtaining government officials’ calendars, text messages, instant messages, voice mails and video chats. It will declare state legislators’ files and those of their staff members off-limits to public inspection. And it will enable agencies to impose greatly increased fees for fulfilling open-records requests.

The bill by Rep. John Dougall, R-American Fork, was sneaked through the legislature under circumstances suited to a national-security emergency — from initial committee hearing to enactment by both houses of the legislature in three days flat.

Legislators were, at least, honest about their dishonesty. They admitted that HB 477 was concealed because, if the citizens became informed about it, public opposition would make the bill impossible to pass. As the Salt Lake Tribune reported, lawmakers “acknowledged they wanted to push the bill in a nonelection year when opposition from the media would matter less.”

Their subterfuge nicely makes its own case. When elected officials know they are about to do something contrary to the public interest that well-informed voters would regard as outrageous, they do it in secrecy. Good ideas can become great ideas with the benefit of public input, and great ideas can withstand exposure to vigorous debate. The proponents of HB 477 knew that their case for greater government secrecy would collapse if subjected to scrutiny, so they made sure no scrutiny could occur.

To be clear, this bill is about protecting the ability to govern corruptly and about nothing else. Journalists are not interested in publishing legislators’ correspondence with the mythical widows and orphans whose privacy the sponsors purport to be safeguarding. But there is a legitimate public interest in the calendar entries reflecting which special-interest lobbyists are getting red-carpet access to elected officials, or the text messages that disclose officials’ government-subsidized infidelities.

Some amazingly dedicated advocates on the ground in Utah made certain that their legislature’s heist did not go unwitnessed or unreported. They started a Facebook group that immediately grew to 95 members, and helped generate a massive statewide publicity blitz putting Gov. Herbert on notice that signing Rep. Dougall’s abomination will come at great reputational cost.

It may be too late to salvage Utah’s Government Records Access and Management Act, but those who scrambled to assemble the rescue party are onto something. The country is filled with dedicated citizen watchdogs who value transparency and who are willing to devote their time and creativity to defending it. The question is how to institutionalize this rapid-response force — and how to harness technology to magnify its numbers and impact — to change the political calculus in favor of openness. Open and honest government will lose every time if it can be dismissed as a “newspaper issue.” The leadership and the pressure for reform must come from an educated citizenry.

HB 477 is over and done with, but the larger conversation should be just getting started. Bad legislative ideas are infectious, and removing entire categories of documents from the public record is a contagion that cannot be allowed to go viral.