Utah governor signs controversial FOIA bill

Utah Gov. Gary Herbert signed into law Tuesday night a bill that amends the state's open records law to allow for more government privacy. The controversial House Bill 477 moved swiftly through the Utah Legislature late last week, but was recalled by the Senate on Monday to delay the date it goes into effect due to pressure from the governor, citizens and transparency advocacy groups.

H.B. 477 modifies provisions of the Utah Government Records Access and Management Act. The bill "provides that voice mails, instant messages, video chats, and text messages are not records subject to the act, with some exceptions." It also modifies the payment mechanism — for instance, it allows for the cost of "overhead" to be included in fees — so that there is a larger financial burden on the public when requesting government records. The bill also provides that if the government official or agency from which the documents are requested anticipates the possibility of litigation, records can be deemed protected.

The bill was recalled from the governor's desk on Monday to add an amendment to change the bill's effective date to July 1. The amended bill was then passed by the legislature and sent back to Herbert. The change in the effective date will purportedly allow for additional time to discuss possible changes before the law takes effect.

The Legislature plans to have a special session this summer to debate any changes to H.B. 477. Linda Petersen, president of the Utah Foundation for Open Government, said that this debate could amount to nothing if there is not a meaningful response by citizens. "[The governor] did say that he wanted there to be discussion on the bill, and that perhaps he would call a special session in June. But I think it's all rhetoric, unless the public pressure mounts," she said.

Mike O'Brien, a Utah media law attorney, noted that this process of signing a bill into law while delaying the effective date to discuss changes is a "strange procedure."

At a rally held on Tuesday to speak out against H.B. 477, the Utah Foundation for Open Government announced the creation of the Utah Citizens FOI Network. "Between the Network and UFOG and other efforts from other groups, we hope that we can maintain the groundswell and build it to where the Legislature cannot ignore us," Petersen said.

Phone calls to Herbert's office and to Rep. John Dougall, R-Highland, the main sponsor of the bill, were not immediately returned.