A bill restricting the public’s ability to recoup legal costs if they have to fight a public records denial in court has passed the Legislature, while another that would dissolve the state’s volunteer records committee is making its way through.

The House Wednesday morning voted 54-18 to give final passage to HB69, saying that in cases where a resident or journalist seeking records under the state’s public records law, known as the Government Records Access and Management Act, or GRAMA, wins in court, they are only able to recover their attorney fees if they are able to prove the government acted in “bad faith” in denying the records, an exceptionally high bar.

Rep. Andrew Stoddard, D-Millcreek, warned ahead of the vote that the restriction on recovering legal fees would price out Utahns seeking government records.

“What we’re doing is going to discourage people from bringing these records requests,” Stoddard said. “These types of things cost a lot of money, and so to require someone to prove bad faith … it’s going to have a chilling effect on people who are looking to bring transparency in the government.”

Sen. Calvin Musselman, R-West Haven, added the fee provision to the bill, originally focused on voter information privacy, ahead of the Senate’s vote, meaning the public was never given an opportunity to weigh in.

Following the House vote, in which four Republicans joined Democrats in opposing the change, House Democrats issued a statement denouncing HB69 as setting “a nearly impossible standard” for Utahns to meet in order to recover their legal fees, even when they’re in the right.

“Over the years, transparency lawsuits have uncovered critical information about government spending, law enforcement actions, and public officials’ conduct. This bill would discourage those efforts, making it easier for important information to remain hidden without opportunity to surface,” the statement read.

The bill now heads to Gov. Spencer Cox to either sign, veto, or allow it to become law without his signature.

Bill would replace diverse records committee with single governor-appointed attorney

Lawmakers on Tuesday also advanced SB277, a bill that would replace the State Records Committee, the body that decides which government records should be released to the public, and replace it with a paid, governor-appointed attorney.

The bill’s sponsor, Senate Majority Assistant Whip Mike McKell, R-Spanish Fork, said the bill will make public records requests more efficient, eliminating the backlog of appeals. Members of the public, including the Utah Media Coalition, worry that it could lead to less transparency in the Beehive State, while consolidating too much power under the governor.

After hearing from 21 people during a public comment period — 20 of them speaking against the bill — the Senate Government Operations and Political Subdivisions Committee voted 4-2 to advance the bill. Republican Sens. Daniel Thatcher of West Valley City and Ron Winterton of Roosevelt voted against it.

Opposition to the bill spanned the political spectrum, with representatives from the Eagle Forum to Mormon Women for Ethical Government to the Utah League of Women Voters speaking against it.

SB277 would overhaul an important piece of GRAMA. If journalists, attorneys or members of the public request records permitted under GRAMA, and that request is denied, they can appeal to the State Records Committee.

The committee is made up of the director of the Division of Archives and Records Services, a representative from the Utah League of Cities and Towns, a media representative, a private sector records manager, two representatives from the public, and someone with experience in electronic records.

But, citing a backlog of appeals with the committee, McKell is proposing to eliminate the committee and replace it with an attorney, appointed by Utah Gov. Spencer Cox, who is “knowledgeable regarding state law and practices relating to records management,” according to the bill.

In 2022, only one case was actually heard within the 73-day deadline set out in the law, said McKell, while the average was 156 days. “That’s just simply too long,” he said.

McKell also has concerns with the qualifications of the committee, who make legally binding rulings.

“They are tasked with quasi-judicial decisions,” McKell said during Tuesday’s meeting, “not one is required to have a legal background or law degree.”

It will now move to the full Senate for consideration, although some lawmakers who voted “yes” during the committee meeting expressed reservations about the bill, hoping to see some changes as it moves through the Legislature.

“I do worry somewhat about the perception going forward. But I’ve been up here long enough to know how this legislative process works. You keep something moving, you put some pressure on it and you get some movement,” said Sen. Evan Vickers, R-Cedar City. “Hopefully we can get to a spot where we can feel good about it.”

McKell’s bill has already undergone some changes. It originally included a provision to eliminate what’s called the “balancing test,” where officials determine whether the benefit of releasing a record to the public outweighs the government’s reason for keeping it secret.

That’s helped ease some of the concerns from the Utah Media Coalition, of which Utah News Dispatch is a member. Michael Judd, an attorney representing the coalition, told the committee on Tuesday that the amendment was a significant step forward. But there are still more changes that need to happen “to try to get this right,” said Judd. “We need to keep working.”

Judd pushed back on the idea that a single attorney is better equipped to make decisions on public records than the current committee.

“I don’t think that the media agrees with that, I don’t think the public agrees with that,” he said.

McKell called the process “broken” on Tuesday. “It’s too slow, it’s too inconsistent, and we just need to do better,” he said.

But members of the public said his approach was flawed.

It would cost taxpayers $447,900 each year to fund two full-time positions under the new system, which critics say could be distributed among the current committee or used to make the process more efficient; McKell’s concerns about the qualifications of members of the current committee could be solved by a policy that requires an attorney to sit on the committee. Critics also said the change would give too much power to the governor, who could fire the director at any time; and that the existing committee, in almost all cases, makes the correct decision regarding records.

“As with all of you, decisions are better made when there’s a committee of people to be able to talk about their thoughts and share their thoughts. That’s always been the case with the (State Records Committee), 98% of the decisions that the (State Records Committee) has made have not been overturned by any court,” said Tom Haraldsen, a journalist who formerly sat on the committee.

Utah News Dispatch is part of States Newsroom, the nation’s largest state-focused nonprofit news organization.