February 1, 2008

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Article

The Limits of Secrecy

What's Public and What's Not in Government Records

Gretta Spendlove

February 1, 2008

In August 2007, six miners were trapped underground during the collapse of the Crandall Canyon Mine in Emery County. The United Mine Workers of America and families of the victims accused the Mine Safety and Health Administration (MSHA) of improperly regulating the mine. A federal panel was set up to investigate the accident, which included interviewing witnesses, combing through documents and making site visits. The panel allowed immediate participation of state officials and the owner of the mine, but excluded the press. In October 2007, The Salt Lake Tribune, Deseret Morning News, CNN, and the Associated Press sued the U.S. Secretary of Labor to allow the media access to the investigation. The mine owner and other energy companies filed a motion to join the lawsuit and block press access, in order to protect their “confidential business and financial information.” The Crandall Canyon lawsuit illustrates one of many situations in which competing claims to privacy and disclosure are waged. The Crandall Canyon lawsuit was based on the First Amendment to the U.S. Constitution and the Federal Mine Safety Act, but other state and federal laws also contain provisions granting access to government meetings and records. Utah Open and Public Meeting Act Generally, meetings of state and local government agencies must be open to the public. That includes not only meetings of the state legislature, but also of county and city commissions, housing authorities, zoning boards, and special service districts. Government entities must give annual public notice of regularly scheduled meetings, with 24 hours notice of individual meetings. Beginning April 1, notice must be posted on the Utah Public Notice Website, as well as at the office of the public body, and must also be distributed to a media correspondent. “Meeting” is broadly defined in the Act, including workshops and executive sessions, but excluding “chance” or “social” meetings, as long as they are not used to circumvent the Act. If members of a county commission gather at a member’s home after a formal session and continue to debate county business, that may well be considered a “meeting.” The law allows closed meetings in some situations, and that’s where the controversy lies. The Deseret Morning News claimed, in February 2007, that the Jordan School District closed a meeting to discuss “security deployment,” but then discussed additional matters in violation of law. In 2001 the Salt Lake County Commission closed a meeting to conduct a strategy session on responding to an annexation petition. The Salt Lake Tribune sued to get records of the meeting, but failed. The court agreed with the County Commission that the exception allowing closed meetings to discuss pending or “reasonably imminent” litigation was applicable, even though the annexation petition would be decided by a county boundary commission, rather than a court. Utah Government Records Access and Management Act (GRAMA) Citizens can obtain copies of most state records, simply by writing a letter to the state agency involved, specifying the records desired, and referencing the Act. “Protected records” which may not be obtained include trade secrets, certain commercial financial information, records that would jeopardize individual life or safety and similar categories. Federal Freedom of Information Act (FOIA) Federal records can be obtained under the Freedom of Information Act. The FOIA requires federal agencies to make records available and penalizes them if they delay or refuse. The Privacy Act amends that the FOIA give citizens the right to see records about themselves, to correct the records, and to sue the government for violations of the Act, including unauthorized disclosure. Why It Matters to Business Businesspeople may want to be present and argue their case at state meetings that impact them. If a city is making a zoning decision or levies a tax, the business may want to hear the discussion. Simply being present while the voting takes place may impact the decision. If a contract is awarded to a competitor by a county, the business that lost may want to inspect government records to make sure the bidding process specified by law was followed. Businesspeople trying to unravel the fraud of a partner or agent may want evidence of that individual’s dealings, on behalf of them, with government agencies. On the other hand, businesses may also, like the Crandall Canyon owner, fight to keep private records private. In 2007, a federal judge ruled against the press in the Crandall Canyon investigation. Gretta Spendlove is a shareholder with the law firm Durham Jones & Pinegar. Comments can be sent to gspendlove@djplaw.com.
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